Askari & Bassam
[2024] FedCFamC2F 1570
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Askari & Bassam [2024] FedCFamC2F 1570
File number(s): PAC 1905 of 2024 Judgment of: JUDGE NEWBRUN Date of judgment: 11 November 2024 Catchwords: FAMILY LAW – INTERIM PROPERTY – Sale of property – payment of mortgage – spousal maintenance – applications dismissed.
FAMILY LAW – INTERIM PARENTING – Best interests of children – orders made.
Cases cited: Stein & Stein [2000] FamCA 102; (2000) FLC 93-004 Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 29 October 2024 Place: Parramatta Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Collins Clare Solicitors Counsel for the Respondent: Mr Rosic Solicitor for the Respondent: Galluzzo Lawyers Solicitor for the Independent Children's Lawyer: Longton Legal ORDERS
PAC 1905 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ASKARI
Applicant
AND: MS BASSAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
11 NOVEMBER 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
Live with and term time
1.X born in 2012, Y born in 2015 and Z born in 2017 (“the children”), live with the mother.
2.The children spend time with the father each alternate week from after school (or 3.00 pm if not a school day) Thursday, to before school Tuesday (or 9.00 am if not a school day).
School holidays
3.Each school holiday period shall be defined as commencing at the conclusion of the last day of the school term, and concluding the day prior to the first day students are required to attend the following school term.
4.During Term 1, 2 and 3 school holiday periods, the children spend half of school holiday periods with each parent as agreed in writing, and failing agreement:
(a)In even years, with the father in the first half and the mother in the second half;
(b)In odd years, with the mother in the first half and the father in the second half.
5.During the Term 4 school holiday period, the children spend half of the school holiday period with each parent as agreed in writing, and failing agreement:
(a)In even years, with the father for the first half, and the mother for the second half;
(b)In odd years, with the mother in the first half and the father in the second half.
Special occasions
6.For Christmas:
(a)The children spend time with the father from 10.00 am Christmas Eve 24 December to 10.00 am Christmas Day 25 December.
(b)The children spend time with the mother from 10.00 am Christmas Day 25 December to 10.00 am Boxing Day 26 December.
7.For Orthodox Christmas:
(a)In even years the children spend time with the father from 2.00 pm Orthodox Christmas Eve to 7.00 pm Orthodox Christmas Day.
(b)In odd years the children spend time with the mother from 2.00 pm Orthodox Christmas Eve to 7.00 pm Orthodox Christmas Day.
8.For Catholic Easter:
(a)In even years the children spend time with the mother from 7.00 pm on Holy Thursday to 3.00 pm on Easter Saturday; and with the father from 3.00 pm on Easter Saturday to 9.00 am on Easter Monday.
(b)In odd years the children spend time with the father from 7.00pm on the day immediately preceding Good Friday to 3.00 pm on Easter Saturday; and with the mother from 3.00 pm on Easter Saturday to 9.00 am on Easter Monday.
9.For Orthodox Easter:
(a)In even years the children spend time with the Father from 7.00 pm on Orthodox Holy Thursday to 3.00 pm on Orthodox Easter Saturday; and with the mother from 3.00 pm on Orthodox Easter Saturday to 9.00 am on Orthodox Easter Monday;
(b)In odd years the children spend time with the Mother from 7.00pm on Orthodox Holy Thursday to 3.00 pm on Orthodox Easter Saturday; and with the father from 3.00 pm on Orthodox Easter Saturday to 9.00 am on Orthodox Easter Monday.
10.In the event that Orthodox Easter falls on the same weekend as Catholic Easter, then the children shall spend time with the parents in accordance with Order 9(b) above.
11.For the father’s birthday, the children spend time with the father between 3.00 pm to 7.00 pm if it is a school day and between 9.00 am to 3.00 pm if it is a non-school day.
12.For each of the children’s birthdays, the children will spend time with each parent as follows:
(a)If the birthday falls on a school day, with the parent whom they are not scheduled to be with for a period of 3 hours as agreed and failing agreement then from after school to 6.00 pm;
(b)If the birthday falls on a non-school day, with the parent whom they are not scheduled to be with for a period of 6 hours as agreed and failing agreement then from 9.00 am to 3.00 pm.
13.For Mother’s Day, if the children are not already spending time with the mother on Mother’s Day, the children will spend time with the mother on that day from 9.00 am to 7.00 pm.
14.For Father’s Day, if the children are not already spending time with the father on Father’s Day, the children will spend time with the father on that day from 9.00 am to 7.00 pm.
