ACKLAND & ACKLAND

[2015] FCCA 2035

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACKLAND & ACKLAND [2015] FCCA 2035

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – one child aged fifteen years – Child Dispute Conference – whether Conference should be child inclusive due to daughter’s strained relationship with her father.

FAMILY LAW – Property – injunction – exclusive occupation – exclusive occupation of former matrimonial home – husband to have exclusive occupation of another property – orders by consent.

FAMILY LAW – Maintenance – spousal maintenance – where husband consents to pay spousal maintenance for six months.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 68L, 74, 114

Federal Circuit Court Rules 2001, r.15.09

Cases cited:
M & DB [2006] FamCA 1380; (2006) FLC 93-293; (2007) 36 Fam LR 454
Sieling & Sieling (1979) 4 Fam LR 713; FLC 90-627
Waugh & Waugh [2000] FamCA 1183; (2000) 27 Fam LR 63; FLC 93-052
Yunghanns & Yunghanns [1999] FamCA 64; (1999) 24 Fam LR 400; FLC 92-836

Applicant: MR ACKLAND

Respondent: MS ACKLAND

File Number: SYC 5391 of 2014

Judgment of: Judge Scarlett

Hearing date: 16 December 2014

Date of Last Submission: 16 December 2014

Delivered at: Sydney

Delivered on: 17 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Blackah

Solicitors for the Applicant: Caroline Chung & Associates

Solicitor for the Respondent: Mr Jurd

Solicitors for the Respondent: Peter Jurd Lawyer

ORDERS

UNTIL FURTHER ORDER

1. The Applicant husband and the Respondent wife are to have equal shared parental responsibility for the child [X] born [omitted] 1999.

2. The child [X] is to live with the Respondent wife.

3. The child [X] is to spend time with the Applicant according to her wishes.

4. In accordance with the provisions of section 11F of the Family Law Act 1975 the Applicant and the Respondent and the child [X] are to attend a Child Inclusive Child Dispute Conference with a Family Consultant at a time and on a day specified by the Director of Child Dispute Services and in accordance with section 11C of the said Act the Conference is to be reportable.

5. The Respondent wife is restrained by injunction from interfering with the day to day operation of the company [A] PTY LTD and must further do all things necessary to facilitate the Applicant conducting the day to day operation of the said company.

6. The Applicant is to provide to the Respondent:

   (a)Copies of the bank statements of the company [A] PTY LTD on a monthly basis on or before the last business day of the month; and

   (b)Copies of all BAS statements as lodged within fourteen (14) days of lodgement.

7. BY CONSENT The Respondent is to have the sole use and occupation of the former matrimonial home situate and known as 1 Property W in the State of New South Wales and the Applicant is restrained by injunction from entering the said former matrimonial home without the written consent of the Respondent first had and obtained.

8. The Respondent is to pay all council rates, water rates and other outgoings on the former matrimonial home whilst she continues to reside there.

9. BY CONSENT The Applicant husband is to have the sole use and occupation of the property at Property A in the State of New South Wales and the Respondent is restrained by injunction from entering the said property without the written consent of the Applicant first had and obtained.

10. The Applicant is to pay all council rates, water rates and other outgoings on the said property at Property A whilst he continues to reside there.

11. BY CONSENT the Applicant and the Respondent are restrained from encumbering or borrowing against the security of the said properties at 1 Property W and Property A.

12. BY CONSENT the Applicant is to pay to the Respondent by way of spousal maintenance the sum of $250.00 per week for a period of six (6) months from the date of these Orders the first payment to be made within seven (7) days and weekly thereafter.

13. BY CONSENT within fourteen (14) days from the date of these Orders the Applicant and the Respondent must do all such acts and things as may be necessary to appoint an accountant as agreed between them but failing agreement an accountant is to be appointed by the President of the Institute of Chartered Accountants of Australia or his or her nominee to advise the parties in relation to the taxation implications of the Directors’ loans presently existing in the accounts of the said company [A] PTY LTD and to prepare the necessary tax returns to enable any liability to crystallize.

