Freedom Law

Specialist Domestic Violence Courts

Specialist Domestic Violence Courts

Queensland Law Society has praised the state government’s budget commitment to fund the Southport specialist domestic violence court permanently, and roll out two new specialist courts in Townsville and Beenleigh.

President Christine Smyth on Tuesday (June 13) said the announcement was a welcome decision, including the Queensland Attorney-General’s commitment to also refurbish all three courts.

“The Southport specialist court trial has proved a great success, with the Gold Coast being the sixth largest city in Australia, and desperately requiring more court resources for its burgeoning population,” she said.

The specialist court was announced in the 2016-17 State Budget, with QLS at the time congratulating the Government on their commitment to justice initiatives.

“The Society has consistently supported the idea of specialist courts across Queensland, and we applaud the Government for recognising that domestic violence courts are needed,” Ms Smyth said.

“Violence is a scourge in our community and domestic and family violence is a stain on our society.

“Those who suffer from these types of violence must have access to reliable and timely assistance from our justice system, and that is what these specialist courts provide.

“This is also timely as we are two days out from World Elder Abuse Awareness Day, and elder abuse was recognised in the Not Now, Not Ever Report as a special form of domestic violence.

“The announcement that the Townsville Court will also focus on culturally responsive approaches for our First Nations Peoples is also a welcome one, and I hope this will continue the discussion of the appallingly high rates of Indigenous incarceration.

“It is our hope that these two new trials are just the beginning of further targeted resources to our justice system, and another step in eradicating the scourge of domestic and family violence from our community.

Ms Smyth said that over 5,500 applications were filed at the Southport specialist court during the first year, proving that the court was of use to those in the Gold Coast and surrounding areas.

“I am pleased to see this important part of our social infrastructure continue on a permanent basis on the Gold Coast, and am equally pleased to hear that Circuit Court sittings will be held in Mt Isa and Palm Island by visiting magistrates.

“Our regional areas are often at a disadvantage with fewer court resources and specialist services.

“The Government’s acknowledgement of their need for fast and fair access to justice will – I’m sure – be appreciated by the local communities.”

Queensland Attorney-General Yvette D’Ath said that once operational, the specialist courts would help to address around 28 per cent of the civil and criminal domestic family violence matters that currently pass in front of magistrates across the state.

“Domestic and family violence is an extremely damaging issue for our society, and one that is clearly at the coalface of our court system,” Ms Smyth said.

“Each small step that we take as a community is one step closer to helping those suffering from domestic and family violence to begin rebuilding their lives.

“I look forward to seeing the Government continue to deliver further resources to our courts and improve access to justice for Queenslanders across the state.”

Not Now, Not Ever reforms effective 30 May 2017

Not Now, Not Ever reforms effective 30 May 2017

The Not Now, Not Ever report made a range of recommendations to review and amend legislation to better protect victims and hold perpetrators to account.

We have taken swift action to amend Queensland laws to ensure we have a robust, cohesive legislative framework that puts the safety and security of victims first, sends a clear message to perpetrators that domestic violence is not tolerated, and supports the broader systemic reforms underway.

Key legislative amendments passed by Queensland Parliament to date include:

Changes to better protect victims and their families

  • Greater police protection – Effective 30 May 2017, the scope of police protection notices is expanded to enable police to better protect a victim as well as their children, relatives and associates (recommendation 140).
  • More tailored domestic violence orders – Effective 30 May 2017, the duration of domestic violence orders (DVOs) is increased to a minimum of five years unless the court is satisfied that there are reasons for a shorter order. A court is also required to consider whether additional DVO conditions (beyond the standard conditions that the respondent be of good behaviour and not commit domestic violence) are necessary or desirable to better protect the victim or a named person (recommendation 140).
  • Ensuring victims’ voices are heard – Effective 29 January 2016,  the views and wishes of people who fear or experience domestic violence should be sought — to the extent it is appropriate and practicable — before a decision affecting them is made under the Domestic and Family Violence Protection Act 2012 (recommendation 129).
  • Changes to hearing of cross applications – Effective 29 January 2016, a court is required to hear cross applications together to ensure the person most at risk is identified and protected (recommendation 99).
  • Consideration of family law orders – Effective 30 May 2017, a court is required to consider any existing family law order it is aware of and whether that order needs to be varied or suspended where it is inconsistent with the protection needed by the victim or named children (recommendation 99).
  • Non-fatal strangulation as a specific offence – Effective 5 May 2016, choking, suffocation or strangulation in a domestic setting is a stand-alone offence under the Criminal Code (PDF), with a maximum penalty of seven years’ imprisonment (recommendation 120).
  • ‘Special witness’ status for victims – Effective 22 October 2015, under the Evidence Act 1977 (PDF) victims of domestic violence are automatically treated as a ‘special witness’ to help reduce the trauma of giving evidence in criminal proceedings against the alleged perpetrator (recommendation 133).

Changes to hold perpetrators to account for their actions

  • Harsher penalties for DVO breaches – Effective 22 October 2015, maximum penalties for first-time and subsequent breaches of DVOs increased to 3 and 5 years’ imprisonment respectively (recommendation 121).
  • Harsher penalties for police protection notice and release condition breaches –Effective 30 May 2017, maximum penalties for breaches of police protection notices and release conditions are increased to three years’ imprisonment (to be consistent with the penalty for a breach of a DVO).
  • ‘Ouster’ conditions for perpetrators – Effective 29 January 2016, a courts is required to consider imposing an ouster condition, to remove a perpetrator from the family home, in all applications for DVOs (recommendation 117).
  • Recording domestic and family violence related convictions – Effective 1 December 2015, the domestic and family violence context of criminal offending can be recorded by way of a notation under the Penalties and Sentences Act 1992 (PDF). This reform helps to ensure that patterns of behaviour of those who commit acts of domestic and family violence are clearly evident to police officers and courts (recommendation 119).
  • Aggravating factor on sentence – Effective 5 May 2016, domestic and family violence is an aggravating factor on sentencing for criminal offences under the Penalties and Sentences Act 1992 (PDF) (recommendation 118).

Changes to support improved service responses and other systemic reforms

  • Information sharing – Effective 30 May 2017, a comprehensive information sharing framework will commence. The framework facilitates information sharing between key government and non-government entities to enable both better risk assessment and management of serious domestic and family violence threats (recommendation 78).
    To support practitioners in the field of domestic and family violence, such as specialist services, police and doctors, to appropriately share information under the new legislative provisions, guidelines have been developed. Find out more about the Domestic and Family Violence Information Sharing Guidelines.
  • Police can refer people to specialist service providers – Effective 30 May 2017, police can refer victims and perpetrators to specialist domestic and family violence service providers, without consent, if there is a threat to a person’s life, health or safety, or if the person has committed domestic violence.
  • National Domestic Violence Order Scheme – Upon commencement of amendments to the Domestic and Family Violence Protection Act 2012 made in October 2016, model laws will be implemented to enable Queensland to participate in the National Domestic Violence Order Scheme, which will provide for the automatic mutual recognition of DVOs across Australia (recommendation 90).

Why hire Freedom Law for your family law needs?

WHY HIRE FREEDOM LAW, THE FAMILY LAW SPECIALIST?

Serving Southeast Queensland for 25+ Years

When it comes to finding the right family lawyer, you need someone who genuinely cares about your case. Choosing the right lawyer is an integral part of the family law process, and you can’t afford to risk the future or financial security of your family on the wrong representation. With Freedom Law, The Family Law Specialist on your side, you can trust that your case will be in safe hands.


Ready to learn more about our firm? Book a free confidential consultation 1300 365 108


Why You Should Consider Freedom Law, The Family Law  Specialist

  • We are 100% focused on family law – Family law is all we do, and we have an impressive record of results that demonstrates our capabilities.
  • Your lawyer will be there when you need them – We know that you want to have access to your lawyer. We are readily available to our clients.
  • You can get to know us in an initial consultation – Your choice of legal representation is too important to leave to chance. Get to know us before you make a decision.
  • You can work with an accredited family law specialist – When your future is uncertain, you can find comfort in knowing that you have a an accredited family law specialist on your side.
  • We are backed by 25+ years of legal experience – We have been handling cases in the Family Court and Federal Magistrates/Circuit Court systems for decades.

Freedom Law, The Family Law  Specialist

Is Ready to Fight for You

When you work with Freedom Law, The Family Law Specialist, you will have a lawyer with the skill to represent you no matter how complicated your case may be. Our team is highly experienced and lead by an accredited family law specialist.

We focus on family law because we care deeply about families and what happens to them, especially in times of change and transition. That concern means your lawyer will have the time and consideration to answer your calls and assist you in accomplishing your goals.

Your family deserves legal service that fits your needs – not a one-size-fits-all solution. Our in-depth knowledge of  family law and our extensive experience in negotiation, mediation, arbitration and litigation means that we have a wealth of knowledge to draw from in finding solutions that fit you.

Schedule Your Consultation: 1300 365 108

Regardless of the family law matter you currently face, you need a lawyer who will not only provide sensitive counsel, but fight for your best interests. You need a lawyer who gives you confidence, and one who will stand by you. This is what you will find at Freedom Law, The Family Law Specialist.

Call our office today on 1300 365 108 to learn more

 

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Litigation lending – do you need help with access to justice?

Litigation lending – Litigation funding – Access to Justice

Do you need financial assistance to afford legal representation in your case?

Freedom Law offers litigation lending to clients and non-clients who don’t have the upfront financial resources to pay legal costs such as lawyer’s fees, barrister’s fees and outlays such as court filing fees.

Many people face the prospect of having to represent themselves or to abandon their dispute when they don’t have the financial resources to pay the legal costs involved.

Litigation lending improves the prospects of cases winning by funding legal representation. It creates a level playing field between litigants to a dispute.

Lending for legal disputes isn’t limited to litigation (or cases). The lending can be applied to non-court based resolutions such as negotiation, mediation, arbitration and collaborative law.

Unlike many other providers, Freedom Law offers litigation lending for family law disputes as well as other areas of legal disputes.

Family law lending is particularly important in order to ensure that parenting arrangements are in the best interests of children, and property settlements are just and equitable between the parties to a relationship or marriage.

Applying for litigation lending is easy – simply contact Freedom Law (info@freedomlaw.com.au or 1300 365 108) for an application form. Results of applications are notified within 14 days.

Freedom Law are here to help – just ask us how.

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Costs ordered against mother in Rice v Asplunde dispute

Costs ordered against mother in Rice v Asplunde dispute

Fenton & Fenton

COSTS – REASONS FOR JUDGMENT

  1. The application before me is by the father seeking an order for costs in the quantum of $10,438.50 on a party/party basis following parenting proceedings brought by the mother and finalised by my order of
    1 December 2016.
  2. The mother acted for herself on her application. The father was at all times represented by solicitors and a solicitor advocate at the hearing.
  3. The mother sought orders that three children aged 14, 11 and 9 years live with her.
  4. The relevant background is set out in at [5]-[19] of my reasons.[1] Relevant to the application now before me, there had been two previous defended hearings in respect of the relevant children. The parties separated in September 2009 and first litigated in this Court in March 2010. In August 2012 Justice Benjamin ordered that the father have sole parental responsibility for the oldest child and the mother have sole parental responsibility for the younger two children.
  1. Two months after that order the mother surrendered care of the younger two children to the father and relocated to Queensland. His Honour made further orders confirming sole parental responsibility of all three children with the father and for the children to live with him in Tasmania.
  2. His Honour Justice Cronin conducted a further defended hearing in October 2013. His Honour’s orders confirmed sole parental responsibility for all three children with the father and for the children to live with him in Tasmania with holiday time with the mother in Queensland.
  3. In January 2014 the mother withheld the children after a court ordered period of time with her in Queensland. A recovery order was issued on 30 January 2014 and the children were returned to the father on
    4 February 2014. Orders for the mother to spend time with the children were suspended but was later restored.
  4. On 6 June 2016 a state protection order was made in respect of the oldest child, x. He was placed to live with the paternal grandparents who live opposite the father’s residence.
  5. On 7 June 2016 the mother brought another substantive application in this Court seeking that orders for all three children to live with her in Queensland. On 5 October 2016 Judge Stewart listed the matter for trial before me in Hobart in the week commencing 14 November 2016 noting a preliminary issue to be determined under the principles in Rice v Asplund.
  6. On 1 December 2016 I made an order dismissing the mother’s application with reasons articulating that she did not cross the threshold required under the principles of Rice v Asplund.

