ATWOOD & ATWOOD

[2015] FamCA 234

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD [2015] FamCA 234

FAMILY LAW – PROPERTY – Interim – Where the mother has been ordered to provide an expert valuer with access to the former matrimonial home – Where the mother has not complied with this order – Where an order is made that the mother do all things to arrange for the valuer to have access to the former matrimonial home.

FAMILY LAW – CHILDREN – Interim parenting – Where the child currently lives with the mother and spends day time with the father once a week –Where the father seeks that the child lives with him and spends some time with the mother – Where the Independent Children’s Lawyer seeks that the child live with the mother and spend overnight time with the father – Where the mother has expressed concern about the father’s mental health and emotional stability – Where the mother has denigrated the father in front of the child and shown the child court documents – Orders made for the child to live with the mother and spend overnight time with the father from Friday afternoon to Saturday afternoon – Order made requesting the Director-General of the Department of Family and Community Services to intervene in the proceedings – Order made expediting the proceedings.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Atwood

RESPONDENT: Ms Atwood

INDEPENDENT CHILDREN’S LAWYER: Ms Durand

FILE NUMBER: SYC 3943 of 2014

DATE DELIVERED: 11 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Condon

RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Durand

Orders

1. The mother do all things and sign all documents necessary to arrange for the single expert valuer to have access to the former matrimonial home by not later than 6.00 pm on 13 April 2015.

1. The Court notes that for the purposes of Order 1 the mother is to positively consult with Mr C or any other valuer who is engaged by D Real Estate at E Town.

1. Unless the parties otherwise agree in writing, and by way of variation of the interim parenting orders made on 15 December 2014, B born on … 2006 (“the child”) spend time with the father each weekend from the conclusion of school on Friday until 5.00 pm on Saturday (the following day).

1. The father’s time commence at G School and conclude at E Town Police Station on the Saturday.

1. The Court notes that the father has agreed to facilitate the child attending at Language school each Friday.

1. The mother is restrained from attending at G School on Friday afternoons.

1. Until further order the parents are restrained from denigrating each other in the presence or hearing of the child.

1. Until further order the parents are restrained from discussing these proceedings with the child or in his presence and from showing him or allowing him access to any Court documents.

1. The Court requests that the Director-General of the Department of Family and Community Services intervene in these proceedings.

1. The Court notes that it is alleged by parties in the proceedings that the only available accommodation for the child is unsafe and unhygienic.

1. These proceedings are expedited and that they be placed in the docket of Justice Loughnan.

1. The proceedings are adjourned to 10.00 am on 19 May 2015 for further directions in relation to the final proceedings, in particular to consider any response from the Department of Family and Community Services, to learn whether an approach to Legal Aid NSW in relation to the funding of an expert’s report has been successful or not and to consider trial directions for the proceedings.

1. The listing before Registrar George on 17 March 2015 is vacated.

1. The proceedings in relation to any outstanding subpoenas is adjourned to 25 March 2015 and the solicitor at whose request the subpoena issue to notify the addressee of the adjourned date.

1. Leave is granted to any party to restore the proceedings to the list on giving seven days’ notice to the Court and each other.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3943/2014

Mr Atwood

Applicant

And

Ms Atwood

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These are proceedings in relation to a child, B who was born in 2006.  He is in Year 3 at G School. 

2. It is alleged by one of the parents that they started a relationship in June of 1999.  They were married in 2002.  I did not see a date of separation in the documents.  An odd aspect of the case before me is that the parties have asked me to read only the most recent documents in a case that has been running for some time, and so I do not have much background material.  That has been a bit awkward, because twice late last year judges made orders in relation to the child, and the last lot of orders were made in December 2014.  I am asked to make changes to those orders without having the benefit of the earlier reasons for judgment or any of the evidence that was before the court on those occasions. 