14. The Application is adjourned to Monday 14 September 2015 for further mention at 10:00 am.

15. The Application is adjourned to 10am on Monday 30 November 2015 for callover.

IT IS NOTED that publication of this judgment under the pseudonym Ackland & Ackland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5391 of 2014

MR ACKLAND

Applicant

And

MS ACKLAND

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the husband for property and parenting orders. Some of the orders sought are opposed by the Respondent wife. An interim hearing took place on 16 December 2014.

Orders Sought

1. Initially, the husband only sought property orders in his Application filed on 29 August 2014. It was not until the wife filed a Response on 17 November 2014 in which she sought parenting orders relating to the parties’ daughter [X], born on [omitted] 1999 and now aged 15, that the husband sought parenting orders, which he did in a Reply filed on 9 December.  

Interim Parenting Orders

1. The husband seeks orders that the parties should use their best endeavours to ensure that [X] should attend upon a family therapist and that the parties should share the cost of family therapy equally between them.

2. The wife seeks Orders that:

   a)the parties should have equal shared parental responsibility for [X];

   b)the child should live with her; and

   c)the child should spend time with the husband according to her wishes.

Property orders

1. The husband seeks interim property orders that:

   a)the wife should transfer her shareholding in the company [A] Pty Ltd to him within 14 days;

   b)at the same time, the wife should resign as a Director of the company;

   c)the wife should be restrained from doing a number of acts involving the running of the company or holding herself out as having any authority to undertake any action on behalf of the company;

   d)within 14 days the wife should do all things and sign all documents to allow the husband to run the company unfettered by her actions;

   e)the husband should provide ongoing financial information, including copies of BAS statements, to the wife each month;

   f)both parties are to be restrained from encumbering or borrowing against the security of the property at 1 Property W or Property A;

   g)the husband is to pay to the wife spousal maintenance of $750.00 per week for a period of six months;

   h)the wife is to have exclusive occupation of the property at 1 Property W subject to her being responsible for payment of all outgoings on the property;

   i)the husband is to have exclusive occupation of the property at Property A subject to his being responsible for payment of all outgoings on the property; and

   j)within 14 days the parties should jointly appoint an accountant to advise them in respect of the taxation implications of the Directors’ loans in the company’s accounts and to prepare the necessary tax returns.

2. The wife seeks interim orders that:

   a)she should have exclusive occupation of the property at 1 Property W;

   b)the husband should have exclusive occupation of the property at Property A and an injunction issue to restrain the wife from entering upon those premises;

   c)that the wife facilitate the appointment of an accountant jointly appointed by the parties to advise on the taxation implications of any Directors’ loans; and

   d)the wife is to be restrained from interfering with the day to day operation of the company.

Background

1. A helpful chronology was prepared by the husband’s counsel, Mr Blackah, in his Case Outline Document, and it has been used to set out the relevant background facts in these reasons for decision.

2. The husband was born on [omitted] 1964. He is now 51 years of age.

3. The wife was born on [omitted] 1965. She is therefore 50 years of age.

4. The husband purchased a half interest in a property at 1 Property W jointly with his sister on 1 August 1986.

5. The parties commenced to live together in about October 1988.

6. The parties moved into the property at 1 Property W in March 1989.

7. They were married on [date omitted] 1991.

8. The parties’ son [Y] was born on [omitted] 1992. He is an adult, now 23 years of age.

9. The company [A] Pty Ltd was formed on 19 February 1993.

10. The parties purchased the property at Property A on 15 December 1998 (according to the wife[1]) or 22 January 1999 (according to the husband[2] ).

    [1] Affidavit of Ms Ackland..11.2014 at paragraph [22]

    [2] Affidavit of Mr Ackland 28.8.2014 at [14]; 8.12.2014 at [14]

11. The parties’ daughter [X] was born on [date omitted] 1999.

12. On 6 April 2007 (according to the wife[3]) or 6 April 2008 (according to the husband[4]) the husband was seriously injured in a motorcycle accident. He later received a compensation payment of about $300,000.00.