Relevant law

  1. Matters of costs are provided in s.117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides a general rule that the each party being responsible for his or her own legal costs. That general rule is, however, subject to s.117(2) which enlivens a power in a Court to make an award for costs if there are justifying circumstances. It is well established “justifying” circumstances is not synonymous with“extraordinary” circumstances.
  2. If the Court is satisfied that there are circumstances which justify an award for costs then the Court is mandated to reference the considerations set out in s.117(2A).
  3. Counsel for the father argues now that the mother’s application was ill-conceived from the beginning and was doomed to have failed as against the threshold in Rice v Asplund. Counsel argues that the mother was privy to independent evidence that addressed each of the arguments which she put claiming a material change in circumstances of the children. I find merit in this argument. Specifically, my reasons at [26][2]disclose an affidavit of Ms A, Child Protection affirmed 19 May 2016, the contents of which do not disclose any concerns in respect of the father’s parenting capacity and, are, in fact complementary of him. At [31] I conclude:[3]
    “These materials, in my view, effectively deal therefore, with all of the mother’s concerns in respect of alleged neglect of the children, matters of medical neglect, and hygiene issues.”
  4. Similarly, the mother’s contention that the child Y had been the subject of an assault by the father were laid to rest by the affidavit of the child protection worker which incorporated consideration from Tasmania Police.
  5. These materials were available to the mother prior to the commencement of the trial and further she continued to prosecute her case in the face of material which I eventually relied upon to a large degree in dismissing her application.
  6. Prima face, I am satisfied there are circumstances that would justify an award for costs or to move away from the general principle in s.117(1) of the Act. I now turn to a consideration of the factors under s.117(2A).
  7. The father is employed. He has a gross income of approximately $60,000 per annum. This income supports a family of two adults and seven children. He has filed a financial statement. He has no substantial savings or assets.
  8. The mother has an income of approximately $25,000 per annum from casual employment. I accept, therefore, she is not a person of great wealth and does not have a substantial ongoing income. Nevertheless the authorities are clear that impecuniosity is not of itself a bar to an award of costs against a party.
  9. I am told and I accept that neither party was in receipt of a grant of legal aid for these proceedings.
  10. Counsel for the father places some store on the conduct of the proceedings prosecuted by the mother. Specifically, he says that the mother was in possession of objective professional evidence being on affidavit such that should have persuaded a prudent applicant to discontinue the application.
  11. This is not a mother who was naive as to family law proceedings. She had conducted two previous defended trials in respect of the children. She had been involved in interlocutory and recovery order proceedings.
  12. It is clear that the mother was wholly unsuccessful in her application. From a costs perspective, it is perhaps fortunate that the threshold issue was dealt with as a discrete matter thereby limiting the potential Court time. Nevertheless, because of the discrete hearing the only available result for the mother was to be completely successful or completely unsuccessful.
  13. This is not a matter where offers of settlement are relevant.
  14. There are other circumstances that should be considered. Firstly, the matter was obviously one that involved the parenting of children. Arguably, a parent should not be prohibited from arguing the best interests of children by reason of the spectre or costs hanging over him or her. This is pure and simple a matter of public policy. Nevertheless, it does not follow that a Court is not able or should not make awards of costs where circumstances warrant and even in parenting cases.
  15. In Hawkins & Roe[4] the majority observed:
    Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
  16. Further, as a later Full Court decision in Wrensted & Eades [2016] FamCAFC 46 at [103] comment on the above as follows:
    We agree with his Honour’s analysis of the statements by the majority in

      • Hawkins & Roe

    , and are much attracted to what Thackray J said in dissent. The examples given by the majority of circumstances in which a costs order may be made and their statement that in such circumstances “a judge may well conclude that there are circumstances justifying an order for costs” does not fetter the wide discretion reposing in the trial judge as long as they are seen as examples rather than requirements. However if the majority in

      • Hawkins & Rowe

    , by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion…

Consideration

  1. I place some weight on the relative impecuniosity of the mother. Nevertheless, I stress that such impecuniosity does not prohibit an order for costs.[5] In any event, the father is equally not a man of wealth. It is proper to consider, of course, that he has incurred costs as the respondent in an application which the mother prosecuted unsuccessfully.
  2. I take into account the mother did not have the benefit of legal advice, nevertheless, this is not a special status or such a status that she should be given any special consideration. The fact remains that she had the advantage of material of an independent nature which argued strongly against the matters she relied upon in prosecuting her argument. She choose to continue her case in the face of such contrary material.
  3. It is a consideration that the mother was wholly unsuccessful in her application.
  4. Taking into account the Full Court authority set out above, I still consider that a parent should prima face be entitled as a matter of public policy to prosecute an argument as to the best interest of that parents children and not be precluded simply by an imbalance in the parties’ “bank balances”. I accept, however, that this does not mean that some particular or peculiar feature must be evident before there can be an award for costs.
  5. It is noteworthy, in my view, that this was the third substantive parenting application argued by the mother. The results of previous hearings and the mother’s actions post those hearings are relevant. The mother was on notice as to the threshold issue of Rice v Asplund by reason of Judge Stewart listing the matter for a discrete hearing some time prior to the event. This is not an argument where the mother could be even particularly successful. The issue was discrete. She was wholly unsuccessful.
  6. In all of those circumstances I am of the view the father should have his costs. The mother has taken no issue with the quantum of costs sought. In any event I consider them reasonable given that they are calculated on a party/party basis and with reference to the scale in the Federal Circuit Court Rules 2001 (Cth).
  7. I will order that the mother meet the father’s costs of an incidental in these proceedings in the quantum of $10,438.50. I will give her 60 days in which to make payment of the costs.

Grandparents permitted to relocate

Grandparents permitted to relocate

Pearce & Munro & Anor

GRANDPARENTS RELOCATION – REASONS FOR JUDGMENT

Ex tempore

  1. On Wednesday 22 March 2017, this proceeding commenced before me as a three-day trial, in which a large array of issues was to be agitated over the course of the three days allocated for the hearing of the case. Ms Munro, the mother of the child X born (omitted) 2013 (“X”), appeared. She informed me that she had recently become unrepresented and that she wanted to make submissions and to present evidence on all issues, not the least of which was the question of sole parental responsibility, as well as equal shared parental responsibility, time with X and other matters.
  2. In discussions on the first day between counsel, it became apparent that the proceeding was not ready to go ahead on the day. One of the major issues at that time was the availability of an expert witness to give expert evidence in the case. It became apparent that the parties were not quite as opposed as may have first been apparent. So I rolled the matter into the second day to enable all parties to engage in discussion. They continued their discussions in a very cooperative and agreeable manner, for which I thanked them. That position continued into the third day of the trial, where we find ourselves today.
  3. After an enormous amount of negotiations between the parties, very helpfully and cooperatively participated in especially by Ms Munro, the parties got to the point this morning of outlining what were to be four remaining issues in the case. During the course of the morning, after hearing from all parties and especially Ms Munro, it turned out that the four issues that were the logjams in the case boiled down to one issue only. That is the subject of this ruling.
  4. In all other respects, the parties have signed, admittedly on the third day of the trial, minutes of proposed final consent orders as amended by me. They addressed all matters between the parties except a significant issue that could not be the subject of resolution, namely the question of the paternal grandparents’ relocation to (omitted). That was the subject of paragraph 17 of orders made on 11 March 2015.
  5. Accordingly, the orders that I pronounce by consent today make provision for permanent orders by consent until X obtains the age of 18. That disposes of all matters that are the subject of the agreed position. The remaining issue relates to relocation. It is to that that I now turn.
  6. Some background is necessary to explain my reasoning of the outcome that I have reached in this case.
  7. For essentially the whole of her life, X has been in the care of her parental grandparents. They have lived in the metropolitan area for most of X’s life, if not the entirety of it. In recent times, X has been attending a kindergarten in the (omitted) area where X is doing well – a matter the subject of agreement between the parties.
  8. The mother has opposed the relocation of the paternal grandparents to (omitted) on a number of grounds. She says those grounds go to the best interests of X. It must be remembered that the paternal grandparents have had the day-to-day involvement in the upbringing of X, as essentially putative parents from the date of X’s birth, aside from some short periods. It must also be borne in mind that the paternal grandparents have stepped in to the breach to do all tasks associated with the parenting of X.
  9. The mother’s circumstances are such that she has difficulty in dealing with matters that go to day-to-day issues. More recently, sadly, Ms Munro and the paternal grandparents have fallen out in their communications. Up until that fall-out, they appeared to have a very harmonious arrangement that existed for the advancement of the best interests of X, by which Ms Munro had time with X as and when required (it seems). That regime adequately balanced Ms Munro’s psychological or psychiatric circumstances with the need for X to enjoy a stable and balanced upbringing.
  10. We sadly have reached the point where an impasse has been met, at which Ms Munro opposes the paternal grandparents’ relocation to (omitted). The urgency surrounding the paternal grandparents’ relocation is this. They live in rented premises in (omitted) the landlord of which has served notices requiring them to vacate by next Thursday 30 March 2017, in default of which an application will be brought in the Victorian Civil and Administrative Tribunal for their eviction. Their need for certainty is acute.
  11. Ms Munro has lived in a variety of places, presently enjoying no fixed address. I am told that she presently is unemployed and she lives with her former stepfather in accommodation in (omitted). She is concerned that if the paternal grandparents are permitted to relocate to (omitted), not only is there a significant distance between Ms Munro and (omitted) where X will live in the future, but also that X’s network in and around the (omitted) area will be affected adversely to X’s interests.
  12. Ms Munro has brought to my attention five reasons for not wanting the paternal grandparents to relocate. Before coming to those, may I say something about the entitlement that is usually given upon orders for sole parental responsibility being pronounced. Not only does a person who enjoys rights associated with sole parental responsibility have the ability to make critical decisions in the best interests of the child, but he or she has that entitlement without reference or consultation to, still less agreement from, anyone else. Ms Munro has agreed to the paternal grandmothers of X having sole parental responsibility. That carries with it the ability to move, and to do so without agreement or, indeed, input from anyone else.
  13. Putting that to one side, it seems to me that the age of X is such, and her establishment of networks in the metropolitan environs of Melbourne are not such, that she could not be satisfactorily taken to (omitted) with a view to establishing her new set of networks there. X is very young. She attends three-year-old kindergarten. It is not easy for me to understand how her circle of friends through kindergarten is so entrenched that she could not establish a new network upon starting at a new kindergarten. It is not easy for me to see how she could not establish a new circle of friends in the new environment of (omitted).
  14. Let me turn to the five reasons advanced by Ms Munro for opposing the paternal grandparents’ relocation.
  15. First, Ms Munro said that any relocation might affect X’s circle of friends. I do not agree. As already mentioned, a three-year-old generally establishes friends very quickly and new friends will be made when X starts up at her kindergarten in or around (omitted).
  16. Second, it was said that any relocation might hamper or impede the time that X might spend with other grandparents. I am not entirely sure how that argument is advanced, especially given that both grandparents have agreed to assist in the transportation of Ms Munro to see X in (omitted). By definition, they will have future involvement with X. And to the extent that that involves any physical activities associated with transportation, they will see not only Ms Munro, but if they wish, they will see X at her new location.
  17. Third, it is said that a relocation might restrict Ms Munro’s stepfather’s parents’ time with X. That might be the case but nothing in the material has been brought to my attention to indicate that anything but a favourable response would be given by the paternal grandparents should an overture be made by Ms Munro’s step-parents or others to see X. Put another way, I do not agree that there is necessarily on the evidence before me any impediment to Ms Munro’s step-parents seeing X if they choose to do so. In fact, if anything, the cooperative approach exhibited by the paternal grandparents and, indeed, by both grandparents, indicates that it is likely in the best interests of X that Ms Munro’s step-parents will be given whatever time they wish to see X.
  18. Fourth, it is said that Ms Munro has not heard of (omitted). (omitted) has been around for as long as the colony of Victoria has been established. And it certainly exists.
  19. Fifth, Ms Munro tells me that in her view, (omitted) is too far away. Of course, that is a subjective position adopted by Ms Munro. And no doubt she makes that submission by reference to the place where she presently lives. No doubt Ms Munro says that where she presently lives is a long travel to (omitted). That may well be her take on the travelling arrangements, but the grandparents have exhibited on all sides a remarkable willingness to accommodate Ms Munro and to enable X to have as much time with meaningful people in X’s lives than can be reasonably expected. The paternal grandparents are to be commended for that. They have offered to transport Ms Munro from (omitted) to (omitted) so long as Ms Munro expends the modest sum required by V/Line to obtain a fare from (omitted) train station to (omitted). In my opinion, that is an eminently reasonable position to adopt and the tyranny of distance is not such as to preclude operation of the transportation arrangements that the grandparents jointly offer.
  20. In my opinion, none of the reasons advanced by Ms Munro should legitimately impose an impediment to the paternal grandparents departing from their rented accommodation in (omitted) and re-establishing themselves with X in (omitted) under the arrangements that they have currently informed me. On top of that, counsel for the Independent Children’s Lawyer who is charged under the legislation with advocating the best interests of X has agreed with the position advanced by the paternal grandparents as propounded by Ms Mansfield and in respect of which Mr Hale had no opposition.
  21. For a short spurt during the course of the trial, a latter issue of a passport emerged. Essentially, the paternal grandparents have indicated that at some stage they may entertain the idea of overseas travel and to the extent that X may need a passport to do so they wanted permission to obtain one. They have not expressed any present intention of travelling or at least I did not take Ms Mansfield to be suggesting as much. To my mind, the safeguards associated in accommodating the wishes of Ms Munro are adequately protected by the provision, as offered by Ms Glover, of a duplicate copy of the passport to Ms Munro which should more than amply allay any fears exhibited by Ms Munro in respect of the passport.
  22. In short, the three days allocated for the trial of this proceeding have reached a happy, agreed position, except for the relocation. That was not agreed. But for the reasons that I have expressed in the foregoing, in my judgment the paternal grandparents should be entitled to relocate.
  23. The restrictions imposed by paragraph 17 of the orders made on
    11 March 2015 by another Judge of this Court are relieved. I will ask counsel to formulate an order that gives effect to incorporating not only the totality of the minutes as have been amended and agreed as signed, but also a minute that gives effect to the entitlement of the paternal grandparents to relocate.

