Abad-Booton and Abad-Booton (No. 2)

[2007] FamCA 856

FAMILY COURT OF AUSTRALIA

ABAD-BOOTON & ABAD-BOOTON (NO. 2) [2007] FamCA 856

FAMILY LAW – financial – spousal maintenance – urgent interim.
FAMILY LAW – children – interim parenting

Family Law Act 1975 (Cth)

Goode v Goode [2006] FLC 93-286

HUSBAND: MR ABAD-BOOTON

WIFE: MRS ABAD-BOOTON

FILE NUMBER: MLC 6879 of 2007

DATE DELIVERED: 6 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 August 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr. C. Arnold

SOLICITOR FOR THE HUSBAND: Hall & Wilcox

COUNSEL FOR THE WIFE: Ms Tulloch

SOLICITOR FOR THE WIFE: Hughes Watson Marks Kennedy

Orders

1. That paragraph (6) of the orders made on 5 July, 2007 be discharged.

1. That until further order the parents have parental responsibility for the children S, born … December, 2002 and H, born … June, 2004 (“the children”) as provided in s.61C of the Family Law Act 1975.

1. That until further order the children live with the wife.

1. That until further order the husband spend time with the children as follows:

   (a)from 1:00 pm. until 4:00 pm. on each Monday;

   (b)from 1:00 pm. until 4:00 pm. on each Friday;  and

   (c)at such other times as are agreed between the parties.

IT IS FURTHER ORDERED BY CONSENT

1. That until further order all contact changeovers take place at W Community Centre, and the parties each forthwith do all acts and things and sign all documents necessary to comply with the intake procedures for W Community Centre.

1. That the parties and children attend upon a psychologist or counsellor agreed between their respective solicitors for the purpose of the preparation of a welfare report and the cost of the report be paid at first instance by the husband, with the ultimate question of payment to be determined by the trial judge. 

IT IS FURTHER ORDERED

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children 2004 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

1. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

1. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

1. That after the appointment of the independent children’s lawyer and until further order the husband undertake such random drug screens as are requested by the independent children’s lawyer.

1. That until further order the husband be and is hereby restrained from consuming alcohol or illicit drugs during a period of 24 hours prior to and during all periods of time he spends with the children.

1. That until further order and by way of urgent spousal maintenance the husband pay to the wife the sum of $300 per week, such payments to be made by 4:00 pm. on each Wednesday into a bank account to be nominated by the wife and to commence on 8 August, 2007.

1. That the further hearing of the wife’s application for interim spousal maintenance be adjourned to 10:00 am. on 11 September, 2007, and the following orders apply to the application for spousal maintenance :

   (a)the parties each file and serve any updated affidavits no later than 4:00 pm. on 3 September, 2007;

   (b)in the event the matter settles or cannot proceed for any reason, the parties’ solicitors are to immediately advise the assistant to the senior registrar;

   (c)that the parties attend a telephone link with the senior registrar on 4 September, 2007 at 10:00 am. to confirm their compliance with the preceding sub-paragraph;

   (d)that there be liberty to the parties to list the matter for mention before the senior registrar on 24 hours notice;  and

   (e)that each of the parties file and serve an outline of case document in bullet point form no later than 4:00 pm. on 7 September, 2007.

1. That on or before 4:00 pm. on 24 August, 2007 the husband provide a list of, and produce for inspection by the wife, all documents necessary for him to make full financial disclosure including but not limited to :

   (a)personal tax returns for the last five years;

   (b)personal credit card statements for the last five years;

   (c)personal bank accounts and mortgage statements for the last five years;

   (d)tax returns and financial statements for any company owned or controlled by the husband;

   (e)tax returns, financial statements and trust deeds for any trust in which the husband has any interest;  and

   (f)all documents relating to any draw downs on the mortgage secured over the P property, the D property, and the T property. 

