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Father Dismissive of Concerns Regarding His Excessive Alcohol Consumption

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT NEWCASTLE

 

NCC 2809 of 2016

 

MR TALIS

Applicant

 

And

 

MR TALIS

Respondent

 

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. I have an application for parenting orders in relation to X, who is 11 and Y, who is eight.
3. The children live with their mother and have done so since their parents separated in January 2016.They have spent some time with their father since separation but the father is an alcoholic. He has a longstanding problem with alcohol consumption and there have been a number of issues in trying to get arrangements in place for him to spend time with the children which are safe for the children.
4. Initially after separation the mother agreed to the children spending regular weekend time with the father but it was because he was living at Town B and the mother believed that he was living with his parents.
5. The girls love their father and they enjoyed those visits. However in November 2016 there was an incident where the father had the children for the weekend and was supposed to deliver them to school on the Monday morning but failed to do so. A friend of the father’s went to investigate and found that the father was extremely drunk and was making statements that caused fear for his safety in terms of him perhaps harming himself.
6. The father was taken to hospital and the children were returned to the mother and shortly after that the mother commenced these proceedings.
7. The father was in a fairly awful state when he arrived at hospital. He was breath tested on several occasions that evening. His initial reading when he turned up at the hospital was .24 and it had dropped to .19 when the last test was taken. The father was seriously drunk and in a very bad way. The children had been in his care when he consumed a very large amount of bourbon overnight and then failed to be in a condition to take them to school the following morning.
8. After the mother commenced proceedings interim orders were made for the father to spend time with the children (because the mother has never wanted to stop that) but it was on the basis that his time with them would be supervised and that he undergo a breathalyser test at the beginning of the time.
9. The father has by and large spent time with the children in accordance with the interim orders but similarly to the way the father has been for a large part of his adult life, he refuses to accept that he has a serious alcohol problem. He has never been willing to undergo testing during the court proceedings and he deeply resents the supervision that the mother considers necessary for the girls’ protection.
10. In June 2017 I ordered the preparation of a limited issues report and the issue I asked the family consultant to consider was what time could be ordered for the father to spend with the children given his historic alcohol dependency.
11. The family consultant interviewed the father. He made some admissions about his heavy alcohol use, which he said had commenced when the parties started their relationship and prior to X’s birth in 2007. He tended to cast some blame on the mother and said that she also liked to drink but the information he gave the family consultant confirmed that he had a lengthy history of very heavy drinking.
12. In 2013 the father underwent detox. Things seemed to get a little better for him for a while after that but eventually (the father said it was in 2015) his alcohol use spiralled out of control again and in January 2016 the parties separated.
13. The father was told during the detox that the only solution for him was abstinence but he has never been able to achieve abstinence as far as anyone is aware.
14. The post-separation period was a difficult one for the mother. She remained in the former matrimonial home and the father frequently let himself into the home. It would appear that he had a key made and kept using it to get in. There were some concerning incidents where the mother came home and found that things in the home had been moved.
15. The mother ultimately had the locks changed which meant that the father did not have a key but I cannot remember if that entirely ended the problem or not. I think it may not have. So aside from continuing to drink very heavily the father also continually invaded the mother’s space and entered the home in her absence.
16. The mother mentioned earlier a concern about the father’s mental health. That was also a common thread through the parties’ lives when they were together. The father was sexually abused by a teacher as a child. He has struggled to deal with that. It is his case as I understand it that on occasions that he drinks heavily to mask the pain of that.
17. The father has also suffered from depression during his adult life and has made some threats to harm himself and of course alcohol being a depressant would not help him in that regard.
18. The father’s alcohol consumption and his mental health issues are seriously concerning because there is a real potential for the children to be at risk of harm if the father drinks heavily or drinks at all when they are with him. I say drinks at all because the situation is one where if the father has one drink he just cannot stop.
19. The children will be at risk if they are with the father and he is drinking and that is why the mother has insisted on the breathalyser at the commencement of the time.
20. Sadly for the father he simply does not accept that he has a problem and does not accept that the mother should be able to control his time with the children or test him for alcohol. He has put up with it since the interim orders were made but it is his position that the mother should now trust him and let him have regular weekend and half holiday time with the children unsupervised.
21. The mother is not willing to agree to that. She basically cannot do it and given the incident in November 2016 and the father’s complete and utter refusal to undergo any testing in the course of these court proceedings, not only is the mother’s position understandable but the court cannot do it either.
22. The mother is caring well for the children. She recognises that they love their father; the family report writer mentioned that they loved their father. She would like them to see their father regularly but she wants them to be safe.
23. The mother has proposed a set of orders which will provide for the children to live with her and for her to have sole parental responsibility and for the father to spend time with the children but she has built in some protective measures, including the father undergoing the breathalyser test at the beginning and having someone present when the children are with him.
24. It may be that at some time in the future the father will be able to demonstrate to the mother that he has ceased using alcohol. That is not beyond the bounds of possibility. Some people do become abstinent. But at the moment the father has not done that and the only thing I can do is to finalise the matter in the way the mother suggests.
25. In terms of parental responsibility the presumption of equal shared parental responsibility in s. 61DA of the Family Law Act is not rebutted because of any family violence or abuse of the children. However it would not be in the children’s best interests for me to make an order for equal shared parental responsibility given the father’s alcoholism. I cannot expect him to be always available to discuss decisions about the children with the mother. It is also open to question whether he is able to make good decisions. He just cannot see at the moment that he has a problem of the seriousness that he actually does have so I am going to make the order for sole parental responsibility.