Reasonable excuse in contravention proceedings

Reasonable excuse in contravention proceedings

Argyle & Thomas

REASONS FOR JUDGMENT

Introduction

  1. On 3 November 2016, upon hearing of the Application-Contravention filed by the father on 14 October 2016, the Court found that:
    Allegation 1:

The Respondent without reasonable excuse failed to bring the children to school on 8 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Admit but with reasonable excuse

Allegation 2:
The Respondent without reasonable excuse failed to bring the children to school on 16 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(a) – Admit but with reasonable excuse
Allegation 3:
As of 4 September 2016, the children have not called the Respondent as per order 6(a) of the Orders made 7 October 2014. Prior to the contravention, the Respondent and the children would ordinarily communicate by telephone after 4pm. The Respondent has not been able to make telephone contact with the children since 4 September 2016 – Denied
Allegation 4:

The Respondent has failed to communicate to, and keep the Applicant informed of the children’s health, welfare, and schooling; in particular, the Applicant has not received any communication from the Respondent in respect of the children’s schooling results, school reports or other school activities, nor any information on any medical appointments – Denied

Allegation 5:
The Applicant has failed to refrain from making critical or derogatory remarks in relation to the Respondent in the presence of the hearing of the children – Denied
Allegation 6:
The Respondent without reasonable excuse failed to bring the children to school on 22 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Admit but with reasonable excuse

Allegation 7:

The Respondent without reasonable excuse failed to bring the children to school on 30 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Struck Out

  1. Counts 3, 4 and 5 were subsequently dismissed on the basis that the father had not established a prima facie case, and Counts 1, 2 and 6 were set down for hearing of the reasonable excuse argument. That hearing ultimately occurred on 16 February 2017, and these are the Reasons for Judgement in respect of whether the mother established a reasonable excuse in respect of the admitted contraventions.
  2. The overall hearing of the Application-Contravention was conducted on the basis of the Court firstly determining the issue of whether or not there was a contravention as alleged[1] and secondly determining the issue of reasonable excuse[2]. What orders, if any, are to be made upon the determination of these issues is a matter which will be determined after hearing from the parties on sentence.[3]

Relevant Facts

  1. The father was born on (omitted) 1974.
  2. The mother was born on (omitted) 1975.
  3. The parties were married on (omitted) 2007 and they separated in or about June 2012. The parties are yet to be divorced.
  4. There are three children of the parties:
    1. X born (omitted) 2008;
    2. Y bon (omitted) 2009; and
    1. Z born on (omitted) 2011.
  5. On 7 October 2014 final parenting orders were made by consent in the Federal Circuit Court of Australia (“Final Orders”). Relevantly, those Orders provided that the children are to live with the father, inter alia, during school term:
    1. each alternate Friday from after school and concluding at 5pm Sunday; and
    2. each alternate Thursday from after school to 9am Saturday.
  6. From October 2014 until about mid-September 2016, the children, by and large, lived with each of the parents in accordance with the Final Orders.
  7. On Thursday, 8 September 2016 at 3pm, the father attended (omitted) Public School to collect the children at the commencement of their time with the father in accordance with the Final Orders.
  8. The father went to the school office where he spoke to the Principal and learnt that the children had not been at school that day. He left the school at approximately 3:30pm without the children. There had been no communication from the mother advising the father that the children would not be living with him in accordance with the Final Orders on that occasion.[4]
  9. The following morning the father sent the mother a text message asking when the children would be brought to school so that he could pick them up at the conclusion of school later that afternoon. He did not receive any response from the mother and at approximately 9.30am that morning he spoke to the school and was advised that the children were not at school again that day.
  10. On Friday, 16 September 2016 at 3pm, the father attended the children’s school to collect the children in accordance with the final orders. By 3:10pm the children had still not arrived and the father could not locate them. The father then telephoned the mother that she did not answer her mobile phone. The father attended the school office and was again advised that the children did not attend school on that Friday. The father left school at 3:15pm without the children and without any notification or contact from the mother that the children would not be living with the father in accordance with the Final Orders on that occasion[5].
  11. On Thursday, 22 September 2016 at approximately 10am the father telephoned the children’s school and was advised that the children were not in attendance. That afternoon at 3pm the father attended the school to collect the children in accordance with the Final Orders. By 3:10pm the children had still not arrived and he could not locate them. At about that time he telephoned the mother’s mobile number that she did not answer. The father left the school at approximately 3:15pm without the children or any notification from the mother about the children’s whereabouts, or that they would not be living with the father in accordance with the Final Orders on that occasion[6].
  12. On Tuesday, 27 September 2016 the father sent a text message to the mother enquiring about the children’s time with the father during the upcoming school holidays. The mother did not reply. On the father’s evidence the children were not made available to him at the commencement of the school holidays although that issue is not the subject of the Contravention Application. It is a relevant issue in terms of the chronology, as is the concession by the mother that the children had not spent time with the father from after 4 September 2016 until late October/early November.
  13. On 20 September 2016 the father voluntarily (and against legal advice) participated in an electronically recorded interview with the Police regarding the allegation of assaults on the children alleged by the mother against the father. The father denied that he physically assaulted the children and gave an account of the children’s busy weekend with him including attending a children’s (hobbies omitted). The father also denied giving the children medication to sleep or that he banged the children’s heads together. The Police records show that the Police were of the view that there was insufficient evidence to proceed by way of charge and insufficient evidence to make an application for an Apprehended Violence Order.
  14. On 11 October 2016 the father received a telephone call from (omitted) Police in relation to a complaint they received from the mother, that the father had installed a GPS tracking device in a motor vehicle which the father purchased but then transferred to the wife in August 2016. The father agreed to participate in an interview with the Police. At the conclusion of that interview the father was told by the Police that no charges would be pressed and that he was free to go.
  15. In about mid-October 2016 the father received a telephone call from a Family and Community Services (FaCS) case worker, asking the father to participate in an interview in relation to a report about alleged abuse of the children by the father. The father attended such interview on 19 October 2016. The father was told that FaCS had received a complaint about abuse by the father towards the children specifically an incident on the weekend of 4 September 2016.
  16. The father during the interview, denied any allegations of physical abuse, and informed the case officer of the various physical activities in which the children were engaged during the time they were spending with the father between 2 and 4 September 2016. The father has not had any further contact from FaCS since the interview on 19 October 2016.
  17. Tendered in the proceedings were a number of documents produced under Subpoena from the children’s school, from FaCS, from the Police and from the Children’s Hospital. Some of these documents have been specifically referred to in these Reasons, and while all have been considered by the Court not all were relevant to the discrete issue before the Court being the mother’s “reasonable excuse” argument.
  18. While all reasonable efforts have been made in these Reasons to refer to relevant evidence, not all of the evidence in the proceedings has been traversed with a fine tooth comb in these Reasons. The Court is comforted in its approach by what the Full Court has recently said in Searle & Mellor[7]:

It is clear that it is not incumbent on a trial judge to make an explicit finding on each disputed piece of evidence (it being sufficient if the inference as to what is found is appropriately clear). Further, the reasons provided need not be lengthy or elaborate and are not required to mention every piece of evidence, fact or argument relied on by parties as relevant to an issue (because, if a failure to mention every fact and argument was evidence that the same had not been properly considered, reasons would become longer and longer); in fact, when dealing with large bodies of evidence, economy and/or truncation of expression and approach may be required to coherently explain the resolution of an overall controversy.

(citations omitted)

The Law dealing with Contraventions

  1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act 1975 (Cth).
  2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
    1. Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
    2. Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
    1. Contravention alleged but not established – provision for costs orders against the person bringing the proceedings: subdivision C;
    1. Contravention established, but a reasonable excuse – the Court can make orders for compensation for time lost, and costs orders: subdivision D;
    2. Less serious contraventions, and no reasonable excuse – the Court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
    3. More serious contraventions, and no reasonable excuse – the Court has more punitive powers, including fines and imprisonment: subdivision F
  3. The meaning of “contravened an order” is set out in s70NAC of the Family Law Act 1975 (Cth):

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a) where the person is bound by the order–he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order;

(emphasis in original)

  1. The mother admitted the contraventions[8]. Therefore, the onus of proof shifted to the mother to establish that she had a reasonable excuse for the contraventions.[9]
  2. The mother submitted that she had a reasonable excuse pursuant to sub-ss 70NAE(5)(a) and (b).

Reasonable Excuse

  1. The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
    (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

  1. In Taikato v R[10] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:

… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…

… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.

  1. A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[11]
  2. Section 70NAE was considered by Warnick J in Childers & Leslie[12] where his Honour said:
    1. s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found …
  1. … the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5)…
  1. While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection…

  1. … The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:

… However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

  1. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.

The Mother’s Case

  1. The mother’s evidence is that on 4 September 2016 she picked the children up after they had spent time with the father in accordance with the Final Orders and that on the way home the children said to her that the father had smacked them. The children apparently said similar words to the mother when they got home and when the mother asked what happened and what is it that the father did, Y showed the mother a bruise on her knee and Z showed the mother a bruise on his thigh. The children then apparently started to cry and Y said to the mother that the father hit the children with his belt and slippers, that he carried Z under his arm and threw him on the bed and that Z hit the back of his head on Y’s head. X said that she was told by the father not to make any noise because he was tutoring in the other room and that he gets angry if the children make noise. Y then said to the mother that she had a headache. It appears from the mother’s evidence that the children were all together when these conversations were occurring.
  2. The mother says that she was in shock and concerned about the children’s safety. She called the Department of Family and Community Services that evening when the children went to bed and reported her concerns. The following day she called (omitted) Police and made a complaint that the father had been hitting the children and that she was therefore concerned for their safety. The Police attended the mother’s home later that day. The mother’s evidence is that she said to the Police:

The children came home from their father’s house on Sunday and were upset. They said that their dad hit them and threw them on the bed. They are complaining of headaches now. I don’t know what to do. I am scared he will hurt them again.

  1. What the mother says she said to the Police is not what she says the children said to her. It is at the very least, an exaggeration. There was no complaint that all of the children had been thrown on the bed or that they were all complaining of headaches. Furthermore, at the time that the Police were at the mother’s house, she received a call from the school to say that Y was sick and that she was complaining of a headache.
  2. The mother then took the children to their General Practitioner (‘GP’) at (omitted) Medical Centre. It appears that all of the children were together with the mother and the GP, and that they said to the GP words to the effect of “daddy smacks us and gives this medicine before we go to bed”. The GP then apparently said to the mother that he had to call the Department of Family and Community Services as the children had already complained to him that the father had given them ‘poison medicine’ before. Such evidence is extraordinary.
  3. The mother, importantly, does not say that the child Y had come home from school sick with a headache, nor does she say that Y was in any way examined by the GP in respect of the complaint that she had a headache both on the day that she came home from the father and also that day at school.
  4. The mother, unfortunately, was not cross-examined about this particular evidence. The Court does not say that as a criticism of Counsel for the father who cross-examined the mother at length in relation to some very important matters. It is noted simply because there was no exploration of the issue that more than likely the child had been sick and that was why she had the headache – rather than any inference such as the one that the mother appears to have drawn, that the reason that she had a headache is because of some abuse that she had suffered at the hands of the father.
  5. The mother then took the children to (omitted) Hospital at (omitted) for an assessment at the suggestion of the Police Officers who had attended the home. The mother was not provided with any report from the hospital. However a number of documents produced under Subpoena from the hospital were tendered in the proceedings.
  6. The discharge of referral from the hospital says that the child Y presented to the hospital with an injury, being a soft tissue injury. The discharge referral then notes as follows:

[Y] Was in care of father over the weekend. Mother noticed in bath last night new bruises and Y was c/o headache. Mother has footage on her phone of the children and telling her that the father hit them several times with belt buckle and threw them on to the mattress, hitting side of bed/colliding heads.

Third child oldest girl was not hit by father. Children state that he “loves”her – mother tells me that he licks her ear and snuggles with her in bed.

Ongoing for many years

Previous AVOs against father, now elapsed

GP has apparently reported to FACS as has mother on multiple other occasions

Mother found a GPS tracker in her car, notes cars following her

Never been to hospital before for injuries

Y has had headache since Saturday. No visual changes, vomiting, dizziness.

Running around examination room – mother states they are always “hyperactive” the two days after returning from father’s care

Bruising noted over pre-tibial area, one bruise right buttock, patch of discolouration/dry skin low thoracic spine

Says “ouch” on palpation over entire spine and long bones, smiling throughout

  1. Once again the matters noted in the discharge referral do not strictly accord with the other evidence in the proceedings. For example, the mother’s evidence is that Y complained about having a headache “now”being after she returned from spending time with the father on the Sunday, rather than having a headache all weekend. If what is recorded in the discharge referral is correct, namely that Y has had a headache since Saturday, then what the mother says in her Affidavit is deliberately misleading. The Court is of the view that it is more probable than not, given that the child came home sick from school on Monday with a headache, that she had had a headache since Saturday and that the headache was related to an illness, rather than any alleged abuse at the hands of the father.
  2. The children returned to school the following day.
  3. On 7 September 2016, the mother spoke with the Principal of the children’s school. Her evidence is that she said to the Principal “Mr Argyle has been hitting the children. I don’t want him to have the children anymore.[13] I have already called FACS and told them.” The Principal then apparently advised the mother that due to the Final Orders if the father came to pick up the children that the school could not do anything to stop him. The Principal also apparently said that he had sent something to FaCS but that he could not tell the mother what it was regarding.
  4. On 8 September 2016, the mother took the children to (omitted) Police to report “what had happened”. Y and Z were both interviewed by the Police. The mother was advised that the matter was referred to (omitted) Police and that they would investigate further.
  5. The mother says that she was advised approximately three weeks later by (omitted) Police that the decision had been taken to close the investigation. The mother asserts that the Police officer who spoke to her said words to the effect “there was nothing wrong with Mr Argyle hitting the children.” The mother then gives the following evidence[14]:

…I was concerned for the children’s safety if I let them go to Mr Argyle’s house and did not think the police were taking the investigation seriously.