Changeovers
15.Where changeover does not occur at school, the parent commencing time with the children shall collect the children from the other parent’s residence, unless otherwise agreed in writing.
Schooling
16.Within 7 days the parents do all acts and things and sign all documents necessary to ensure X is enrolled at B School to commence Year 7 in 2025.
17.Within 7 days the father provide the parties copies of all correspondence to and from C School including copy of any application submitted for X to commence Year 7 in 2025.
18.In the event X is offered a place at C School before commencement of Term 3, 2025, the parents do all acts and things and sign all documents necessary to facilitate X’s attendance at C School.
19.In the event X is not offered a place at C School, she shall attend B School unless otherwise agreed in writing between the parents.
20.Neither parent shall submit any application to change Y and Z’s current school, without express written consent from the other parent.
Restraints
21.Both parents be restrained by way of injunction from:
(a)Denigrating the other parent, or members of the other parent’s family, or a person the other parent is in a close personal relationship with, within presence or earshot of the children, or permitting the children to remain in the presence of or earshot of any third party denigrating the other parent or members of the other parent’s family or a person the other parent is in a close personal relationship with;
(b)Discussing these or related proceedings with the children;
(c)Physically disciplining the children or permitting any third party to do so, including by forcefully physically striking objects in the vicinity of the children;
(d)Questioning the children about the other parent.
22.Pending further order, the mother be restrained from leaving the children in the sole care of Mr D.
General
23.Both parents be at liberty to attend extra-curricular activities the children are enrolled in and to attend daycare and school events parents are ordinarily invited to attend, including parent teacher interviews.
24.The parents are authorised, by this order, to obtain information about the children’s educational progress and other school related activities and receive copies of school reports, photographs, certificates and awards obtained by the children from the daycare and schools attended by the children at that parent’s expense.
25.Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health professional to provide both parents copies of any reports, information or documentation relevant to the children’s health.
26.Each parent is to inform the other as soon as practicable and within two hours of any serious illness, injury or accident suffered by the children or either of them whilst in their care and provide the other parent with details of any medical service provider or Health Care Practitioner on which the children or either of them have attended for treatment.
27.Each party shall keep the other informed of their current residential address, mobile telephone contact number and email address, and shall notify the other of any change within 48 hours.
Communication
28.The children have telephone or video calls as follows
(a)With the father when in the mother’s care each Wednesday, Friday and Sunday;
(b)With the mother when in the father’s care each Saturday and Monday;
(c)The parent with whom the children are not spending time is to place a call to X’s mobile telephone between 6.30 pm to 7.00 pm;
(d)In the event X’s phone is not answered, the parent making the call shall then call Y or Z’s devices;
(e)In the event both calls go unanswered, the parent in who’s care the children are in is to call the parent who is to have communication with the children to ensure that communication occurs at a minimum as set out in 28(a) and 28(b);
(f)The call shall continue with the children as long as the children remain engaged but shall not extend beyond 7.00 pm for children aged under 12 years or 8.00 pm for children aged 12 years or over;
(g)The parent in who’s care the children are in shall afford the children privacy during the call by not being present during calls (other than inadvertently, such as if the child or children are moving whilst on the phone and the other parent is not able to remove themselves whilst the child passes through).
29.Both parents shall facilitate the children having contact with the other parent as reasonably requested by the children within reasonable hours.
Passports
30.Within 7 days the children’s Passports be deposited with the Federal Circuit and Family Court of Australia, pending further order.
Procedural
31.The matter be listed for a full day FDR with the Court to facilitate the involvement of a Court Child Expert insofar as same is practicable.
Property
32.Subject to the above interim parenting orders, all outstanding interim applications are dismissed.
AND THE COURT NOTES THAT:
A.The Father shall meet the costs of any private school fees in relation to X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
Firstly, this is the determination of the parties’ interim parenting proposals. The father seeks an order that the children, being X born in 2012, aged 12 years, and Y born in 2015, aged 9 years, and Z born in 2017, aged 7 years, live with him and spend time with the mother. The mother seeks orders, inter alia, that the children remain living with her and spend five nights each fortnight with the father during school term times.
Secondly, this is the determination of the parties’ interim property proposals. The father seeks, inter alia, an order that a property at Suburb E, where the mother and three children now reside, be sold and an interim property distribution of $100,000 from the net proceeds of sale be paid to each of the parties, with the balance to be paid into a controlled monies account. The mother resists this proposed sale and seeks, inter alia, a spousal maintenance order in the sum of $1,074 per week.
The parties married in 2011 and separated in about November 2020.