    [3] Affidavit of Ms Ackland 17.11.2014 at [34]

    [4] Affidavit of Mr Ackland 28.8.2014 at [25]

13. The parties purchased an adjoining property at 2 Property W in June 2008.

14. The parties separated on 9 August 2010.

15. The husband formed a relationship with another woman at about this time.

16. In January 2011 the parties sold the property at 2 Property W for approximately $580,000.00.

17. The parties were divorced on 17 February 2014.

Evidence and Submissions

1. The husband relied on his Financial Statement and his affidavits of 28 August and 8 December 2014.

2. The wife relied on her Financial Statement and her affidavit of 17 November 2014.

3. Counsel for the husband submitted that the Court would be concerned at the potential for the parties’ 15 year old daughter to lose her relationship with her father. The child lives with her mother and elder brother, and her relationship with her father has become strained as a result of her finding out that her father had engaged in a relationship with the mother of one of her school friends.

4. It is submitted that, due to the unsatisfactory state of the relationship, therapeutic intervention is indicated, commencing with a Child Inclusive Child Dispute Conference and perhaps progressing to the child attending family therapy. The suggested practitioners are Ms A or Dr B.

5. In respect to the property issues it was further submitted that due to the high conflict and poor communication between the parties, the husband should be the one to control the company, which effectively consists of the husband himself, the parties’ adult son [Y] and some contractors. The husband has also raised some queries about the wife’s dealings with the company’s finances and accounting practices.

6. The husband would agree to provide information to the wife about his ongoing dealings with the company. He also proposes to pay the wife an amount of $750.00 per week by way of spousal maintenance. He has suggested a period of six months on the basis that the wife should be able to obtain other employment within that time, as she is a qualified [occupation omitted].

7. Mr Jurd, solicitor for the wife, submitted that the Court should not make orders 1 to 5 inclusive in the husband’s Application, as they are really final orders. However, the wife would consent to an order restraining her from interfering with the day to day operation of the company as set out in her Case Outline.

8. Mr Jurd referred in his submissions to M & DB[5], in support of the proposition that the Court has a discretion to grant an injunction for the preservation of property after the consideration of certain factors to determine a just and convenient result. He submitted that the Court must be satisfied that there is a risk of disposal of the property or diminution in the value of the property about which an order may ultimately be made (Waugh & Waugh[6]).

   [5] [2006] FamCA 1380; (2006) FLC 93-293; (2007) 36 Fam LR 454

   [6] [2000] FamCA 1183; (2000) 27 Fam LR 63; FLC 93-052

9. Further, Mr Jurd submitted that the Court must consider where the balance of convenience lies (Yunghanns & Yunghanns[7]). Again, citing Sieling & Sieling[8], the Court should go no further than is necessary to prevent either the abuse alleged or the frustration of the court process.

   [7] [1999] Fam CA 64; (1999) 24 Fam LR 400; FLC 92-836

   [8] (1979) 4 Fam LR 713; FLC 90-627

Applications for Parenting Orders

1. In any application for parenting orders, whether final orders or interim orders (i.e. orders until further order), the Court must consider the matters in Part VII of the Family Law Act 1975 (Cth), including:

   a)section 60B, that sets out the objects and principles of Part VII;

   b)section 60CA, which provides that the best interests of the child must be regarded as the paramount consideration;

   c)section 60CC, which shows how a court determines what is in a child’s best interests;

   d)section 61DA, which contains the presumption in s.61DA(1) that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)section 65DAA, which provides that if the Court makes an order providing for equal shared parental responsibility the Court must then consider whether it is both in the child’s best interests and reasonably practicable for an order to be made that the parents should have equal time or, failing that, substantial and significant time with the child.

2. All of those matters have been considered, so far as they are relevant.

Parental Responsibility

1. The parties have a poor level of communication between them, but there are no allegations of abuse or family violence that would preclude the Court from making an order that the parties should have equal shared parental responsibility for their daughter, [X]. Subsection 61DA(3) provides that where the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.