I was concerned that if Mr Argyle pick the children up from school and had them for the weekend that he would hit them again. I thought that the children were not safe staying with their father overnight. I decided to keep the children at home on 8 September 2016, 16 September 2016 and 22 September 2016 as I thought that this was in the children’s best interest.

(Emphasis added)

  1. It is clear from the above evidence that the mother formed the intention as early as 7 September 2016 not to allow the children to spend any more time with the father, at all, in accordance with the Final Orders. It is also clear from the above evidence that the mother was of the view that she knew better than the Police and FaCS. She also clearly states her reasons for not permitting the time to occur, that being that she thought it was in the children’s best interest because she thought the father would hit the children ‘again’.
  2. Nowhere does the mother give evidence for example, that as soon as she heard back from the Police and/or FaCS that they would not be taking the matter further that she was satisfied that appropriate action had been taken. In fact what she does is make further complaints, complaints which were either historical and had already been investigated, or were said to have been occurring since the Final Orders commenced and were to the Court’s mind of such significant concern that any parent who genuinely believed these matters would have taken appropriate action immediately. The mother did not do so as is clear from the matters referred to below.
  3. The mother’s Affidavit then goes on to explain that since the Final Orders she had been concerned that the father has been inappropriate with X. The mother goes on to say:
    1. That in or around January 2015, X told her that the father “did a wee in me.” The mother apparently went to the Family Court at Parramatta “to try and put a stop to the final orders” where she spoke to a Duty Solicitor and was told that she had to make a report to the Police as it was “too late.” The mother went to (omitted) Police were X was questioned by the Police, the mother also made a complaint to FaCS and a social worker from FaCS also interviewed X.
    2. That since the Final Orders “X would return from her father’s house with redness in her vagina. X would find it very difficult and painful to walk. I tried to ask X how this happened but she would not reply. Since she stopped going to her father’s house on 4 September 2016, the redness stopped.”
    1. That since the Final Orders she has not only witnessed the father licking X’s ear, but that she asked the father to stop and not do it again to which the father replied that he is not doing anything wrong.
  4. It appears that no action was taken by the Police or FaCS in relation to the complaint made by the mother that the father had ‘weed’ in X, at the time the complaints were made or since.
  5. The mother was cross-examined at length by Counsel for the father about the various complaints she made the Police in September 2016.
  6. It is clear from the oral evidence of the mother and the documents produced under Subpoena from New South Wales Police which were ultimately tendered, that the mother did not mention any redness of the vagina relating to Y until 13 September 2016, and that after she was told by the Police that they would not be applying for an Apprehended Violence Order against the father that she repeated to the Police the older complaints about the father doing a “wee” in X and about the father licking X’s ear (in the mother’s presence). The mother also made a number of other complaints on that occasion including that the father showers with the children, that he sleeps with the children by pushing three single beds together and that X sits on the father’s lap and his genitals.
  7. There is no evidence that prior to 13 September 2016, the mother ever made a complaint to the Police, FaCS or the children’s GP about X having redness in her vagina after spending time with her father which had according to the mother, only stopped after Y stopped seeing her father on 4 September 2016. Importantly, the mother did not mention this to the doctors who she spoke to at the Children’s Hospital on 5 September 2016. Certainly the mother does not say that this was a reason why the children did not spend time with the father on the dates the subject of the contravention. In any event, the Police have not taken any action against the father as a result of the complaints made by the mother on 13 September 2016 relating to conduct of an alleged sexual nature by the father towards the children and particularly X.
  8. The mother further says that since the Final Orders the children had expressed to her that they did not want to go to the father’s house and that they had told her that he scared them and asked the mother not to make them go to spend time with the father. When the children were said to have said that these things is not the subject of any evidence.
  9. The mother also makes further complaints X has started to wet herself, that Y started to wet the bed at night and that all three children see a Counsellor. The mother also says that in September 2016 during the time that the children did not see their father they stopped wetting the bed. The mother states that since the children started seeing the father again they have started to wet the bed again.
  10. These matters namely the children’s apparent reluctance to spend time with the father or their incontinence issues[15], were not raised by the mother during submissions as a basis of her reasonable excuse argument.
  11. Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing.[16] It has been said that:
    “… ‘such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise “changed circumstances”. Otherwise, it would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made.”[17]
  12. In the circumstances, none of the evidence establishes that the distress[18] of the children was such that it would result in a risk of harm to the children.
  13. It was submitted on behalf of the mother that the mother had a genuine belief, based on what was disclosed to her by the children, that the children were being hit by the father.
  14. It was further submitted that the Final Orders contained a number of restraints, namely that the father is restrained from conducting his in-house tutoring business at any time he has the children in his care and that neither party is to physically discipline the children. The Court was taken to evidence in the mother’s Affidavit being a text message from the father dated 12 July 2016 showing a number of photographs of the children and other children at the father’s residence “being tutored”.
  15. The Court was asked to accept that there must have been a relevant history, otherwise the orders restraining physical discipline of the children by the parties and restraining the father from conducting in-house tutoring at his home would not have been made.
  16. It was submitted that because of this history and the restraints that it was reasonable for the mother to take steps to protect the safety of the children to ensure that they were not being hit by the father. It was further submitted that it was reasonable for the mother to retain the children while they were ongoing investigations and that such actions were for no longer than was necessary.

Analysis and Conclusion

      1. The wording of s70NAE(5) was referred to earlier in these Reasons.
      2. Section 70NAE(5) was considered by Dawe J in Vaughton & Randle (No.2) [19] where it was held that:
        (82) There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts…

 

(83) First, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).

 

(84) Second, there is the consideration of whether the period during which the child and the person did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b).

    (original emphasis)

  1. With these remarks, the Court respectfully agrees. They are a statement of the law which applies to this case.
  2. The Court does not accept that there were reasonable grounds for the mother to believe that the children had been physically abused by the father, despite what she says the children had said to her.
  3. The father’s evidence is that the children had a busy weekend between 2 and 4 September 2016, including a great deal of physical activity. The mother’s evidence does not disclose any discussions with the children about what they did with the father on the weekend. She did not raise any concerns with the father about the bruising which she observed. She concluded that the few bruises which the children had arose as a result of the children being hit by the father, based on what they told her. This must be looked at in terms of what occurred after the disclosures by the children.
  4. The mother complained to the Police. The Police did not take any action against the father[20] as a result of the complaints they did not even apply for an Apprehended Violence Order.
  5. The mother took the children to be examined by the Children’s Hospital. There was nothing sinister reported by the doctors who examined the children, indeed the children were observed to be playing happily and Y was observed to be smiling while complaining of pain.
  6. The children did not see their father in accordance with the Final Orders on 8, 9 and 10 September 2016, 16, 17 and 18 September 2016 and 22, 23 and 24 September 2016. The mother was told by the Police on 13 September 2016 that the Police would not be applying for an Apprehended Violence Order.
  7. The Court finds that the mother has not established the defence of ‘reasonable excuse’ within the meaning of s70NAE(5) in respect of any of the counts.
  8. The father brought his Application-Contravention promptly. It was filed on 14 October 2016. The Court notes that the mother has since then filed an Initiating Application seeking to vary the Final Orders. This is the subject of ongoing proceedings before the Court.
  9. The Court reiterates the long standing authority that parents have positive obligations to comply with orders for children to spend time with the other parent. They must genuinely comply with the order by encouraging children to spend time and to take reasonable steps to deliver the children for time to be spent with a parent. Token compliance or passive resistance is not sufficient.[21]

Conclusion

  1. Lest it be suggested that it was not considered, the Court finds that the cumulative effect of the facts as found is not such that there were reasonable grounds for the mother to hold a belief that withholding the children from the father, was necessary to protect the health or safety of the children.
  2. The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive. The Court respectfully agrees with the obiter comments by Warnick J[22], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances[23].
  3. The excuse which the mother relied upon with respect to each of the admitted contraventions was said to be within s70NAE(5) same not being established. The Court also finds that the mother did not have a reasonable excuse for her contraventions that is not within the list of s.70NAE(1).
  4. In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
  5. The Court invites the parties to make further submissions on a date to be advised as to the orders the Court should make in light of the findings the Court has made.

Evidence for parenting orders in interim hearings

Evidence for parenting orders in interim hearings

Gilmore & Cowell

Parenting Orders – Introduction

  1. On 31 January 2017 the father commenced these proceedings by filing an Initiating Application, seeking interim and final parenting orders in respect of the two children of the parties:
    1. X born on (omitted) 2008; and
    2. Y born on (omitted) 2010.
  2. Also included in that Initiating Application was an application for the matter to be dealt with ex-parte and for an urgent recovery order to be made.
  3. The matter was listed at short notice on 13 February 2017. Both parties appeared on that day represented by lawyers. Interim orders were made by consent to the effect that the children live with the father and have telephone communication with the mother. The mother was also restrained from collecting the children from their school, except in the case of emergency and at the request of the father.
  4. The mother filed a Response, Affidavit and Notice of Risk on 22 February 2017, contrary to the procedural orders made on 13 February 2017, which directed the mother to file such documents by 4pm on 17 February 2017.

Competing Proposals

  1. At interim hearing, the father sought an order for the children to live with him and spend supervised time with the mother for no more than four hours per week at an appropriate contact centre.
  2. Initially, the mother sought an order for sole parental responsibility, for the children to live with her and for the children to spend time with the father supervised for two hours per week at an appropriate Contact Centre. After some evidence came to light, the mother’s application changed for the children to spend time with the father unsupervised.

The Law

  1. The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings. The primary issue is whether the children are at an unacceptable risk of harm in the mother’s care and if so what, if any time, they should be spending with the mother. If the answer is that they are not, the issue then becomes a competing interim live with application, based on the determination of the relevant best interest considerations.[1]
  2. The Full Court in Goode v Goode[2] mandated that the legislative pathway must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, such as this one. The Full Court in Goode & Goode also said:

… the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

  1. Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[3] the Full Court made the following obiter comments:

As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….

  1. In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[4]

…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

  1. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.

Uncontested Relevant Facts

  1. The father was born on (omitted) 1985.
  2. The mother was born on (omitted) 1989.
  3. The parties commenced their relationship in (omitted) 2008.
  4. The parties’ children were born on (omitted) 2008 and (omitted) 2010 respectively.
  5. In early December 2016, the mother left the relationship taking the children with her.
  6. The children did not spend any time with the father until 26 January 2017, when they spent three nights with him. They next came into their father’s care on a 3 February 2017 and have remained in the father’s care since then.
  7. The father and the children live in the former matrimonial home, which is a rental accommodation across the road from the paternal grandparent’s shop.
  8. On 7 February 2017 the father was contacted by JIRT. The contact was in response to an allegation of sexual misconduct by the father with X. The children were interviewed, as was the father. A report was released by JIRT, and they determined that the children were safe in the father’s care. The JIRT file was closed.
  9. On 13 February 2017, interim consent orders were made as noted in paragraph 3 above. The matter was set down for interim hearing pending the mother filing her documents.
  10. The father works full-time.
  11. The mother works part-time. The mother is in a new relationship with a person referred to by the mother as Mr L.