1. That the wife have leave to issue subpoena addressed to the following persons or entities, to be returnable at 9:30 am. on 6 September, 2007 :

   (a)the property manager in respect of the D property;

   (b)the property manager in respect of the P property;

   (c)Commonwealth Bank;

   (d)National Australia Bank;

   (e)Westpac Bank;

   (f)G.E. Finance;

   (g)Vic Roads;

   (h)B Pty. Ltd. payroll;

   (i)K restaurant payroll;  and

   (j)Victoria Police criminal records.

1. That the applications for interim orders contained in the application filed by the wife on 19 June, 2007 and the response filed by the husband on 20 July, 2007 be otherwise adjourned for hearing at 10:00 am. on 16 October, 2007. 

1. That the wife have leave to argue the question of the costs reserved by the Honourable Justice Cronin on 5 July, 2007 on the adjourned date.

1. That the parties attend a conciliation conference at 2:15 pm. on 29 October, 2007.

1. That in the event the welfare report referred to in paragraph (6) hereof has not been released by 12 October, 2007 the date of 16 October, 2007 be vacated and a later date fixed by the list registrar or her nominee. 

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That the preparation of these orders be expedited forthwith.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ABAD-BOOTON & ABAD-BOOTON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6879 of 2007

MR ABAD-BOOTON

Husband

And

MRS ABAD-BOOTON

Wife

REASONS FOR JUDGMENT

1. Before the court are competing interim applications in relation to financial and parenting orders, together with a number of other applications, including one for spousal maintenance.  There is an application for a Barro order which the wife does not press today;  it is her submission that that aspect needs to be adjourned to another date, when it would be pressed, after further evidence is adduced.

Background

1. The parties married in a civil ceremony in 2002 and a religious one in 2003.  In her material, the wife dates their separation from 14 March 2007.  They have two children:  S, born in December 2002, and H, born in March 2004, thus now aged three and four.  Each of the parties makes significant allegations against the other. 

1. The wife's case is that the husband has problems with drug and alcohol use and abuse;  she alleges that throughout the marriage she was subjected to physical and sexual abuse by him.  There is in force an intervention order made on 2 July 2007 naming the wife and children as the aggrieved family members and the husband as the respondent.  That order is to last until further order.  There is also evidence that the husband has been charged with an alleged assault on the wife;  those criminal proceedings are pending. 

1. The husband denies the wife's allegations in respect of his past behaviour and drug and alcohol abuse.

Children’s applications

1. The provisions in relation to children in the Family Law Act 1975 rest on twin pillars. The first is the importance of maintaining a meaningful relationship to the maximum extent possible with both parents; the second is the importance of protecting children against physical and psychological harm. At some stage the allegations of violence will be determined. The court has found on many occasions that subjecting a parent to abuse is itself a form of child abuse. Determination of the allegations of violence may be crucial to the final orders made.

1. The parties have agreed that they will obtain a family report from an independent psychologist or counsellor.  At first instance the husband will pay for that, with the ultimate question of responsibility for payment to be determined by the trial judge.  I was told the parties had agreed that, until further order, all contact changeovers would take place at W Community Centre, although as will become clear, one of the proposals of the husband now involves a return of the children to their kindergarten/child care, rather than W Community Centre.

1. The wife seeks orders that the husband spend time with the children for three hours in the early afternoon on Monday and Friday, with changeovers at W Community Centre.  Whilst she initially sought supervision in her application, it is now submitted that she appreciates that the shortage of supervised spaces would mean there would be a probable delay of at least three months before the father would be able to resume contact with his children.  Although she maintains she has concerns about his behaviour impacting adversely on the children, she submits that limiting his time with them limits the capacity of his behaviour to impact adversely on them and as it is important they maintain their relationship with their father, she is prepared to withdraw her request for supervision.    

1. The father seeks that he see the children once a week from 10 am on Monday (collecting them from the changeover service at W Community Centre) and returning them to kindergarten/child care on Tuesday morning.  He lives with his parents, who live close by.  On his behalf it is submitted that the wife cannot have bona fide concerns about his behaviour if she is prepared to agree to unsupervised contact twice a week, for three hours.  On his analysis there is no reason he should not have the children overnight, once a week.