On 23 January 2020 for the parties attended mediation and reach an agreement, inter alia, that the children live with the mother and spend time with the father each fortnight for five nights each fortnight.
The father rents a property at Suburb F. The father is engaged to be married to Ms H with whom he has been living together since mid-2023.
MATERIAL RELIED UPON
The Court has considered all of the documentary evidence relied upon by the parties. The Court does not propose to set out the entirety of that evidence.
The husband relied upon:
(a)Amended Initiating Application filed 27 May 2024;
(b)His affidavit filed 23 October 2024;
(c)Specific Issues Report of Dr J dated 22 October 2024;
(d)His Financial Statement filed 24 October 2024;
(e)Genuine Steps Certificate filed 19 April 2024;
(f)Notice of Risk filed 19 April 2024;
(g)Paragraphs 107 to 146 of his affidavit filed 2 July 2024;
(h)Case Outline filed 25 October 2024.
The wife relied upon:
(a)Amended Response filed 25 May 2024;
(b)Her affidavit filed 16 May 2024;
(c)Her Financial Statement filed 16 May 2024;
(d)Notice of Risk filed 16 May 2024;
(e)Her Financial Questionnaire filed 16 May 2024;
(f)Specific Issues Report of Dr J dated 22 October 2024;
(g)Case Outline filed 28 October 2024.
The Independent Children’s Lawyer relied upon:
(a)Affidavit of the mother/wife filed 16 May 2024;
(b)Affidavit of the father/husband filed 23 October 2024;
(c)Affidavit of Mr K filed 28 October 2024;
(d)Father’s Case Outline;
(e)Mother’s Case Outline;
(f)ICL’s Case Outline;
(g)Specific Issues Report of Dr J dated 22 October 2024.
The following documents became exhibits:
(a)Exhibit A: Husband’s tender bundle;
(b)Exhibit B: Pages 27 to 30, ICL tender bundle;
(c)Exhibit C: Family Report of Dr J dated 22 October 2024;
(d)Exhibit D: Wife’s tender bundle;
(e)Exhibit E: Husband’s balance sheet (not conceded by wife).
PROPERTY
Husband’s application for sale of Suburb E property
The husband alleges that he has recently suffered a decline in income. He seeks the sale of the property at Suburb E because he alleges that he can no longer afford to continue paying the mortgage and the mortgage is now in substantial default.
A letter from CBA to the father dated June 2024 refers to the home loan at about $1.044 million being in arrears of $14,220, with arrear days being over 100.
A default notice was sent by the bank’s solicitors to the father in July 2024 referring to the father as the borrower. The overdue amount was stated to be $18,400. Rectification date was stated to be in August 2024.
The husband alleges:
(a)In mid-2012 the husband’s parents purchased the property at G Street, Suburb L. This property had a house and business premises at the rear. The purchase price was $650,000.
(b)In early 2015 the husband and his father agreed that the latter would sell the Suburb L property to the parties (with the Court observing from (a) above that the husband’s parents had allegedly purchased this property). The valuation was prepared for the bank at $935,000 but the husband’s father agreed to defer payment of about $200,000 to assist the parties funding the purchase. The husband alleges that in effect his father only ever received $650,000 “of that amount”, with the balance to be paid back to him when the husband could.
(The Court observes that the settlement adjustment sheet, which refers to the husband’s purchase from his parents of the Suburb L property, shows a purchase price of $650,000, with cheque details including a cheque to ANZ for $501,402, and a cheque to the husband’s parents for $138,218).
(c)In September 2015 the husband entered into a written loan agreement with his father to regularise their financial relationship, as the husband already owed his father the balance of the business money and was about to enter into another significant transaction being the Suburb E property.
The principal sum owing under the agreement was stated to be $650,000 with a due date of September 2017. The husband did not repay this sum by the due date, however the husband’s father later received his one third share owing to him from the windup of N Pty Ltd (relating to the business), being $355,400. The balance of the amount owing by the husband to his father remains outstanding and is subject to the further accrual of interest.
(d)The husband’s father effectively loaned him, against the Suburb E property, an amount of $650,000. That money was used to purchase the husband’s interest in the property located at M 1 Street, Suburb E. The purchase price of that property, including both the husband’s father’s share and the husband share was $1,160,000. The husband’s father retained his interest, serviced his part of the loan, and later sold it to the husband’s sister, who lives on her side of the duplex which is the property registered as M 2 Street, Suburb E.
(e)Before constructing the duplex residence on the Suburb E property, the existing dwelling had to be demolished. The husband’s father, a tradesperson, funded about 70 per cent of the construction costs totalling about $1,112,692 and husband financed the remaining 30 per cent. After the project was completed, the parties retained M 1 Street and the husband’s father retained M 2 Street.