Relevant Considerations

  1. The protection of children from harm is an important matter for the Court’s consideration when weighing up the primary considerations.[5] Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents. The Court must also take into account the additional considerations if relevant.
  2. The issue in respect of protection of children from harm is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the children having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[6] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[7]
  3. The history of the relationship and care of the children given by each of the parents differs considerably. It does seem though that the parties’ relationship was not particularly stable, and that the parties resided at various locations during their relationship.
  4. The evidence of the father is that the paternal grandparents provided to the parties financial assistance over the years and that they were also involved in the children’s care.
  5. Each of the parties makes a number of allegations against the other.
  6. The father raises concerns about the mother’s parenting capacity and deposes to a belief that the mother lacks parental insight to be able to care for the children. He raises concerns that the mother does not adequately meet the children’s basic needs. The father asserts that he was the primary care giver together with his parents as the mother showed little interest in the children.
  7. The father asserts that the mother’s brother and the maternal grandmother are heavily into the “drug culture” and deposes to witnessing the maternal grandmother and uncle engaging in the use of illicit substances. The father says that the mother admitted to him that her new partner is addicted to drugs.
  8. The father’s evidence is that on 8 December 2016, he was at home when he saw the mother’s friend sitting in her car in the parties’ driveway. He saw the mother get out of her car with the children and put the children in her friend’s car. He observed that the children to be crying and they seemed extremely distressed. He heard the mother screaming at the children whilst forcibly pushing them into the car. He then saw the mother drive off with her friend and the children.
  9. The father says that he then immediately telephoned the mother and spoke to her and that she indicated he could see the children on the following day. The father did not see the children until 26 January 2017.
  10. On the 7 February 2017, the children were interviewed by members of the JIRT team. Documents produced under Subpoena from Family and Community Services were tendered in the proceedings. Exhibit 1 discloses the following:
    1. The children were able to identify their mother and where she lived;
    2. Y said that the mother had taken them from their father;
    1. X disclosed that the mother’s partner (Mr L) punched X in the face and that this had made him feel sad;
    1. Y also disclosed that X had been asleep on a chair and that Mr L pushed the chair over;
    2. The children both said that they wanted to live with their father;
    3. Neither child made any disclosure of sexual assault;
    4. The children were considered vulnerable, too young to care for themselves and requiring close supervision by a responsible person to ensure their safety; and
    5. At the time of assessment, X and Y are residing with their father and paternal grandparents. There is no evidence that X (or Y) is a risk of harm in the care of their father or pgp’s. The report received on 3/2/17is considered to be malicious in nature and may be the result of the father commencing FLC proceedings for custody. The pgp’s have previously demonstrated their support of the children and present as very caring and loving to X and Y. Additionally the children have clearly stated that they wish to reside with their father and paternal grandparents, saying they do not feel safe with their mother or Mr L”.
  11. It was submitted on behalf of the father that if the children were to either live with the mother or spend time with the mother on an unsupervised basis they would be placed at an unacceptable risk of harm of:
    1. physical abuse;
    2. neglect;
    1. exposure to drug paraphernalia; and
    1. exposure to use of drugs by the mother with consequential risks of the children ingesting the drugs themselves and the physical inability of the mother to provide for the needs of the children by virtue of being drug affected.
  12. The mother alleges that the father was a regular smoker of marijuana until about July 2016. She recollects an occasion when she found Y with a ‘bong’ in his mouth trying to drink the water. The mother also alleges that the father has used cocaine and ‘ice’ in late 2016.
  13. The mother alleges that the father was verbally and physically abusive towards her during their relationship. The mother provides a number of examples of such behaviour which she alleges the father engaged in.
  14. The mother also says that she has concerns about the paternal grandmother, who she alleges has a history of alcohol abuse and driving under the influence. No independent or corroborative material was tendered in relation to this allegation[8].
  15. The mother also deposes to an understanding that the father’s stepfather has been charged with sexual assault in relation to his stepdaughter on two occasions. The mother says that she does not want the children around the father’s stepfather. No independent or corroborative material was tendered in relation to this allegation[9]. Apart from two lines in the Affidavit deposing to the mother’s understanding, there is no other evidence as to how the mother came to have that understanding. For example the Court does not have before it any evidence as to when the charges laid, the nature of the sexual assault alleged, whether the matter was ultimately determined by a Court and any outcome of such hearing.
  16. The Court is significantly concerned by the disclosures made by the children during the interview with JIRT. Those disclosures echo the father’s concerns about the mother’s ability to care for the children and the children being at risk of harm in the mother’s household. The children also appear to have expressed a strong wish to remain living with the father and not be returned to their mother’s care. The various opinions contained in Exhibit 1 are also supportive of the Court acting cautiously in relation to the subject children.
  17. The older child is referred to as exhibiting behaviours consistent with the autism spectrum. The opinions expressed in Exhibit 1 are supportive of a need for stability in that child’s life, particularly because of his vulnerabilities.
  18. The children ought to be given the opportunity of maintaining a relationship with their mother, so long as they are not placed at an unacceptable risk of harm. While their views appear to be that they do not want to go back to the mother and want to live with the father, the Court does not consider such views determinative of the issue, and certainly not to the extent that the children would not be spending any time with the mother.
  19. Both parents appear to have suitable accommodation to the children and the objective evidence appears to be that the father is able to meet the children’s physical and emotional needs. There is some uncertainty about the mother’s ability to meet such needs, which will no doubt be the subject of further evidence as these proceedings continue.
  20. Both parents appear to be in good health.
  21. The Court finds that unless there are safeguards put in place, the children are at an unacceptable risk of harm if living with the mother or spending significant and substantial time with her, at least on the basis of what the Full Court said in Keats & Keats. The Court does not find that the risks to the children are such that an order for supervised time between the children and the mother is warranted, given the safeguards which will be put in place by the making of these orders, which will ensure that the children are not placed at an unacceptable risk of harm. The Court is also comforted that the mother has demonstrated an ability to comply with Court orders to date.
  22. The Court also finds that the children are settled and appear to be well looked after in their present environment. Furthermore, and given the recent turmoil to these young children’s lives, the Court finds that it is in the children’s best interest to remain living with the father on an interim basis.

Parental Responsibility

  1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order and s65DAAapplies in circumstances where a parenting order provides for the parents to have equal shared parental responsibility.
  2. At this very early stage in the proceedings, the court does not consider that any order for parental responsibility ought to be made, and as such it is the position under the Family Law Act that will prevail.

Conclusion

  1. The absence of discussion of any particular s.60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed[11].
  2. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.

Husband fails in property settlement bid for his parents

Husband fails in property settlement bid for his parents

Kappas & Kappas

REASONS FOR JUDGMENT

  1. On 30 January 2017, the property dispute between the parties proceeded initially on an undefended basis. The matter was listed for hearing at 10.00am and the husband did not attend Court until 2:15pm. The husband was fortunate that the wife’s counsel returned to Court at 2.15pm to hand up an amended minute of order. When asked, the husband said his father was ill. I am not satisfied about the husband’s explanation. He made no attempt to contact the Court or the wife’s lawyer until the afternoon. His behaviour needs to be seen in the context of his serial non-compliance with Court orders and his failure to attend Court events.

History of Proceeding

  1. Before turning to the property issues in dispute between the parties it is necessary to refer to the history of the proceedings before me.
  2. The wife filed her initiating application seeking property adjustment orders on 7 August 2015. The wife filed an affidavit of service on 27 August 2015. The husband signed the acknowledgement of service annexed to the affidavits acknowledging that he was served with the documents on 17 August 2015. The husband appeared in person on the first return date on 5 October 2015. Despite this the husband had not filed any material by that date. The Court directed the husband file a response affidavit and financial statement by 4.00pm on 2 November 2015. I also made directions for joint valuation of the two pieces of real estate as well as procedural orders listing the matter for a conciliation conference and a final hearing.
  3. The husband failed to comply with the Court’s directions to file material and also failed to attend the conciliation conference on 15 February 2016 due to the husband’s non-compliance and failure to appear at the conciliation conference. The wife’s solicitor appeared before me that day in open Court and I made further directions extending the time for the husband filed material to 1 April 2016 and ordering that the husband pay the wife’s costs of the conciliation conference. I adjourned the matter for an undefended hearing in the event the husband failed to comply with the orders. I otherwise delivered short reasons for decision in Kappas & Kappas [2016] FCCA 420 on that day which clearly put the husband on notice of what he needed to do if he wished to be heard.
  4. Lawyers for the husband filed a notice of address for service on 29 March 2016 and prepared a response affidavit and financial statement which were filed on one April 2016. Those lawyers were given leave to withdraw from the proceedings when the matter was next in Court on 19 April 2016 and the husband appeared for himself.
  5. I listed the matter for a further conciliation conference and made further directions. Significantly, order 5 required the husband to serve his response and affidavit on his parents in order 6 gave his parents liberty to make file and serve any application and affidavit they wished to make before 19 June 2016. This is significant because of the claim made by the husband and his parents that the parents hold 50% of the interest in in the property Property H1 (“Property H1”). The husband’s parents had the opportunity to agitate their claim by seeking to be joined to the proceedings.
  6. The matter was listed for a second conciliation conference before the Registrar. The conference could not proceed because of the husband’s failure to provide discovery. Detailed orders were made when the husband was in Court with respect to disclosure by both parties on 19 April 2016.
  1. It is significant that the husband failed to make any serious attempts to comply with those orders. The aim of those orders was to provide evidence that would support the husband’s contentions, particularly with respect to contribution arguments, with respect to the two pieces of real estate the parties own as well as the husband’s share trading.
  2. The Registrar requested that the matter be mentioned in Court before me that day. Unusually she appeared in Court and explained that the conference could not proceed as the husband was extremely agitated. That was apparent from the husband’s presentation. The husband did not provide any documents in compliance with the orders. When appearing before me he said that the documents were joint accounts that the wife could just as easily obtained. As will be apparent from those orders they went well beyond joint accounts. I explained to the husband and that if at a final hearing I was satisfied there was deliberate nondisclosure and it may have an impact on the case. I also warned him that if he did not participate in the proceedings in a meaningful way the hearing would proceed on an undefended basis. I made it clear to him that if he wants to make an argument about contributions it is incumbent on him to provide the evidence in support of his case. I also warned him that he would not be permitted to simply rely on documents not previously disclosed if he attended the final hearing with a bundle of documents. Throughout that appearance husband was belligerent and disruptive. Due to his behaviour it was necessary for me to take an adjournment and security were called. The husband’s disruptive conduct continued whilst I delivered all reasons and made further orders, and the husband had to be escorted from the Court room.
  3. In many respects the husband’s ill temperate and disruptive behaviour acts against his own best interests.
  4. If the husband still had any doubts about what his obligations were, the reasons for judgement delivered on 14 July 2016 made it very clear including the consequences of failing to meet his disclosure obligations. One of the husband’s repeated refrains advanced was he wanted his day in Court. Parties of course have the right to agitate the case but they also have obligations, including complying with Court orders and not disrupting Court proceedings. Litigants have the right to the opportunity to be heard. I ordered that the husband pay the wife’s costs of the second failed conciliation conference and also made further orders the husband comply with his disclosure obligations as set out in orders 1 to 3 of the orders made on 14 July 2016. Again the husband failed to comply with those orders. Whilst he filed an affidavit on 4 August 2016 it fell well short of what orders 1 and 2 of the orders made on 14 July 2016 required.
  5. At the first scheduled final hearing on the 7 September 2016 the husband was represented by counsel and also an instructing solicitor. The husband filed affidavits by his parents the day before which were woefully inadequate. His parents were not available for cross-examination. His solicitor filed a notice of address for service the day before the hearing. It was clear that the solicitors had no involvement in the drafting of the affidavits and in fact had no knowledge of them.
  6. The husband’s counsel informed the Court that his client had complied with the previous costs orders. The husband’s counsel also conceded that the husband had failed to provide disclosure and that if his parents were not available for cross-examination then their affidavits would not be able to be relied on. The importance of husband’s disclosure obligations were again emphasised to him.
  7. The matter was not reached because of a parenting trial on that occasion. This was to the husband’s benefit given the state of his case preparation. Unfortunately, they did not utilise it. Whilst it was of assistance to him to have instructed solicitors and counsel it was apparent this was done shortly before the final hearing such that they were not in position to prepare documents on his behalf. His second solicitor filed a notice of ceasing to act on 21 October 2016.
  8. It has also been necessary to have security in attendance at future Court events. My impression is that the presence of security in the Court room had some effect on the husband’s behaviour during the final hearing but it was still necessary to warn him repeatedly not to approach the wife’s counsel, not to pace up and down the Court room and not to stare at the wife. He frequently shouted. Due to the husband’s behaviour the Court sat late in order to complete the hearing in one day.

Agreed facts

  1. The husband was born on (omitted) 1967. He says he is in good health.
  2. The wife was born on (omitted) 1965. She is in good health.
  3. The parties married on (omitted) 1992. They did not live together before they were married. They separated under the one roof in July 2015. The wife moved out of Property H1 in October 2015.
  4. The parties purchased Property H1 in 1991. The husband remains living in Property H1.
  5. They purchased Property H2 in 2011.
  6. The parties have two children, Ms M aged 20 and X aged 17. Ms M lives independently of the parties. X is in his final year of school. He lives in an equal shared care arrangement.

The husband’s evidence

  1. I permitted the husband to rely on all of his affidavits as he was self-represented. The wife’s counsel did not object to this course.

The husband’s affidavit sworn and filed on 1 April 2016

  1. The husband said that for about a year before the parties got married they were looking for a property to purchase. He says they had discussions with his parents about the possibility of them joining the parties to purchase a property.
  2. The parties purchased the property at Property H1 for $120,500. The husband says that he and the wife contributed $62,000 towards the purchase from savings, and he says his parents contributed the other $62,000. He says his parents borrowed $50,000 from the (omitted) Bank to finance their share of the purchase and that the rest came from their savings. He says that it was agreed that his parents would fund 50% of the property but the title was only registered in his and the wife’s name. It is not evidence that they accepted the loan offer.
  3. The husband says he and the wife did not borrow any money to fund their share of the purchase and says after contributions towards purchase of the house, their wedding expenses and their honeymoon he had $33,692.93 in his (omitted) Bank cash management account as at 31 January 1992. The husband annexes that bank statement and provides no other bank statements for that account. When cross-examined the wife said her savings went into that account so that some of that sum represents her contributions. There are no documents to support this. The husband also annexed a loan offer to his parents dated 11 November 1991. The letter of offer does not refer to what real property the loan relates. It is evidence that his parents applied for a loan, nothing more.
  4. The husband says that in November 1994 they demolished the home at Property H1 and over a period of two and a half years built a new home. He agreed and evidenced at the hearing that he and the wife lived with the wife’s parents for three years whilst the home was being demolished and rebuilt.
  5. The husband makes a general statement that he was responsible for designing and building the home as an owner builder.
  6. He says that when the parties lived in the home they paid rent to his parents. He says that the rent was proportional to the interest in the property but that it was significantly discounted as his parents were generous. He says that he continues to pay rent to his parents although it is paid on an ad hoc basis rather than weekly or monthly and sometimes he paid a bill for them in lieu.
  7. The parties purchased the property Property H2 in 2011 for $840,500. They used savings and a loan from (omitted) Bank to purchase the property. The husband refers to himself as being a property developer and Property H2 being his property development project.
  8. The husband claims that the assets of the parties are a 25% interest each in Property H1, a 50% interest each in Property H2, the wife’s jewellery, the contents in the home, and savings in the offset account of approximately $70,000. He also says that he has superannuation of approximately $150,000.
  9. The husband says that the parties have been able to accumulate assets during the relationship as result of their joint endeavours. His oral evidence was different. In his oral evidence he said that he made greater contributions than the wife.
  10. He filed a financial statement on the same day. He deposes to paying his parents $70 a week in rent. Again his oral evidence was different.
  11. In his response filed on the same day he seeks a declaration that the parties hold 50% of the property at Property H1 on trust for his parents and seeks 50% of the ownership be transferred to his parents. He otherwise sought orders that the remaining assets of the parties be divided equally between the parties. The husband sought to retain the two properties.