3. There are parenting and financial issues between the parties.  For the purposes of today the financial issue relates to access by a valuer to the former matrimonial home at Suburb G.  The mother has been ordered on two occasions to provide that access and she has failed to do it.  Her explanation is that she could not obtain a signature on a document that she prepared for the valuer, acknowledging certain defects in the property and releasing her from liability in relation thereto.  Her concern expressed in her affidavit is that there are defects that she knows about at the property; the valuer coming onto the property might hurt himself; there could be an action against the occupier; and she does not have insurance.  The matters that she has included in the list for the valuer to release her from, include trivial matters.  The document contains a list which seems more designed to criticise the father than it does to provide any sort of safety warning for the valuer.  I would have thought that the same practical benefit would have been achieved simply by giving the valuer the piece of paper and letting him read it. 

4. It follows that a valuer is somebody experienced in valuing properties in all states of disrepair, bare blocks of land, demolished buildings, half-demolished buildings and so on.  Either the mother’s behaviour is aberrant, or she is trying to frustrate the order of the Court aimed at obtaining a valuation. 

5. I have explained to the parties that I do not have many options. One option would be simply to sell the property. There is some argument in favour of that. The mortgagee has been armed with a basis to enter, because the mortgage was not paid for a long time. Under s 57(2)(b) Real Property Act (NSW) 1900 the mortgagee could enter on that basis, even though the mortgage instalments are currently being paid. From the evidence of the parties, neither will be in a position to buy the other out. The mother does not want the property sold but that position belies much of her evidence. She deposes to living in squalor and says that outgoings such as the strata levy are not being paid. I have not been asked to read any documents about financial matters, such as Financial Statements, but I assume from the background facts that each of the parties will represent that they are not in a position to meet all of the outgoings as they fall due.

6. The second alternative is for the Court to issue a warrant to have the mother put out for the period of the valuer attending.  That is going to cause further costs to the taxpayer, and I do not see why police should be diverted from their duties.  I have indicated to the parties and particularly to the mother – this is after she has had a similar sort of warning on three times – that it is a matter for her to make arrangements with D Real Estate for the valuer to have access to the property, not with her badgering the valuer about how awful the father is for the entirety of the time he is there, but just to give him access to the property, to let him do his job by the close of business on 13 April.  If she does not do that, if the valuer is not given access, then Mr Condon for the father can bring the matter back and I will consider what of the other alternatives I should implement. 

7. As to the parenting issues, the current orders put in place in December have the child remaining with the mother and spending time with the father daytime on a Saturday with handover at a police station.  That order has been honoured in the breach, and when the matter was called on this morning the mother told me that she thought that it was relevant that the child did not want to go with the father.  I am told that she has been disabused of that proposition on a previous occasion by a judge.  I attempted to do that again today.  There are some children who are very strong-minded and who frustrate compliance with Court orders, but they are not eight years of age.  The mother gives evidence that there are some things in respect of which she finds it difficult to influence the child.  He refuses to wear socks on some occasions, and the school has made mention of this.  So there are some things that she is not able to impose her will on him about. 

8. Nevertheless, the Court has put orders in place.  They have been frustrated.  There is a report from a family consultant which suggests that there are some risk factors for the child arising out of the mother denigrating the father.  This is a case where the mother told the family consultant that there is a domestic violence issue between her and the father.  She made clear it was not anything to do with physical or threatened physical harm, but it was in terms of the father’s controlling or manipulative or neglectful behaviour.  The mother told the family consultant that she finds herself in a very difficult position and has spoken to the police about obtaining an apprehended violence order. 

9. The mother expressed concerns to the family consultant about the father’s mental health and his overall emotional stability.  The mother has a safety plan in place today, and she has been assisted today by security staff from the registry.  And the family consultant has acknowledged, some of the responses that the mother has displayed may be understandable if her allegations in respect of the father are true. 

10. However, the family consultant considered – and it appears in the mother’s presentation and in her documents – that the mother lacks an appreciation of the level of negative impact for a child of being exposed to those sort of feelings.  It is very hard for a sole parent in effect to hide their antipathy towards a previous partner, but there is no suggestion that the mother has made any attempt to do that.  She has taken every opportunity to demonise the father in the documents that have been provided.  The family consultant opined that it is important that there be time between the father and the child.  She recommended that the mother not expose the child to her hostility for the father.  She noted the ongoing risks for the child if that continues. 