 

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Terry

 

Date:     20 August 2018

Posted in: Derek Legal Blog at 10 August 20

Transfer of Actions From the Federal Circuit Court to the Family Court

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DARWIN

 

DNC 242 of 2018

 

MS SAINES

Applicant

 

And

 

MR SAINES

Respondent

 

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is a property matter and the parties have so far filed a multitude of affidavits essentially focusing on the question of the value of a company, B Pty Ltd, and the associated entities.  C Pty Ltd, which is a trustee for the C Pty Ltd Trust, has four beneficiaries.  One of the beneficiaries, I think a 25 per cent beneficiary, though I have not seen the trust document and it may even be a discretionary trust, it is not clear to me at the moment.  It appears though that the husband is, or ma5y be, a 25 per cent beneficial owner of the company B Pty Ltd, which operates on the outskirts of Darwin.
3. The wife has filed an affidavit from Mr D who asserts that the financial statements of B Pty Ltd misrepresent the true situation and various expenses have been included in the operating costs to produce a misleading profit and loss statement or statements, and hence misleading indications of taxable income.  He suggests that must have been done deliberately and is indicative of tax fraud by B Pty Ltd and indirectly by the husband, who is one of the four directors of the company.
4. Those are very serious allegations and it would I think be fair to say that the material or the basis for that assertion depends entirely upon Mr D’s opinion and interpretation of the creation of the financial statements.  I am not aware of any other evidence that points to evidence of fraud by the husband.  It appears to me that is going to be a complex matter to pursue, if it is pursued. 
5. The other issue of course is that in pointing to what he considers to be a misleading or faulty financial statement prepared by half of B Pty Ltd, Mr D has recreated the balance sheet and profit and loss statement for the company, for the 2019 year at least, which makes a significant difference in the income of the company. 
6. Mr Zufic, who is appearing for the wife, told me that in his view there would need to be a valuer appointed to value the company.  Mr Hibble agrees and he says that the Court ought to appoint a joint expert to do that, I agree.  That sounds like the sensible course to take and really it would be appropriate for the parties to negotiate and try and agree on the terms for the appointment of a single expert to value B Pty Ltd.
7. I consider that at this stage at least the valuation issues look to be complex or if not complex then highly contested, which is sometimes the same thing.  For example, there is in the balance sheet of the company an item for working rights which Mr D has put in the balance sheet at $2 million.  On inquiry with Mr Zufic about the basis for that it is far from clear to me that that item at that value is properly included in the balance sheet.  It may be, I just do not know. 
8. There is another complexity and it is a valuation complexity that may require a valuation of a lease.  I am told that the lease for the premises is due to expire in 2021.  It does not own ground itself, it is leasing ground from a Mr E.  Mr Hibble says that it was simply a two year lease for which B Pty Ltd paid $2 million which, if correct, would seem to reflect a form of royalty on the value of the material taken from the premises. 
9. There are, as can be seen, complex valuation issues in this case and, along with serious allegations of fraud, I am satisfied that this matter will take at least four days.  I think it is very likely to take five to seven days or even more, which is Mr Hibble’s estimate.  Pursuant to the protocol between this Court and the Family Court matters of five days or more ought to be transferred to the Family Court.  I am satisfied that this is an appropriate matter to transfer.  
10. There is an outstanding application that is the wife’s application to join B Pty Ltd as a party to the proceeding. I think that is a matter best left to Berman J, on the assumption that it is Berman J who deals with the matter, and I do not think I have to deal with that today. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young

 

Associate: 

 

Date: 29 June 2020

Posted in: Derek Legal Blog at 04 August 20

Subpoenas

Applicable Principles

4.            The principles that govern whether a subpoena ought to be set aside are well known.

5.            The principles were canvassed in Webb v Wheatly [2015] VSC 153 as follows:

‘The following principles govern the application to set aside the subpoena:

(a) It is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) However, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party;

(e) … There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;

…’ (citations omitted)

6.            In the Family Law jurisdiction, Cronin J in Dillon & Dillon [2012] FamCA 319 stated that:

‘[10]       The fact in issue in the property dispute is the entitlement of the respective parties to a division of whatever property either or both of them has having regard to the provisions of s 79 of the Act.  To test whether something would rationally affect the probability of a fact in issue requires consideration of the probative value of the material. In respect of material pursued under a subpoena, it must be asked whether that material would be reasonably expected to throw some light on the issue in the proceeding.’