Husband’s Affidavit filed 4 August 2016

  1. This affidavit contains no paragraphs at all but annexes several documents. The first a letter addressed to the Court from his parents stating that they confirm that they have a 50% interest in the property at Property H1.
  2. The second Annexure is a letter dated 28 June 2016 from the parties’ son, X, addressed to the Court. He states that he asked his mother about what his father had put in writing about his grandparents involvement in the property Property H1. He says the paternal grandparents loaned his parents $20,000 which they repaid. It is surprising that the letter appears on an affidavit filed by the husband, as it does not assist the case. It is concerning that the parties have involved their 17 year old son in their dispute.
  3. The third annexure is a loan enquiry form with the parties’ names and address of Property H1 on it. It states that the loan for $90,000 was issued on 22 March 1996. It is not apparent from the document itself which bank it comes from. The husband placed great weight on this document and insists that the document proves that this is the first home loan the parties took out. The document does not prove one way or another that this was the first loan the parties took out. The wife does not dispute that the parties borrowed $90,000 from the (omitted) bank in 1996.

Husband’s affidavit filed 12 August 2016

  1. In this affidavit, the husband says that he pays for the children’s expenses on an ad hoc basis when required as does the wife.
  2. Throughout the marriage, the husband says he earned almost twice the wife’s salary.
  3. His last employed role was in a (employment omitted) role for (employer omitted) from 2012-2014. He says his base salary was approximately $136,000 per annum plus commission.
  4. Currently he is self employed as a property developer and options trader. He says that Property H2 is the second project and his livelihood. He describes his first project as being Property H1.
  5. The first planning permit for Property H2 was rejected and a further planning application is under way. The husband says that the planning permit application expenses have been approximately $30,000. Despite being ordered to provide documentary evidence he has not done so.
  6. The husband denies that the wife objected to his option trading activity. He says that contrary to the wife’s evidence there were no injunctions made by the Court on 5 October 2015. That is correct. The wife does not assert in her affidavit sworn on 5 August 2016 that the Court made injunctions. She says at [26(b)] that her solicitor told the Court that the wife would be informing the (omitted) bank that she would not consent to any further withdrawals from the account without her specific authority. She goes on to say that the husband attended the bank that day and withdrew $20,000.
  7. The husband claims that he has made significant profits through share trading.
  8. The husband annexes Australian Taxation Office notice of income tax assessments and other tax documents showing his taxable in the as well as the wife’s tax returns in support of his contention that he earned more than the wife during the relationship. I accept that that is the case.
  9. The husband refers to the funds he had in his bank account in January 1992 and says that it has a net present value of over $200,000. There is no evidence of this and in any event it is wrong at law.

Husband’s Affidavit filed 19 August 2016

  1. Husband filed a further affidavit on 19 August 2016 annexing further documents. The first Annexure is a copy of the auction advertisement for Property H1 indicating that the option was due to take place on 21 September. It does not indicate the year but it is agreed that it was 1991. The second Annexure is a hand written undated and unsigned document apparently written by the husband “entitled proposed structure of deal to purchase a home”.
  2. The document refers to initially dividing the capital required to purchase the property equally between the parties and the husband’s parents. It states that the parties would move in and live rent free for two years and that his parents would be compensated by the additional value which would be added to the property through the parties working on the property using their money. After a period of approximately 6 to 18 months the parties would build a new home.
  3. The document then says that when the rent free period lapses the parties have a number of options open to them being:
    1. Selling the property and dividing the money;
    2. Beginning to pay the husband’s parents’ share of the rent to them at market value;
    1. Buying his parents out;
    1. Moving out of the property and renting it out;
    2. Borrowing against the parties’ share of the property to buy a new house. I note here that the parties did in 1996 take out a home loan to purchase a property was not however a home loan taken out on a 50% share of Property H1. I will address this further later in these reasons.
  4. At the bottom of the page there are some calculations in percentages. It is clear that these are proposals rather than a fixed agreement. It refers to 1991 and the parties and the husband’s parents providing $55,000 each to purchase a house of $110,000. It also refers to 1993 with the parties providing a further $60,000 for new work on the property and then has an arrow referring to 67.65% and 32.35% that appears to indicate that the husband’s parents’ interest in the property would decrease from 50% to 32.35%. It also notes “1993 paying rent” and says” we pay 32.35% of it.”
  5. The second paged is headed “Benefits”. It then has two sections headed “Us” and “Parents”.
  6. The following points made under the heading “Us”:
    1. “Debt not necessary;
    2. Small initial investment;
    1. Living property worth more than investment reflects;
    1. Get into property before increase:
    2. Shared risk;
    3. Flexibility in choice at any point in time.”
  7. The following points are made under the heading “parents”:
    1. “ Small initial investment;
    2. Investment guided by more knowledgeable minds (us);
    1. Shared risk;
    1. No administrative responsibility;
    2. Capital appreciation and/or revenue after 1993.”
  8. The last Annexure to the affidavit is a copy of the sale receipt issued by (omitted) Real Estate dated 21 September 1991 showing the parties paid the deposit by cheque in the sum of $12,050. I observe that the husband has not provided any bank statements other than the single page annexed to his affidavit. This falls a long way short of his disclosure obligations and what he was ordered to produce.

The husband’s affidavit filed on 1 September 2016

  1. This affidavit refers to his outline of case filed separately on the same day. It also lists other documents which are in fact annexed to his case outline rather than the affidavit. As the husband represented himself, I am prepared to treat those documents as the annexures to his affidavit.
  2. He annexes a document entitled “account records account activity” dated of 1 September 2016. The husband claims he made significant financial contributions though share trading. He says that this is his e-trade account activity record. Looking at the document in reverse chronological order, the last page begins with an entry dated to March 2011 and has several other entries throughout the year of 2011. There are some entries for 2012 and 2013 but not to the same extent. The only activity in 2012 through to 7 June 2013 is a credit interest payment of one cent. There are limited entries in 2013 ending on 9 December 2013. There are no entries at all until 6 July 2015. There are then entries throughout 2015. It is apparent from the list of transactions 2015 is the most active year in terms of transactions made. From 29 February 2016 until 1 September 2016 there are only minimal interest payments and no other transactions. The printout shows activity. It does not show profits made or loss made, and there is no explanation given in the body of the husband’s affidavit as to how this document should be interpreted. It is apparent that husband did stop trading well before separation then started again after separation. The lack of activity from February 2016 is consistent with the husband’s evidence that the wife approached the bank to freeze the accounts. The document does not support contributions argument on the basis of share trading.
  3. The husband places great significance on the second Annexure. The original was tendered as an exhibit. It is a letter from (omitted) Conveyancing Services dated 15 November 1991 setting out the cheques required for settlement of the purchase of Property H1 on 20 November 1991. On the reverse side of the letter in handwriting, which appears to be the husband’s handwriting, there are several calculations, including the calculations with respect to disbursements as shown in the conveyancing letter. It refers to the figures setting out amounts with the heading “Mr Kappas” and “Ms Kappas” (being the parties) in another column headed “mum and dad”. The husband says it sets out the calculations of what he and the wife paid and what his parents paid.
  4. There is another heading further down the page entitled “Mr Kappas’ dad” with some hand written numbers and commentary.
  5. There are two further documents which are headed “(omitted)” which appear to be file notes of that company. On both pages there are several handwritten numbers including percentages and a description for some of them saying “mine” and then other figures which have the word “Dad” next to them some with ticks and some with crosses.
  6. The next Annexure is a largely illegible letter from (omitted) bank, being a home loan offer in the sum of $50,000 dated 11 November 1991 addressed to the father’s parents. It is not evidence that the parents took out a home loan. It is not evidence that the husband’s parents took out a home loan in order to purchase an interest in Property H1. I have referred to this document earlier.
  7. The last annexure is a one page document entitled “Particulars of Sale with respect to the purchase of Property H1”.

Husband’s affidavit filed 18 January 2017

  1. The body of this affidavit refers to attachments, being car valuations and property valuation statements. Despite this no documents are attached. Much of the content of the affidavit is argument and not evidence. It is critical of a letter the wife’s solicitor sent to his parents in September 2016. There was nothing inappropriate in that letter. In fact the letter was a constructive attempt to obtain further particulars about his parents’ claims to any interest in Property H1 given the woefully inadequate detail in the affidavits they filed.
  2. The husband complains that the wife froze all their accounts making it impossible for him to earn a living from options trading since October 2016. He also complains about the wife withdrawing $900 a month since November 2016 for half the rent for Property H1. Up until October 2016 the husband retained all of the rent of approximately $1800 a month. The husband complains that the wife was aware that the property was vacant in December but she deducted funds anyway. He also complains that there were various work and costs needed which she did not contribute to. He provides no particulars and did not provide evidence in that respect. He referred to a letter provided by the real estate agent but does not annex it. The husband complains that he was paying the utility bills for both properties and that the wife was obliged to contribute as well. In circumstances where he had the benefit of occupation of Property H1 to the exclusion of the wife, and up until October 2016 was retaining the whole of the rental proceeds from Property H2 is simply not reasonable to expect the wife to contribute to those costs and is properly a matter for him.
  3. The husband goes on to make complaints about the wife being malicious and deliberately putting the (omitted) Bank account into overdraft by withdrawing $10,000 in September 2016 and refusing to permit him access to the $22,000 in the trading account which was frozen by her. He talks about copying the children into correspondence, exhibit A, which is a vile email addressed to the wife’s solicitor. He was unrepentant about copying the children into that email.
  4. Again the husband complains about various expenses he has had to make without providing any documents with respect to them, despite him being on notice of his obligations to do so for many months. The husband goes on to complain about the wife’s seeking further personal items from the home and says that he understood that the wife had collected them but went on to list particular items. He said that they would be provided to the wife shortly before the hearing. He took a completely different position at the hearing.
  5. He goes on to complain about the denial of his parents’ interest in Property H1 and says his parents are in the process of giving him a power of attorney and wish him to “exercise [his] judgement over their interest in Property H1”. He then goes on to respond to some points in the wife’s affidavits which she was also cross-examined about.
  6. The husband complains about the valuation of the property and purports to give evidence about what he thinks the properties are actually worth. He is not a valuer and is not able to give that expert evidence. The wife obtained updated valuations just prior to the hearing and was granted leave to file in Court an affidavit by the valuer annexing those valuations as at 24 January 2017, Property H1 was valued at $1,350,000 and Property H2 was valued at $1,200,000. Both amounts are higher than the earlier valuations. The husband’s complaint was that the valuations were too low. If the wife were to accept his values the husband would be substantially worse off. The Court explained to the husband that if he wanted to challenge the valuations he would need to cross examine the valuer and that should he wish to do so he would have that opportunity. He declined that invitation. The husband’s position at the hearing also changed in that he now agreed that Property H1 should be sold. As that is the case the market will determine the value of the property.

Husband’s affidavit filed on 27 January 2017 and case outline

  1. The husband filed a further affidavit which simply refers to an updated case outline which he filed separately on the same day. The case outline makes further assertions about what he thinks should be the financial adjustments including a claim that the wife has $25,000 in jewellery. He asked no questions about jewellery and there is no evidence about the wife’s jewellery, let alone it having a value of $25,000. The husband also refers to costs associated with Property H2 which again he has provided no evidence for and cannot be taken into account in those circumstances.

Affidavits by the husband’s parents

      1. The husband filed one affidavit by each of his parents on 7 September 2016. They are in identical terms and say the following in its entirely:
        Please be advised as per our letter previously submitted by our son in affidavit that we confirm we have a 50% interest in Property H1, entrusted through and maintained by our son Mr Kappas since it was purchased in 1991, in a verbal agreement made at the time.

 

We borrowed $50k from the (omitted) Bank and together with our cash savings we handed over to Mr Kappas the total required for a share which he then completed the settlement of the property in 1991.

 

Our son advised us we did not need to go on title as we trusted each other. When we envisaged the property being sold we would receive a 50% share back, whether our son and his wife would buy our share out or whether the house was sold on the market.