1. Whilst findings at this stage cannot be made, as the material is contested and contradictory, I do not find anything inconsistent in the wife's position.  The Full Court has referred to the fact that limiting the periods of time a person spends with children can be a way of minimising perceived risk.  The proposal advanced by the wife would maximise the frequency of time with the children.  With children as young as three and four, it is often better for them to spend short but frequent periods with the non-resident parent rather than longer, less frequent periods.  It is hard for very young children to keep in their mind an image of a parent if they do not see him or her for close to a week at a time.  The orders will operate until the case returns for further hearing.

Legal principles

1. I am satisfied the orders proposed by the wife in relation to the children are likely to maximise their best interests.  I am mindful of the Full Court's decision in Goode v Goode [2006] FLC 93-286. I am also mindful of the fact (acknowledged by legislative provisions) that it can be premature to deal with issues of parental responsibility at this interim stage. I do not propose to make any order that changes the existing reality, which is that the parents have joint parental responsibility pursuant to s.61C(1). Until further order the children will live with the wife.

Financial applications

1. That brings me to the financial matters, which fall into a couple of categories.  As I understand it, the parties have now agreed to the provision of the documents sought by the wife in the minute of the proposed order advanced by her counsel.  Objection was taken to some extent to the application for the issue of subpoenas.  It was put that the wife could have filed subpoenas and, in any event, “they will find nothing”.  That is a matter for the wife and her advisors.  The costs will be borne by the wife unless a subsequent application for costs were to be successful.  On the evidence, I am satisfied the wife should have leave to issue the subpoenas sought.

Spousal maintenance

1. That brings me to the question of spousal maintenance.  As I said to counsel in the course of discussion, I deal with it on the basis of an urgent application for spousal maintenance.  Counsel for the husband properly conceded that they would not be disputing the wife’s need;  the wife's present income comes from Centrelink benefits.  The case thus depends on the evidence about the husband’s capacity to support the wife.  About the law I need only say that each of the parties to a marriage has an obligation to support the other to the extent the other is unable to support him or herself, and the other party has the capacity to do so.

1. The wife seeks $400 per week by way of spousal maintenance.  The husband's form 13 financial statement, filed on 20 July, deposes to an income of $600 per week from a business owned by his family’s group of companies.  He deposes to receiving rental income of $220 per week.  From the bar table his counsel has said that that income is earmarked for something else relating to mortgages.  He deposes in his financial statement to receiving assistance from a sister in relation to mortgages on two properties, the P property and the T property. 

1. The husband claims $54 per week by way of regular expenses.  No tax is shown;  whether he pays tax may depend on how his income is structured (for example, is it paid through a trust?), but I do take account of the potential for tax.  He deposes to weekly expenditure of $500.  He is living with his parents but deposes to spending $100 per week on food, $60 on fares and carparking, $40 on clothing and shoes, $200 on children's activities and $100 on personal entertainment and hobbies, that making up $500.  I have been told there is a recent child support assessment, which has not yet taken effect.  By the time the matter comes back, more may be known about that. 

1. On the evidence before me, and having regard to the requirement for courts to look to the income of parties to support each other rather than looking to the public purse, I am satisfied there should be an urgent interim order for $300 per week until the spousal maintenance application comes back to court on 11 September.  Three hundred dollars is presently available, on the husband’s own evidence, for his entertainment and that of the children, who are very young.  If his income is so modest, I find it more appropriate to support the children’s mother than spend half of it on what might be called recreational expenditure.

1. The balance of the financial application, and the children’s application, will be adjourned to 16 October.  If the family report is not available by 12 October, the date of 16 October will be vacated.  I will book the parties in now for a conciliation conference on 29 October;  if necessary, that date can be vacated or extended in the light of evidence available at the hearing on 16 October.

I certify  that the preceding
16 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.