(f)The business was sold in late 2023 for $320,000 and the land was sold with it for $1,400,000.
(The Court observes that the settlement adjustment sheet, which refers to the husband’s sale of the Suburb L property, including the business, dated late 2023, shows the balance owing on the sale of the business of $307,814, and a sale price for the property of $1,400,000. The Payment Directions provide, inter alia:
·Loan payouts to CBA Business bank: $735,000 and $596,653;
·Vendor’s funds: $295,113).
(g)After the sale of the Suburb L property the husband had to carry a number of residual debts in his personal capacity including but not limited to tax debts, labour hire expenses (staffing) and the like.
(h)Since about the beginning of 2023/2024 financial year his business has been in decline and his personal income has been in large part supported by drawdown of equity and loans from his father.
(i)He states that the home loan payments to the CBA on the Suburb E property are about $965 per week. He states he was servicing the mortgage for as long as he could. It will increase to $1,581 per week in December 2024. He states that he is in default of the Suburb E mortgage. He states that he has sought two moratoria on the home loan repayments without success to the CBA.
(j)He states that his father is now calling on his debt pursuant to the written loan agreement. His father’s solicitors have written to him on 24 August 2023, inter alia, demanding immediate repayment of the principal loan of $650,000 plus unpaid interest in the sum of about $174,000, or else they will seek further instructions as to the commencement of legal proceedings.
(k)As to his financial statement filed 24 October 2024 he states:
(i)His total average weekly income is $5,212 from his work as a self-employed professional.
(ii)His weekly expenses are $6,007. Accordingly, the difference is some $795. In this context, in late December 2024 the weekly mortgage loan repayment will increase from $965 to $1,581 being an extra $616.
The wife alleges:
(a)The parties moved to the Suburb E property in early 2018.
(b)From separation the father has paid the mortgage and council rates at the Suburb E property.
(c)In late 2021 the father purchased a property at Suburb O.
(d)The Suburb E property home loan was not paid off with the proceeds of sale of the Suburb L property as originally intended by the father.
(e)She is aware that the mortgage interest rates on the Suburb E property will change from fixed to variable in late December 2024. The mother states she would like to retain the Suburb E property and she has enquired as to her borrowing capacity.
Discussion
The wife strenuously resists the sale of the Suburb E property where she and the children live; she contends that herself and the children will be effectively homeless if this property is now sold. She informed the Court that she would like the opportunity to buy out the husband’s interest in the property at a final property hearing; this was consistent with the wife’s property proposed orders in her Amended Response filed 27 May 2024 in which she seeks, inter alia, that the husband transfer to her his interest in the Suburb E property.
Considering the wife’s submissions in relation to the husband’s above historical allegations relating to financial matters, including the purchase and sale of the Suburb L property, the husband’s purchase of the Suburb E property, and the related complex and somewhat opaque alleged financial transactions between himself and his father, if not his parents, it can be anticipated that at a final property hearing a significant challenge and examination by the wife will be made in relation to these historical financial allegations. At this interim hearing there was no affidavit before the Court by the husband’s father or mother in relation to these historical financial allegations.
The wife submitted that the sum of about $355,000 paid by the husband to his father in about November 2023 occurred at a time when the husband was not paying the mortgage loan for the Suburb E property.
The wife submitted that it was unexplained why the purchase proceeds of M 2 Street, Suburb E, namely sums of $600,000 and $448,399, (with the Statement of Adjustment sheet at page 3 of the wife’s tender bundle showing the vendor being the husband and the purchasers being two persons, who appear to be the husband’s sister and her husband) were paid to the husband’s parents. The wife asked rhetorically whether these monies were being held on trust for the husband. In these circumstances, it was submitted by the wife that the Court cannot make a finding as to whether the husband has a capacity to meet the mortgage repayments for the Suburb E property.
The wife’s counsel also made submissions as to the husband’s alleged debt owed to his father being the subject of an alleged deed of loan dated 1 September 2015. It was submitted that it was not clear at all that the alleged debt owed by the husband to his father would ultimately be determined by the Court to be a debt or indeed a matrimonial debt, and in this regard there was presently no affidavit from the husband’s father.
There is force to these submissions.
In any event, in the absence of an affidavit from the husband’s father, it is not clear at all, inter alia, that the husband’s father is presently determined to commence legal proceedings against the husband in relation to his alleged debt, with the Court observing that the letter from the husband’s father’s solicitors demanding repayment of the debt is dated 24 August 2023, over one year ago, and no legal proceedings have been commenced by the father against the husband for repayment of that debt.