7.            The principles relating to subpoenas against non-parties, and the relevance of documents, were also discussed by Cronin J in Papadopoulos v Papadopoulos (No.2) [2007] FamCA 1683. Cronin J reviewed a number of authorities which indicated that caution should be exercised in respect of any order for non-party provision of documents, however stated that it was appropriate to make an order if the production of documents would assist in the timely resolution of issues. Cronin J concluded by stating:

‘[50] Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers.  It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.’

Posted in: Derek Legal Blog at 28 July 20

Sole Use & Occupation of a Matrimonial Home

Who is to have sole use and occupation of the former matrimonial home?

The Law

59.                      The court has the power to make orders pertaining to the sole use and occupation of the matrimonial home pursuant to s 114(1) of the Family Law Act, which provides as follows:

(1)         In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(b)  an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

60.                      In Davis and Davis (1976) FLC 90-062 at [75,309], the Full Court set out a non-exhaustive list of factors the court should take into account when deciding whether or not to exercise discretion to make such an order:

The criteria for the exercise of the power under sec 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

61.                      In Plowman v Plowman (1970) 16 FLR 447, Carmichael J further illuminated the factors the court is to consider and said as follows:

Among factors which will determine how the discretion is to be exercised are: (a) Can the wife be adequately housed elsewhere? (b) Is the money available, either from the wife's own resources and/or her husband's, to provide that housing? (c) For whom, husband or wife, is it less convenient to have to live away from the matrimonial home? (d) What are the interests of any children of the parties and what would be in their paramount interest? (e) What are the relevant proprietary rights of the spouses? (f) Would a non-molestation order be an appropriate alternative to an order for expulsion? (g) Is there possible use of improper methods either by way of intimidation or fraudulent condonation to prevent the wife from pursuing her rights, if the spouses continue to reside in the one home? (h) The possible injustice of forcing a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause.

62.                      In Jolly and Jolly  (1978) FLC 90-458, Connor J commented [at 77,334]:

It is to be noted that the Full Court did not attempt to summarise all the considerations but merely some of them. Nor did the court decide that more emphasis should be placed on one than another. What has to be considered is all the circumstances listed above together with other matters which might be relevant in a particular case. In a particular case perhaps more emphasis should be placed on one consideration than another or all the others in deciding what is proper in the circumstances of the case remembering, of course, that the decision should not depend merely on ‘the balance of convenience issues’.

Posted in: Derek Legal Blog at 21 July 20

Ex Parte Applications

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

 

MLC 3410 of 2020

 

MR TADROS

Applicant

 

and

 

MS TADROS

First respondent

Company A

Second respondent

Company B

Third respondent

Company C

Fourth respondent

Company D

Fifth respondent

 

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

2. This is an application for review of a Registrar’s decision in relation to an urgent application filed by the applicant husband. In addition, the applicant seeks leave to proceed on an ex parte basis in relation to certain orders sought in his application.
3. In particular, in his application filed on 3 April 2020, the husband sought, among other things, interim orders for:

a) the joinder of four named superannuation and/or insurance companies;
b) all time be abridged to enable this application to be listed for an urgent ex parte hearing;
c) for orders 1 to 11 of the orders sought in his application be made on an ex parte basis; although in submissions today, counsel for the applicant indicated that, in fact, it was orders 1 to 12 that were being sought to be made on an ex parte basis; and
d) an order injuncting the respondent wife from dealing with or cancelling any of the life insurance policies referred to in the husband’s affidavit.

4. In support of his application, the applicant filed an affidavit affirmed on 2 April 2020, in which he deposed to the following:

a) his relationship with the respondent;
b) the parties separated in mid-2018;
c) there were three children of the relationship;
d) the parties ran a business together;
e) the parties took out large loans in 2000 and were advised to take out various insurance policies;
f) the parties confronted financial difficulties and ultimately the business was sold;
g) the parties purchased a family home in Town E in 2012 in the respondent wife’s sole name;
h) throughout this period, the parties continued making payments in respect of various insurance policies, including the life insurance policies the subject of these proceedings;
i) in 2008, the respondent wife was diagnosed with stage 4 breast cancer; and
j) the premiums of the various insurance policies have continued to be met by the husband for his business activities, both during the relationship and post-separation.