Cross examination of the husband

  1. The husband wished to place emphasis on the fact that he has originals of documents from 1991 and said that fingerprints could be used to verify the authenticity of those documents, Exhibit D. That is somewhat missing the point. The real issue is what does the content of the document prove?
  2. The husband was unable to say when this document was written. He says it stands to reason that it was prepared prior to settlement of the purchase of the property because it has some calculations with respect to the settlement. He said after 25 years he could not be sure. He then said that his parents took out a loan to make up the difference to their equity in cash. He was then asked if he was making his parents available to give evidence and replied in the negative.
  3. The wife’s counsel put to the husband that he would be making a submission to the Court that the husband’s failure to call his parents was because his parents could not give any evidence that would assist his case. The husband replied that they could not say anything more than what is in their affidavits. Their affidavits contain bare assertions and no evidence. They provide no detail as to their circumstances and how the alleged agreement came about.
  4. It was put to the husband that handwriting on the back of the conveyancing letter must have occurred after it was received. This is a matter of logic.
  5. The husband was cross-examined about the (omitted) Bank loan application document. It shows the husband as the principal borrower and the wife as the additional borrower. In answer to the question who filled out the documents, the husband said he remembered it vividly and says the bank failed to provide the documents to them in a timely matter and they could not have the opportunity to review them. He said they both had to sign the document on the day they received the document, about a week before settlement. The husband was very keen to give that answer before being asked about the content of document.
  6. The husband said that the bank was primarily dealing with him and received the information from him. The document states that the parties started living in Property H1 in January 1992. Again before being asked the question he said “if you’re suggesting that my parents aren’t noted on this I can concede that”. Despite being warned by me that he needed to listen to the whole of the question before jumping in and answering, he continued to interrupted mid-question and give evidence he wanted to give.
  7. He agreed that the document refers to him and the wife owning the property outright. He says that both he and the wife represented to the bank that they owned the whole of the property and did not refer to his parent’s ownership.
  8. The husband says that he paid his parents rent. He then said that he did not want to disclose that to the bank. He went on to say that they both lied to the bank. I do not accept his evidence on this point. I find that on the balance of probabilities the loan application is accurate. It does not refer to his parents because they do not have an interest in the property.
  9. The husband agreed that they lived in Property H1 for about two years before moving out to demolish it and that during that period they lived with the wife’s mother for about three years. The husband denied that during that period he used that opportunity to save money. He then said he was saving money but he was not relying on this he had earned had significant money earned “in a number of ways previously”. He agreed that they took out a loan about halfway through construction which is consistent with the $90,000 loan the parties took out in 1996.
  10. It was put to the husband that it is just not credible that he only had a single page of a bank statement from 1991. Despite having opportunity he gave no explanation whatsoever as to how he has that one page and not any other instead he was argumentative and unresponsive. My impression is that the husband was determined throughout the proceedings to only provide documents that he thought persisted his case and with respect to any other document that was requested of him including for example his superannuation statements he simply failed to comply with orders. His bank statement from February 1992 shows that he has about $33,000 in the account. He says he used those funds to invest into (omitted) shares. He then said he used about $20,000.
  11. The husband’s evidence with respect to his financial position in the purchase of Property H1 leaves the Court with more questions than answers. The husband was unable to give evidence as to how much the build of the house cost. This is curious given his ready ability to give evidence about various other figures around the same time and earlier.
  12. The husband agreed that during this period the wife was working hard to save money as was the husband. It was put to him that the wife says she was working hard to repay the loan to his parents. The husband replied that that was farcical but then went on to say that “we were making payments for the equity my parents had in the home”. He then went on to say that the payments were for rent to the equity they did not hold. He could not say what the amount was. Nor could he say how much income he was earning. He says they paid his parents back on an ad hoc basis. He said that they did not pay rent whilst they were not living in the house but he could not be sure. He then gave a flippant answer referring to “Mr Trump” and “alternative facts”.
  13. The husband agreed that he was ordered to provide documents with respect to his superannuation and that the wife’s lawyer had written to him requesting that. He again rather flippantly said that he has lost super and was not interested in it.
  14. The husband said that he has not been in paid employment since the parties separated and said he has applied for a few jobs with an income ranging from $70,000 to $350,000 a year. He said he had applied for five jobs in the last seven months. He agreed that he is qualified to engage in (omitted) jobs, in which he was previously earning $100,000 plus a year.
  15. The husband conceded that there were no funds in the (omitted) Bank manager account when the parties separated.
  16. The husband was then cross-examined about the withdrawals from the parties’ bank accounts. The husband does not dispute that he made withdrawals totalling $103,000 post separation and the wife withdrew $20,000. As a result of this concession it is not necessary to set out the transactions.
  17. My impression of the husband’s oral evidence overall is that he was most concerned with repeating his version of events rather than listening and answering the questions he was asked. He was argumentative and unresponsive. I am mindful that the husband found the hearing stressful and was self represented. Nevertheless I did not find him to be a credible witness.
  18. The husband was then cross-examined about the rent received from Property H2. The husband says that the rent does not go directly to pay the loan but is deposited into the access account. It is clear from his own evidence that the rent has not been used to pay the mortgage since separation. Rather the offset account has been used to pay the mortgage. As no payments have been made into the offset account the parties indebtedness to the bank has been increasing since the parties separated.
  19. From September 2015 until September 2016 the husband has received the whole of the rent and used that for his expenses without paying the mortgage. Since September 2016 the wife has taken half of the rent.
  20. The husband complains that the wife withdrew the last $10,000 putting the account into default. It is not clear which account he is referring to. He went on to claim that since September 2016 he has been depositing funds into the offset account. He has not provided any bank statements of his showing this. He then said he has been making cash deposits.
  21. At [14] of the wife’s affidavit sworn on 16 January 2017 she agrees that the husband has made three deposits since the parties separated as follows:
    1. $3,000 on 18 October 2016;
    2. $2,600 on 11 November 2016; and
    1. $2,860 on 16 December 2016.
  22. The bank statements that the wife tendered show these deposits. There have been no other deposits to that account since separation.
  23. The husband claims that he used the cashed he withdrew from the bank to pay the architect, town planner, and traffic engineer, on VCAT fees and council fees, to purchase a car, and on living expenses. His answers were somewhat confused as he gave contradictory answers. His evidence is that he took the amounts totalling $103,000 in cash. He claims he has a little left. When pressed he said “might be $5,000.” The husband has failed to produce a single document with respect to his alleged expenditure

The wife’s evidence

  1. The wife has filed three affidavits in these proceedings.

Wife’s affidavit filed 7 August 2015

  1. The wife filed a brief affidavit with her initiating application. She did not rely on it during final hearing. The husband listed it as a document he relied on and he cross-examined the wife about paragraph 4 where she says that at the time of the marriage neither party had any significant assets. This is inconsistent with her subsequent affidavit.

Wife’s affidavit sworn and filed 5 August 2016

  1. The wife refers to expenses she is paying for their son. To the extent of the parties’ dispute what they are paying for their son is a child support issue. In any event it is apparent from both their evidence that that each are making some contributions towards his expenses and the son is living with each of them in an equal shared arrangement. I will not comment on this further.
  2. She says that she continues to pay private health insurance for the family which includes the husband. The husband did not challenge that evidence.
  3. The wife continues to be in employment at a (employer omitted) and refers to her hours and income. She says the husband has not been in paid employment since April 2014 that when he was working she estimates that his income was between $100,000 and $120,000.
  4. At [19] the wife says that the husband told her he has resumed share trading on 5 July 2015. Prior to that he had not been actively share trading since 2011. In the following paragraph she says he used the (omitted) Bank accounts including the Equity Manager Credit facilities without telling her.
  5. At [26] she sets out the withdrawals the husband made and annexes bank account statements showing the increasing indebtedness.

Wife’s affidavit filed and sworn on 16 January 2017

  1. In her third affidavit the wife annexes several documents including the loan application the parties made to (omitted) Bank for the purchase of Property H2, a Redbook valuation for her Toyota (omitted) and her superannuation statement showing the value of her superannuation entitlements as at 14 January 2017.
  2. In addition she annexes correspondence between her lawyer and the husband. Annexure K6 is an email from the husband to her solicitor dated 16 June 2016. The husband complains about not receiving documents. He refers to his parents’ interest and after using highly offensive language he says that apart from the issue of his parents’ interests there is hardly anything else in dispute.
  3. Annexure K7 is a letter from the wife’s solicitor to the husband’s parents 8 September 2016. In that letter her solicitor refers to the affidavits prepared by them handed up at Court. He asks them to provide documents supporting their claim and notes that the value of their claim is $600,000 given the valuation of Property H1. He also refers to the construction carried out and the fact that the parties borrowed money to fund that. He makes it clear that the wife does not accept their claim.
  4. Annexure K8 is an email response which says it is from the husband’s parents but is sent from the husband’s email address. Most unfortunately the children are copied in. The email is dated 22 December 2016. They say their son speaks for them and they use his email address. Their email does not advance matters but simply repeats what they have said earlier. They provide no further detail and no document. They call the wife a liar and a thief.
  5. Finally the wife annexes a list of personal items she says she wants to collect from Property H2. She says that since she moved out in October 2015 she has made several attempts to gain access to the home to retrieve her belongings but the husband has refused her access.

Cross-examination of the wife

  1. The husband cross-examined the wife about the inconsistencies in her first two affidavits with respect to the assets she had at the beginning of the relationship. In her first affidavit at [4] she says neither of them had any assets of any significance at the beginning of the relationship. In her second affidavit at [35] she says they had about $40,000. She says she had about $30,000 and the husband had about $10,000. When asked to explain the inconsistencies she said “the second one is correct, only because the first one was a vague answer”. That is not a satisfactory explanation for what is a significant inconsistency in her evidence. I do not accept that she had the greater savings than the husband at the commencement of their relationship.
  2. The wife was cross-examined about the funds the husband had in his (omitted) bank account in February 1992 the sum of approximately $33,000. She says he had that sum after she transferred her funds into the bank account.
  3. In the course of his cross-examination of the wife the husband claimed that he attended the bank and obtained title search which showed the parties did not have a loan in 1991. He has failed to produce this document which is surprising (if it exists) given the fact that the only documents he has disclosed are documents which he thinks support his case.
  4. The wife does not dispute that the parties borrowed money from the (omitted) bank in 1996. The husband relies on a printout with respect to loan. The document itself also is not identified as being from the (omitted) bank, however it refers to the amount the parties agree that they borrowed. What the document does not prove, despite the husband’s insistence to the contrary, is that it was the first mortgage the parties took out.
  5. The wife says that she does not know how much they borrowed in 1991. She says they borrowed $20,000 from his parents because that is what the husband wanted to do. The wife said that at the time of the husband’s bank account statements showing $33,000 the parties had not yet set up joint accounts.
  6. The husband then attempted to cross-examine the wife about his parents’ financial circumstances in 1991. That of course is one of the very matters on which his parents would have given direct evidence and could have been cross-examined. It was inappropriate in those circumstances the husband cross-examine the wife about the very issues that he was on notice of and that his parents could have given if they chose to do so. The wife disagrees that the husband’s parents provided half of the funds for the cost of Property H1.
  7. The husband cross-examined the wife about the loan offer document offering his parents a $50,000 loan. Again the husband failed to appreciate that all this document can prove is that his parents were offered a loan. The document says “we are pleased to advise that your application for a loan to purchase your home…”. When reading out that sentence the husband then said that the document is false because they owned their home. As pointed out to him that he was the one relying on this document and now was saying it was in error. The husband again attempted to cross-examine the wife about whether or not his parents and he spent money to improve their home since 1991. Again it was not proper for him to seek to cross-examine the wife about his parents’ financial circumstances given that he had the opportunity to have his parents give evidence in Court and put on affidavits that actually gave that evidence. As has been indicated above, he was well aware of that and the consequences if he did not do so.

The parties’ credibility

  1. I am mindful that as the husband appeared without legal representation he did not have a filter and that his belligerent disrespect is not a factor that should influence the outcome of the property proceedings nor has it. I make this statement for his benefit.
  2. When assessing the credibility of the parties in the witness box I find that generally the wife was more credible than the husband. At several points during the husband’s evidence he was non-responsive.

Conclusions with respect to husband’s parents

  1. The husband has failed to make out his case. When the case was before me on 7 September 2016 the husband was legally represented. The final hearing not reached in that occasion.
  2. The husband had filed affidavits by his parents the day before. The husband was present in Court. His counsel conceded that if the husband sought to rely on those affidavits his parents would need to be available for cross examination.
  3. The issue of non-disclosure was also raised and the paucity of the documents the husband had provided with respect to his parent’s interest in Property H1.
  4. The husband was in Court when the issues were discussed and had the benefit of legal advice. It is likely that he made no real attempt to cure the problem.
  5. As noted in [6] of these reasons, the parents were given the opportunity to seek to join the proceeding and agitate their claim. They have chosen not to do so and have also chosen not to make themselves available for cross-examination.
  6. The wife’s counsel referred to the decisions of Vadisanis & Vadisanis & Anor [2014] FamCAFC 97 (“Vadisanis”) and Atuk & Atuk & Anor [2016] FamCA 179 (“Atuk”). In the first case the intervening party was the mother of the husband. She sought a declaration that the parties were indebted to her. In that case there was agreement that she advanced money to parties. The issue was the characterisation of those advances and the legal and equitable effects of them.
  7. In Vadisanis, the Full Court considered the presumption of advancement. The presumption applies to a relationship between parent and child. Is it that something to a child is presumed that the parents of the child beneficial interest in that. The presumption can be rebutted. The Full Court observed that the intervener had with respect to but the presumption and that beneficial interest is determined at the time of acquisition. Both Vadisanis and Atuk discuss the well-known High Court decision of Calverly v Green [1984] HCA 81; (1984) 155 CLR 242 and the comments made by Gibbs CJ with respect to the presumption of advancement.
  8. In Atuk Foster J said at [83]:
    As a consequence of the relationship of mother and son the presumption of advancement arises and as there is no evidence to displace such presumption any presumed resulting trust is displaced in favour of the husband holding the legal and equitable title to the property.
  9. Foster J also referred to the case of West v Mead [2003] NSWSC 161 and set out the following at [87]:

In West v Mead [2003] NSWSC 161 Campbell J considered what was to be established before such a trust could be imposed:
First, it is necessary that there be both a joint relationship and endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired. The scope of the joint venture in which the parties were engaging may be of relevance and as Deane J in Muschinski considered, may change from time to time.
Secondly, the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated “without attributable blame”.
Thirdly, there must be the requisite element of unconscionability – it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.