The wife’s counsel submits that the husband could now sell his Suburb O business premises to free up equity and thereby pay mortgage loan arrears and meet his ongoing mortgage obligations to the bank in respect to the Suburb E property. However, there is force to the submissions of the husband, inter alia, that selling commercial real estate may, in effect, prove to be a slow exercise, with the Court observing that the mortgagee bank have issued a default notice to the husband.
The wife’s counsel submits that, with a view to the husband presently paying off the mortgage arrears, $18,400 as at 9 July 2024, with additional weekly payments of $965 for 17 weeks since 9 July 2024, about $16,405, total about $34,805, and meeting mortgage repayments thereafter, the husband could readily:
(a)Sell his Motor Vehicle 1 valued at $96,000 less finance debt $91,394, net $4,606, but importantly reducing the husband’s weekly expenses relating to the finance debt of $250 and registration costs relating to that car (a figure less than $55 per week), together with removing the need to pay comprehensive insurance for that car of $141 per week; a total saving of in excess of $391 per week; and/or
(b)Sell his Motor Vehicle 2 valued at $16,000; and/or
(c)Sell his Motor Vehicle 3 valued at $20,000.
Whilst the husband may possibly be able to at least sell Motor Vehicles 2 and 3 and thereby pay off the mortgage loan arrears, it is not clear at this interim stage that thereafter he could afford to pay the ongoing mortgage loan repayments.
The husband submitted that on the material before the Court it was quite unlikely that the wife would have a capacity to buy out the husband’s interest in the Suburb E property. Nevertheless, and again, the wife informed the Court that she would like the opportunity to buy out the husband’s interest in the Suburb E property. Whilst the wife is presently only earning some $800 gross per week in part-time employment as a community support worker, as submitted by the husband, the wife does have professional qualifications and could possibly obtain work thus increasing her income.
It was submitted that the wife had recently not disputed a Notice to Admit facts, inter alia, relating to the following fact: “You are unable to refinance the current mortgage under your name.” The Court would treat that deemed admission as an admission that presently she has no such capacity. It may well transpire, depending on the Court’s final property determinations, including issues to be determined such as liabilities, addbacks, contributions and needs factors, that the wife does have some capacity to refinance the mortgage loan for the Suburb E property into her name.
In summary, the Court observes, in particular:
(a)As to whether the husband presently has a capacity to meet ongoing mortgage loan repayments in respect to the Suburb E property, the evidence in particular of the husband needs to be tested at a final property hearing; it is not clear at all to the Court at this interim stage that he does not have such a capacity;
(b)Whilst the husband may now be able to sell some of his cars to pay off the mortgage loan arrears for the Suburb E property, in light of the observations in (a) above, it may be futile to make such an order that he pay off such arrears. And in any event, it is not clear whether the husband could sell some of his cars, at the values for which he contends in his balance sheet, in a timely fashion. In this context, at this interim stage, and on the material available to the Court, it is not clear at all to the Court that the husband could presently sell his business premises at Suburb O in a timely fashion;
(c)Depending upon the Court’s ultimate determinations flowing from a final property hearing, it may be possible for the wife to buy out the husband’s interest in the property at Suburb E.
Taking into account the above discussions, it will not be proper, appropriate, or just, that the Suburb E property be ordered to be sold on an interim basis.
At a practical level, it may now be prudent for the parties to consider making an application to the Court for expedition of the property proceedings with a view to obtaining a final property hearing date as soon as possible, noting that the mortgagee bank for the property at Suburb E has issued a default notice. Unfortunately, at this point in time, this Court’s diary is fully committed for the months of January, February and March 2025. Obviously, this Court cannot predict the likely success or otherwise of such an application for expedition.
Wife’s application that the husband forthwith pay the mortgage arrears and make ongoing mortgage payments in respect of the Suburb E property
Taking into account the above discussions relating to the husband’s application for the sale of the Suburb E property, it will not be proper, appropriate, or just that the husband be so ordered to pay those arrears owing to the CBA, nor to be ordered to pay the mortgage repayments for that property on an ongoing basis.
Wife’s application for spousal maintenance
From Part B of the wife’s Financial Statement filed 16 May 2024, the wife’s total average weekly income is stated to be $1,274; however, from this amount the wife’s Family Tax Benefit and Single Parent Pension must be ignored, and child support should be disregarded because such child support should be allocated to the expenses of the children, not the expenses of the wife. These sums total $654. Thus, a revised total average weekly income is $1,274 less $654 which equals $620.