5. The husband’s affidavit also stated that the respondent’s wife’s condition is such that she is not likely to recover, and continues to receive regular treatment.  The current situation with COVID-19 is such that the wife’s health condition is more uncertain. 
6. He also stated that although he has sought to resolve property matters with his wife outside of the litigation process, the wife has not engaged meaningfully in these negotiations.  His evidence was that the wife has threatened to cancel various life insurance policies held for her benefit, and then after further discussion she indicated that she would not do so.
7. The husband also gave evidence that the wife put their holiday house at Town F up for sale in 2018 without consulting the husband. He stated that property was also in her sole name and that, as a result of decisions made to protect the matrimonial assets during the relationship, most of the parties’ assets are in the wife’s name.
8. The husband assesses the non-separation asset pool to be worth in the vicinity of $1,000,000, with liabilities of just over $200,000.
9. In addition, he believes that the wife has retained a further sum, being the net proceeds of sale of the Town F property, and is likely to receive a further sum by way of an inheritance following the death of her late father in 2018.

Urgency

10. The husband says that this matter ought to be dealt with urgently and on an ex parte basis because he is concerned that if the wife is given notice of his application, she may carry out the threat made and cancel her insurance policies.  He says that the consequence of that, even if done in a fit of pique, will be irreversible.
11. It was submitted that if the policies are deemed to be property for the purposes of the Family Law Act 1975 (Cth), they constitute a significant part of the asset pool.  Accordingly, that would significantly affect the outcome of these proceedings, for which the husband could not adequately be compensated.
12. Having regard to the factors in Myers & Myers [2011] FMCAfam 1104 (“Myers”), as noted with approval in Vibbard & Garcia [2012] FamCAFC 114, the applicant has satisfied me that absent an urgent listing, the applicant would be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the court’s attention in the normal course.  He has also satisfied me of the other requirements in Myers.  For those reasons, I propose exercising my discretion to list this matter on an urgent basis. 

Ex parte

13. I turn then to the question of whether orders should be made on an ex parte basis.  As stated earlier in these reasons, the applicant argued that the court, in exercising its discretion to list the matter for an urgent hearing, should also consider making the orders sought on an ex parte basis.
14. As stated by the Full Court of the Family Court in Sieling & Sieling (1979) FLC 90-6276-7 at [78254]:

Whenever a court acts ex parte it is departing from one of the primary rules of natural justice, that each part should be given an opportunity to present his or her case to the Court.  For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.

15. In this case, it is said that it is necessary to deal with this matter urgently and on an ex parte basis in order to preserve property of the parties. 
16. In light of:

a) the wife’s threat to cancel the insurance policies; and
b) the fact that if they are indeed to be property for the purposes of these proceedings, any such cancellation would be irreversible and would significantly affect the asset pool in this matter;

I am satisfied that it is appropriate in these circumstances for this matter to be dealt with on an urgent basis and for the orders sought to be made on an ex parte basis.

17. Moreover, I am satisfied that it is appropriate for the orders to be made on an ex parte basis, having regard to the Family Law Rules 2004 (Cth).
18. In submissions on behalf of the applicant, reference was made to rule  5.12 of the Family Law Rules 2004 (Cth) in relation to the applications without notice.  Similar provisions are found in the Federal Circuit Court Rules 2001 (Cth) at rule 5.01 and 5.03.
19. Relevantly, the applicant is required to establish the matters set out in rule 5.03 of the Federal Circuit Court Rules 2001 (Cth).
20. In this case, having regard to the affidavit material filed on behalf of the applicant, I am satisfied that:

a) there have been no previous proceedings between these parties;
b) there are no current proceedings between these parties;
c) there are no current orders in force between these parties; and
d) whilst there have been some attempt to negotiate property matters generally, no steps have been taken to advise the respondent of the applicant’s intention to seek these orders for the reason that the applicant is concerned that to do so might trigger the respondent to cancel the insurance policies and therefore render any claim by the applicant in relation to those policies nugatory.

21. I have already discussed the nature and the immediacy of the damage or harm which may result if the proposed orders are not made.  For similar reasons, it was submitted on behalf of the applicant that an abridgment of time alone without ex parte orders would not be more appropriate.  I accept those submissions.
22. Simply having the matter listed with a shorter period of time does not deal with the risk that by giving notice to the respondent wife that she may not then take action which is irreversible and cancel the insurance policies.
23. Importantly, the applicant has indicated a preparedness to give an undertaking as to damages in relation to the insurance companies that he seeks to have joined to these proceedings.  Given the size of the asset pool, there is some money at his disposal to meet any award of damages made in relation to those matters, and in reliance upon that undertaking.
24. This matter was initially listed by the registry for a first return on 6 June 2019.  In circumstances where ex parte orders are made, it is my view that this matter ought to come back before me earlier than that date.
25. I therefore make orders 1 to 12 of the interim orders sought in the applicant’s application filed 3 April 2020.

Posted in: Derek Legal Blog at 08 July 20

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