  1. The circumstances in Atuk were similar to Vadisanis. In Atuk the husband’s parents contributed to purchase Property H1. At [67] the Court referred to the fact that at the time the house was purchased the husband represented to the mortgagee that he was buying the house for him and his parents to live in. He did not suggest that he had any intention that his parents had in beneficial interest in the house. The Court discussed the law with respect equitable trusts.
  2. Discussing the case of Atuk counsel drew attention to [80] with respect to the reference to the principle advancement, the presumption is that the equitable title to the property is the same as the legal title unless that presumption is rebutted. In some circumstances it has been found that the legal title holder holds the whole or part of the title on trust for another party as a result of a resulting trust or a constructive trust.
  3. The fact that the husband had $33,000 in his account after the settlement of the purchase of Property H1 is not consistent with needing his parents to purchase half of the property.
  4. The loan offer addressed to the husband is nothing more than that – an offer. It does not prove that his parent’s borrowed $50,000. It certainly does not prove that they borrowed $50,000 to purchase a half share of Property H1. The offer itself is not a complete document. It does not say anything about what representations were made to the bank about what the loan was for and what the financial circumstances of the husband’s parents were.
  5. It seems unlikely that the husband’s parents would take out a mortgage, presumably secured over their own property, to assist their son purchase a property without their son having to take out a mortgage himself.
  6. The evidence does not support a finding that there was any such joint endeavour between the husband and his parents. At its highest the evidence shows that consideration was given by the husband to various options for the parents investing in the property.
  7. In reliance on the principles set out in that Jones v Dunkel (1959) 101 CLR 298 the wife’s counsel asks the Court to draw an adverse inference against the husband with respect to his failure to cause his parents to give evidence being that he failed to call his parents as witnesses to give evidence because the evidence would not have assisted his case. He referred to recent decisions of Owen & Owen [2016] FCCA 2130 and [100] of Judd & Cornell-Judd [2016] FamCA 390 at [100] which apply the principle. I am satisfied then considered the whole of the evidence that it is appropriate to draw such an adverse inference here as well.
  8. I accept the wife’s counsel’s submissions that it is significant that the husband represented to financial lending institutions that he and the wife were the sole titleholders of Property H2 and the sole purchasers of Property H1. He goes on to submit that the Court will never be in a position to know whether the funds were borrowed or advanced by the husband’s parents because the husband and his parents have chosen not to provide any evidence.

Contravention by Mother proven

Contravention by Mother proven

Crompton & Crompton

CONTRAVENTION – REASONS FOR JUDGMENT

  1. The application is one by the father alleging 13 separate counts of contravention by the mother of parenting orders made by Judge Baker and by consent on 27 October 2014 in respect of the parties’ child X born (omitted) 2009.
  2. The applicant father prepared his own application and supporting affidavit. However, both parties were represented by counsel at the hearing before me. The mother, although not necessary under the Rules, has filed an affidavit affirmed 17 March 2017.
  3. Counts 1, 2, 7, 8 and 13 were abandoned by the father.
  4. The mother entered not guilty pleas to 2 counts being, firstly, that on 29 December 2016 and contrary to order 4 of her Honour’s orders, she had the father arrested under a Police Family Violence order and then collected the child from the police whilst the father was being interviewed thereby denying the father Court ordered or agreed time with the child. Secondly, she entered a plea of not guilty to a charge that on the 22 February 2017 and contrary to order four of her Honour’s orders that she collected X from her school preventing the father’s time with the child.
  5. To the remaining six accounts, the mother entered pleas of guilty but with a reasonable excuse.
  6. Both parties gave evidence in accordance with their affidavit material and were cross-examined.
  1. At count three the applicant alleges that contrary to order four of the relevant orders and on 17 February 2016 the respondent collected the child from her school preventing his time with X. The mother admits the particulars of the count but argues a reasonable excuse.
  2. The mother says that she acted on reasonable grounds to protect the emotional health and/or safety of X in not sending her for time with father.
  3. The mother offers two arguments. Firstly, she says that the father had lost his driver’s licence and was in Court on the relevant day being the 17 February 2016 on a breathalyser charge. She said that the father attended school on the relevant day in his car.
  4. The father says that he did attend the school. He says that he was driven by a friend, Mr J. Whilst Mr J was not at Court to give corroborating evidence, I tend to prefer the evidence of the father given that he adduced evidence that he had, in fact, lost his licence as long ago as November 2015. In any event, if the mother is relying on such a defence then she must have been simply anticipatory in attending at the school when the orders provide for the father to collect X from the school. The father’s denial of driving on that day was not successfully challenged. I prefer the evidence of the father. Secondly, the mother argues that she did not send X because of the father’s abuse of her by text messages on or about Friday 12 February 2016 and because of his ‘deteriorating mental state’. She does not particularise the latter. The alleged abusive messages comprise of:
    “too easy cock, payback is a bitch… Question is, when are you gunna start fucking (omitted).
  5. Whilst such language may be inappropriate and arguably abusive, the mother notably did not come to this Court to seek a suspension or variation of the Court orders. I am not satisfied, therefore, that this language within context and chronology amounts to a reasonable excuse. I find, therefore, that the mother contravened the orders as to count three of the application.
  6. At count four the father argues that on 26 August 2016 and contrary to order 4 her Honour’s orders the mother collected X from the school preventing the father’s time with her. The mother again argues a reasonable excuse.
  7. The mother says that on the relevant day she received a text message from the father saying that he was ‘losing it’ and ‘needed to see a physc’. She says the father claimed that he was drinking and could not have X on that day. The mother says that she offered to collect X so that the father could ‘have time out’. He responded that she should not be at the school because he will ‘go off’. She says that the father made a statement being ‘now I am close to leaving everything to be with the worms’. She said that she interpreted this as suicidal ideation. The mother responded that the father could see X the following weekend which would be the Father’s Day weekend.
  8. The father concedes that he made the text comments attributed to him.
  9. Counsel for the father argues that the mother is not acting reasonably after denying the father time on 26 August as on that day she, in fact, offered him time the following week and could not therefore have had legitimate concerns as to his psychiatric state. I do not accept this rationale. I prefer that the mother confronted with the text comments made on the relevant day and now conceded by the father was acting reasonably in denying the father time with X on that day. I find count four not proven.
  10. Thirdly, at count five the father alleges that on 19 October 2016 and contrary order 4 of her Honour’s orders, the mother collected the child from her school preventing the father’s time with X. The mother offers a reasonable excuse argument.
  11. The mother says that the father had seen X only irregularly between August and October 2016 and at other times it was agreed that he would not see X as he had agreed he needed professional help. She deposes to messages to this effect in her affidavit.
  12. The mother says that in late October she maintained concerns as to the father’s psychiatric health and that there was an agreement reached that the orders would not be followed. She says, however, that she did take X to see the father on the following day being 20 October 2016 which is Hobart Show Day. Essentially, therefore, the mother argues a reasonable excuse being that there was a collateral agreement between the parties between August and October 2016 that the father would not always see X given the mother’s and his own health concerns. The father in his evidence conceded that he has had difficulties with his emotional or psychological health and has received a referral from his general practitioner to a psychologist. Significantly, he conceded a text message on the relevant date to the mother saying ‘I’ve been medicated all weekend…’ and ‘thank you, Ms Crompton, thank you. I am working through it for a better life for me and X’. In the witness box the father conceded that the ‘medicated’ meant that he was dealing with his problems with alcohol.
  13. I generally accept the evidence of the mother in this respect. Given the above-mentioned text message conversations, I am satisfied that the mother acted reasonably in withholding X from time with the father on 19 October 2016. I find that the count is not proved.
  14. Fourthly, the father alleges that on 21 December 2016 and contrary to order 4 of her Honour’s orders the mother did not to attend the (omitted) police station for a change-over thereby denying the father time with the X.
  15. The mother argues a reasonable excuse. She says that 21 December was the last day of school. She said that there was an end of year party at the school and she invited the father to attend. It seems that the father did attend but that the times were confused. He became agitated and left the school. He concedes that he later sent a text message to the mother saying ‘always got to make me the fool at school, hey, you can pick her up and apologise for me and X. I am not because I’m having a rum.’ She alleges further abusive comments.
  16. The mother concedes that she did agree to a collect X and take her to the father’s home. She says, however, that his behaviour was volatile, threatening and abusive and she determined not to leave X.
  17. I accept the mother’s evidence in this regard. The father’s own evidence suggests that he was upset at the confused arrangements at school. He concedes that he indicated that he would be drinking rum on the relevant day. I accept that the mother altruistically agreed to a collateral arrangement that she would drop X at the father’s house. Within context, therefore, I also accept the mother’s evidence that the father’s behaviour was then so volatile that she did not believe it in X’s best interest to leave the child with the father. Consequently, I find the count not proved.
  18. Fifthly, the father alleges that on 29 December 2016 the mother denied him time with X by making a complaint to Tasmania police under the Police Family Violence order and collected the child from the police whilst the father was being interviewed. He alleges a collateral agreement that he was to spend time with X for a period of 14 days from Christmas Eve.
  19. The mother enters a plea of not guilty. She says that there was a collateral agreement. She does not, however, particularise it with any detail. She suggests that she let X go to the father and would ‘telephone X’ to organise the end of the period of time. The orders made by her Honour would have the mother collecting X on Christmas Day at 5.00 p.m. from the (omitted) police station. She did not do so and it is clear that X overstayed that time with father with the consent of the mother. Further, the mother is unable to give a satisfactory explanation as to why she should involve Tasmania police in what was effectively a collection of child. There is no evidence of any relevant antecedent behaviour such to involve the police.
  20. In all the circumstances, I prefer the evidence of the father that there was an agreed period of the time outside of her Honour’s orders but that the mother reneged on that agreement and involved Tasmania police thereby securing the return of X into her care contrary to the collateral agreement.
  21. I find the count proven.
  22. Sixthly, the father argues that on 8 February 2017 and contrary to order four of her Honour’s orders the mother collected X from school thereby preventing his time with X. The mother offers a reasonable excuse. She says that she had attended at Court ordered changeovers on Wednesday 4 January, Wednesday 11 January and Saturday 14 January and on each occasion the father had not to attended. She said that X had, in any event, indicated that she would resist going with the father. She said that X gave similar indications on 8 February 2017 which was the first day of school and where changeovers would happen at the school. She said that X resisted going with the father at the appointed time and the police attended, intervened and encouraged the father not to insist on his Court ordered time.
  23. The father says that the mother was holding X’s hand and running away with her saying ‘run X run’.
  24. I do not accept the mother’s evidence as a reasonable excuse for her failing to hand X over to the father on the 8 February 2017. Firstly, this was a school day and the orders provide for changeovers to happen at school. There was no reason for the mother to be in attendance. Secondly, if as indicated by the mother, X had been exhibiting resistant behaviour for a number of weeks, then the mother could and should have come to a competent Court so as to obtain relevant orders suspending or varying X’s time with the father. As she did not do so, I am not satisfied that she successfully argues a reasonable excuse. I find the count proven.
  25. Seventhly, the father argues that on 15 February 2017 and contrary to order 4 of her Honour’s orders, the mother did not provide X for time with the father by collecting X herself from the school.
  26. The mother argues a reasonable excuse. She said that X did not go to school on the relevant day because she was ‘upset’. The mother concedes that she did not advise the father accordingly. She says that she did not to obtain a certificate from a doctor or otherwise. She says that she did not contact solicitors. I do not accept this as a reasonable excuse where it is well established that a parent with primary care of a child has a positive duty to encourage and facilitate a child’s time with the other parent. I find the count proven.
  27. Finally, the father argues that the mother contravened the relevant orders on 22 February 2017 when she did not provide X for time with the father. The mother has entered a plea of not guilty. Nevertheless, when giving her evidence, it appears that she argued a reasonable excuse. Her evidence was simply that X was physically ill with gastroenteritis on the relevant day. The father concedes that he did receive information on the day before in these terms. The father suggests that X did, in fact, attend at school on that day. I have no evidence from the school one way or the other. Given the mother’s advice to the father, I accept her evidence and therefore attribute to her a reasonable excuse in not sending X for time with the father. The count is not proven.
  28. Consequently, I find as follows: –
    1. That the mother, Ms Crompton, contravened Court orders on 17 February 2016, 29 December 2016, 8 February 2017 and 15 February 2017.
    2. Allegations in respect of alleged contraventions on 26 August 2016, 19 October 2016, 21 December 2016 and 22 February 2017 are not proven and thereby dismissed.
  29. I will hear counsel as to penalty in respect of the four counts of contravention proven.