The wife’s stated total personal expenditure is stated to be $200 under Part B of her Financial Statement. However, it appears that the wife has mistakenly not taken into account her expenditure for the family set out under Part N, being a total sum of $1,606 average per week in total and $544 for herself.
As to the wife’s Part G expenses of $200, the wife’s figure of $150 per week for “rates, unit levies” does not sit comfortably with the wife’s Financial Questionnaire filed 16 May 2024 which only refers to the payment by her post separation of, inter alia, electricity and internet, the husband’s asserted figure of $45 for “rates, unit levies”, as well as his express affidavit evidence (affidavit filed 23 October 2024) at paragraph 72 that since the parties’ separation in December 2020 the wife has only met the Suburb E property’s electricity bills and internet, and thus will be disregarded.
Accordingly, the wife’s relevant expenses is $50 (Part G expenses less rates and levies) plus $544 (Part N expenses for herself), totalling $594.
The wife’s application is for interim spousal maintenance only. There is no application for interim child maintenance or child support departure orders before the Court. In these circumstances, expenses relating to the maintenance of the children are to be disregarded when assessing the wife’s expenditure. It is not permissible to conflate a claim for interim spousal maintenance with an application for child maintenance: Stein & Stein [2000] FamCA 102; (2000) FLC 93-004.
The wife’s relevant income is $620 per week and her relevant expenditure is $594 per week. Her income exceeds her expenditure.
Accordingly, taking into account the above discussions, the Court is not satisfied at this interim stage that the wife has a need for spousal maintenance, and her interim spousal maintenance application should be dismissed.
In case the Court is incorrect in determining that the wife does not presently have a need for spousal maintenance, then, in the circumstances, does the husband have a capacity to pay the wife spousal maintenance?
The Court refers to its determination above that the property at Suburb E should not be ordered to be sold at this interim stage. Again, inter alia, the court is unable to reliably assess at this interim stage, without the testing of evidence at a final property hearing, whether or not the husband has available assets to him other than as asserted by him in his present evidence adduced at this interim hearing.
The husband’s financial statement filed 24 October 2024 asserts total average weekly income of $5,212 with total personal expenditure each week being $6,007. Again, were the husband to sell his Motor Vehicle 1, he may free up some $391 per week. However, on the debit side, come late December 2024, the mortgage loan repayments for the property at Suburb E will increase by about $616 per week.
It might be said that the husband could sell Motor Vehicles 2 and 3, thus possibly freeing up some $36,000 in which to pay interim spousal maintenance. However, as discussed above, the Court has a real concern as to whether the above cars could be sold in a timely fashion at the values contended by the husband in his balance sheet; this concern of the Court would militate it presently making an order that interim spousal maintenance be now paid.
Accordingly, at this interim stage, it is not clear to the Court that the husband has a present capacity to meet the wife’s need for spousal maintenance, and the Court, assuming the wife has a need for spousal maintenance (which the Court has found she does not have such a need) would dismiss her spousal maintenance application on that basis.
The wife sought other interim orders which were not the subject of submissions at the interim hearing. The Court will not make those further orders sought at this interim stage.
Accordingly, in relation to the above interim property and spousal maintenance applications, the Court will order that all outstanding interim applications be dismissed.
PARENTING
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
These considerations will be considered together.
The father makes allegations in his affidavit filed 23 October 2024 that the mother’s boyfriend or partner Mr D poses a significant risk of harm to the children and makes allegations, inter alia, that he has assaulted at least one of the children.
The mother, for her part, alleges that in early 2024 the father reported Mr D to the police claiming that he slapped one of the children. She alleges the police took statements from herself and Mr D. She alleges that she took the child allegedly assaulted to the police for the purpose of making a statement at the request of the police. The mother alleges that these events were denied by the child and the police dropped the matter. The mother alleges her understanding that Mr D had thrown an object to the child from the swimming pool, and accidentally hit her. The mother alleges her belief that the children tell the father what he wants to hear because they are scared of him.
The ICL proposes orders that will minimise this alleged risk of Mr D harming the children.
In view of the Court, noting that there is a significant dispute between the parties in relation to this alleged risk of harm by Mr D towards the children, it will be in the best interests of the children to make the ICL’s proposed interim harm minimisation orders regarding Mr D, including an order that, without admissions, the mother be restrained from leaving the children in the sole care of Mr D (see ICL’s proposed Order 22), and a restraint upon the parties by way of injunction relating to denigration and physical discipline which would indirectly include Mr D. In the view of the Court such proposed interim orders will minimise any risk of Mr D potentially harming the children.