2. The mother seeks an order that the parties should have equal shared parental responsibility and I consider it to be appropriate.

3. It is to be hoped that the rift between father and daughter is only temporary and that the relationship between the parents may improve once the litigation has resolved. I propose to make an order for equal shared parental responsibility, noting that section 61DB provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.

Section 65DAA of the Family Law Act

1. I am not satisfied that it is in the best interests of the child to make an order either for equal time with each parent, or substantial and significant time with her father at this stage. The child is living with the mother. There is a rift between father and daughter which would preclude any such order.

Best Interests of the Child

1. Clearly, the best interests of the child must be the paramount consideration. There is evidence that [X] is estranged from her father at present, but there is no independent evidence of the child’s views.

2. There is no evidence pointing to a risk of physical or psychological harm to the child from being subjected to, or exposed to, abuse neglect or family violence. It would appear to be to [X]’s benefit to have a meaningful relationship with her father as well as with her mother.

3. I am not prepared to make an order that the child should engage in family therapy at this stage. I am of the view, however, that a child Inclusive Child Dispute Conference under the provisions of s.11F of the Family Law Act should take place. The Conference will be reportable under the provisions of s.11C of the Act. Upon receipt of the Child Dispute Conference Memorandum to the Court, I will give consideration to whether or not it is appropriate to make an order under s.68L of the Act appointing an Independent Children’s Lawyer to represent the child’s interests.

4. I propose to order, in addition, that until further order the child [X] should live with her mother and spend such time with her father as she wishes. I note that she is now aged 15 years and 7 months.

Interim Property Orders

1. I am not prepared to make interim property orders as set out in paragraphs 1 to 4 of the Schedule of Interim Orders forming part of the husband’s Application for Interim Orders. Such orders would require the wife to:

   a)transfer her shareholding in the company to the husband;

   b)resign as a director of the company;

   c)take no part in the running of the company; or

   d)surrender to the husband all credit cards, bank accounts and all other property of the company except the Holden Commodore which she uses.

2. As Mr Jurd submitted for the wife, these are final orders rather than interim orders.

3. I am of the view, however, that the wife should be restrained from interfering with the day to day operations of the company. It is the husband who actually performs the operational work of the company, along with the parties’ adult son and various contractors, and he would be likely to be hindered in this regard if the wife were to continue to involve herself in the day to day operations of the company. The communication between the parties is poor and there is a degree of conflict between them I note that Mr Jurd told the Court that his client would agree to such an order.

4. I have been informed that the parties would consent to Orders 6, 7, 9 and 10 of the schedule of Interim Orders attached to the Interim Application. Those orders would provide that:

   a)the parties would be restrained from borrowing against the security of 1 Property W;

   b)the husband would pay the wife the sum of $750.00 per week by way of spousal maintenance for a period of six months;

   c)the husband should have exclusive occupation of the property at Property A; and

   d)the parties would jointly appoint an accountant to advise them in relation to the taxation implications of the Directors’ loans and to prepare the necessary tax returns.

5. I propose to make those Orders by consent.

6. I am also informed that the parties will consent to interim orders 2 and 3 set out in the wife’s Response. Those proposed orders provide that the Respondent wife is to have the sole use and occupation of the former matrimonial home (1 Property W) and the Applicant husband is to be restrained and an injunction issued restraining the him from entering the former matrimonial home except with the written consent of the Respondent.

7. I propose to make those Orders by consent.

The future progress of the matter

1. The parties will attend a Child Inclusive Child Dispute Conference with their daughter [X]. The proceedings will then be mentioned on a suitable date in September to consider whether an Independent Children’s Lawyer should be appointed. Consideration can then be given as to whether a Family Report should be ordered under s.62G of the Family Law Act or whether it is more appropriate for a Court Expert to be appointed under Rule 15.09.

2. The matter will be placed in a call-over on Monday 30 November for allocation of final hearing dates.            

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 17 August 2015