The mother alleges significant family violence perpetrated against her by the father during the relationship, which is denied by the father.
The parties separated in about November 2020, about four years ago. The mother makes no allegations of family violence perpetrated by the father against her post separation to date.
The ICL’s proposed restraints in her Minute of Order, applicable to both parties, together with her proposed orders relating to communication by the children with the parents, will assist in minimising conflict between the parties to which might otherwise be detrimental to the children.
At this interim stage, on the material before the Court, there is a significant suggestion that there is no significant risk of harm posed by the father to the children whilst they are in his care.
(2)(b) any views expressed by the child;
The Court takes into account the views of the children expressed to the Single Expert relating to spending equal time with each parent, whilst noting their respective ages.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Single Expert in this regard, whilst acknowledging that her evidence is untested.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The Court refers to the evidence of the Single Expert in this regard, whilst acknowledging that her evidence is untested.
One matter which the Single Expert discussed in her report was the parties’ inability to shield the children from their conflict including these proceedings. The children had expressed a desire for the parties to stop discussing the legal proceedings with them or in the presence.
The Single Expert referred to the father not being completely attuned to the children’s emotional positions and sensibilities. She referred to the children experiencing the father’s anger and adjusting their dealings with him accordingly. She referred to the children as disliking the father asking them about the mother.
Otherwise, the parents have such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children will benefit from the maintenance of their positive relationships with each parent. Should the children remain living primarily with the mother and spending five nights each fortnight during school term time with the father, together with holiday time and special occasions with him, there is a significant prospect that the children’s positive relationship with the father can be maintained. These views are consistent with the evidence of the Single Expert.
(2)(f) anything else that is relevant to the particular circumstances of the child.
Not applicable.
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim parenting orders:
Live with and term time
1.X born in 2012, Y born in 2015 and Z born in 2017 (“the children”), live with the mother.
2.The children spend time with the father each alternate week from after school (or 3.00 pm if not a school day) Thursday, to before school Tuesday (or 9.00 am if not a school day).
School holidays
3.Each school holiday period shall be defined as commencing at the conclusion of the last day of the school term, and concluding the day prior to the first day students are required to attend the following school term.
4.During Term 1, 2 and 3 school holiday periods, the children spend half of school holiday periods with each parent as agreed in writing, and failing agreement:
(a)In even years, with the father in the first half and the mother in the second half;
(b)In odd years, with the mother in the first half and the father in the second half.
5.During the Term 4 school holiday period, the children spend half of the school holiday period with each parent as agreed in writing, and failing agreement:
(a)In even years, with the father for the first half, and the mother for the second half;
(b)In odd years, with the mother in the first half and the father in the second half.
Special occasions
6.For Christmas (and the mother’s birthday):
(a)The children spend time with the father from 10.00 am Christmas Eve 24 December to 10.00 am Christmas Day 25 December.
(b)The children spend time with the mother from 10.00 am Christmas Day 25 December to 10.00 am Boxing Day 26 December.
7.For Orthodox Christmas:
(a)In even years the children spend time with the father from 2.00 pm Orthodox Christmas Eve to 7.00 pm Orthodox Christmas Day.
(b)In odd years the children spend time with the mother from 2.00 pm Orthodox Christmas Eve to 7.00 pm Orthodox Christmas Day.
8.For Catholic Easter:
(a)In even years the children spend time with the mother from 7.00 pm on Holy Thursday to 3.00 pm on Easter Saturday; and with the father from 3.00 pm on Easter Saturday to 9.00 am on Easter Monday.
(b)In odd years the children spend time with the father from 7.00pm on the day immediately preceding Good Friday to 3.00 pm on Easter Saturday; and with the mother from 3.00 pm on Easter Saturday to 9.00 am on Easter Monday.
9.For Orthodox Easter:
(a)In even years the children spend time with the Father from 7.00 pm on Orthodox Holy Thursday to 3.00 pm on Orthodox Easter Saturday; and with the mother from 3.00 pm on Orthodox Easter Saturday to 9.00 am on Orthodox Easter Monday;
(b)In odd years the children spend time with the Mother from 7.00pm on Orthodox Holy Thursday to 3.00 pm on Orthodox Easter Saturday; and with the father from 3.00 pm on Orthodox Easter Saturday to 9.00 am on Orthodox Easter Monday.
10.In the event that Orthodox Easter falls on the same weekend as Catholic Easter, then the children shall spend time with the parents in accordance with Order 9(b) above.
11.For the father’s birthday, the children spend time with the father between 3.00 pm to 7.00 pm if it is a school day and between 9.00 am to 3.00 pm if it is a non-school day.
12.For each of the children’s birthdays, the children will spend time with each parent as follows:
(a)If the birthday falls on a school day, with the parent whom they are not scheduled to be with for a period of 3 hours as agreed and failing agreement then from after school to 6.00 pm;
(b)If the birthday falls on a non-school day, with the parent whom they are not scheduled to be with for a period of 6 hours as agreed and failing agreement then from 9.00 am to 3.00 pm.
13.For Mother’s Day, if the children are not already spending time with the mother on Mother’s Day, the children will spend time with the mother on that day from 9.00 am to 7.00 pm.
14.For Father’s Day, if the children are not already spending time with the father on Father’s Day, the children will spend time with the father on that day from 9.00 am to 7.00 pm.
Changeovers
15.Where changeover does not occur at school, the parent commencing time with the children shall collect the children from the other parent’s residence, unless otherwise agreed in writing.
Schooling
16.Within 7 days the parents do all acts and things and sign all documents necessary to ensure X is enrolled at B School to commence Year 7 in 2025.
17.Within 7 days the father provide the parties copies of all correspondence to and from C School including copy of any application submitted for X to commence Year 7 in 2025.
18.In the event X is offered a place at C School before commencement of Term 3, 2025, the parents do all acts and things and sign all documents necessary to facilitate X’s attendance at C School.
19.In the event X is not offered a place at C School, she shall attend B School unless otherwise agreed in writing between the parents.
20.Neither parent shall submit any application to change Y and Z’s current school, without express written consent from the other parent.
Restraints
21.Both parents be restrained by way of injunction from:
(a)Denigrating the other parent, or members of the other parent’s family, or a person the other parent is in a close personal relationship with, within presence or earshot of the children, or permitting the children to remain in the presence of or earshot of any third party denigrating the other parent or members of the other parent’s family or a person the other parent is in a close personal relationship with;
(b)Discussing these or related proceedings with the children;
(c)Physically disciplining the children or permitting any third party to do so, including by forcefully physically striking objects in the vicinity of the children;
(d)Questioning the children about the other parent.
22.Pending further order, the mother be restrained from leaving the children in the sole care of Mr D.
General
23.Both parents be at liberty to attend extra-curricular activities the children are enrolled in and to attend daycare and school events parents are ordinarily invited to attend, including parent teacher interviews.
24.The parents are authorised, by this order, to obtain information about the children’s educational progress and other school related activities and receive copies of school reports, photographs, certificates and awards obtained by the children from the daycare and schools attended by the children at that parent’s expense.
25.Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health professional to provide both parents copies of any reports, information or documentation relevant to the children’s health.
26.Each parent is to inform the other as soon as practicable and within two hours of any serious illness, injury or accident suffered by the children or either of them whilst in their care and provide the other parent with details of any medical service provider or Health Care Practitioner on which the children or either of them have attended for treatment.
27.Each party shall keep the other informed of their current residential address, mobile telephone contact number and email address, and shall notify the other of any change within 48 hours.
Communication
28.The children have telephone or video calls as follows
(a)With the father when in the mother’s care each Wednesday, Friday and Sunday;
(b)With the mother when in the father’s care each Saturday and Monday;
(c)The parent with whom the children are not spending time is to place a call to X’s mobile telephone between 6.30 pm to 7.00 pm;
(d)In the event X’s phone is not answered, the parent making the call shall then call Y or Z’s devices;
(e)In the event both calls go unanswered, the parent in who’s care the children are in is to call the parent who is to have communication with the children to ensure that communication occurs at a minimum as set out in 28(a) and 28(b);
(f)The call shall continue with the children as long as the children remain engaged but shall not extend beyond 7.00 pm for children aged under 12 years or 8.00 pm for children aged 12 years or over;
(g)The parent in who’s care the children are in shall afford the children privacy during the call by not being present during calls (other than inadvertently, such as if the child or children are moving whilst on the phone and the other parent is not able to remove themselves whilst the child passes through).
29.Both parents shall facilitate the children having contact with the other parent as reasonably requested by the children within reasonable hours.
Passports
30.Within 7 days the children’s Passports be deposited with the Federal Circuit and Family Court of Australia, pending further order.
Procedural
31.The matter be listed for a full day FDR with the Court to facilitate the involvement of a Court Child Expert insofar as same is practicable.
Property
32.Subject to the above interim parenting orders, all outstanding interim applications are dismissed.
AND THE COURT NOTES THAT:
A.The Father shall meet the costs of any private school fees in relation to X.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 11 November 2024
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