11. Now, for the purposes of today, the father seeks orders that the current arrangements be reversed, that the child live mainly with him and spends some time with the mother.  The child is represented, and the child’s representative seeks that the child continue to live with the mother but that there be overnight time geared around weekends, Thursday overnight to Friday on one week, Friday through to Sunday on the other, and that be graduated to more time going from Thursday through to Monday and Thursday to Friday on the alternative weeks.  She seeks that the mother be restrained from attending at school on the dates that the father is to collect the child from school; that the father be restrained from attending at school on the dates that the mother is to collect the child from school; that the child attend school unless there is a doctor’s certificate and the parties be restrained from denigrating each other or discussing court proceedings in front of or within the hearing of the child, or showing the child court documents. 

12. B told the family consultant that he had had nightmares about coming to court, that he thought he was to actually appear in court, that he knew all about his father having a debt and being a big-time gambler; and that he had lied in court documents.  He told the family consultant that his knowledge of those things came from what his mother had told him and what he had read in various court documents to which he had access while in the mother’s care.  When he recited the list of complaints about his father, he was observed to refer to his diary because he could not remember them all.  That evidence is of the gravest concern. 

13. Albeit in the context of the property claim, the mother has highlighted the fact that she and the boy live in squalor.  Her parenting case is made more difficult because obviously she would be criticised for allowing that to continue, and she has no proposals to change it.  Although she attributes the responsibility for the child’s living conditions, to the father.  However, it is her immediate, ongoing, 24-hour-a-day responsibility not to have the child living in squalor.  Although it does not appear in her written evidence, there is reference in the list she gave the valuer to the fact that there is no hot water in the unit.  That was not a circumstance known to the Independent Children’s Lawyer (“ICL”) today, and it has caused the ICL to recommend that the Department of Family and Community Services should be involved in the proceedings.  Each of the parties has told me that they would welcome any inspection by the Department.  Given the unsatisfactory living conditions for the child the ICL is considering an application for a more significant change in the child’s living arrangement. 

14. I am quite worried about the mother.  I have said that a number of times today.  She does not have any mental health assistance.  Some of her statements and attitudes are odd.  The fact that she has been willing to stand outside court orders, that she would use as a defence the idea that the views of an eight-year-old child would be determinative of anything in his case, let alone living arrangements.  The child does not have any decision making rights in our community at all he cannot go where he likes, cannot drive a motor vehicle, cannot drink alcohol and cannot go out at night.  He has no vote.  That is a good thing, because he does not have the wherewithal to make those decisions sensibly.  That is why parents have responsibility for children.  If the mother believes that the child has a casting vote, she perhaps cannot manage him. 

15. The issue about the valuer having access to the apartment is entirely hypocritical to me.  The suggestion that there would be a realistic prospect of a suit at the hands of an injured valuer entering onto a property and yet no harm to a vulnerable eight-year-old child living in the property all the time, is bizarre. 

16. If I continue in this vein I will talk myself into the orders sought by the father.  These are matters of grave concern.  Three judges have tried to bring some of these things home to the mother, and we are apparently not making any impression on her. 

17. I accept that parenting is a hard job and that being a sole parent is a terribly hard job, but court orders must be obeyed.  This is the best and only system we have.  Parents make decisions about their children.  If they cannot agree about decisions co-operatively, then they can ask a court to make a decision for them.  They have to comply with that decision unless it is dangerous to do so. 

18. Taking the mother’s case to its logical conclusion, if it was dangerous for the child to be with the father, then the child’s view about it would be irrelevant.  He would not be given the option of whether to go with the father or not.  I do not want to just put more pressure on the mother for the sake of it but her proposals do not make any sense.  She has some loving people around her who are providing her with support.  She has a General Practitioner that she relies on.  I think she needs to reach out to those resources and see whether she can obtain help in getting some balance back into some of these issues. 

19. The mother said to me something about fighting that “she is fighting on all fronts”.  I am told that she plans to make an application for the ICL to be changed.  That is within her rights but the ICL cannot be responsible for any of these problems. 

20. I am going to do what I have foreshadowed.  If things do not improve, we might have to look at something else. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 March 2015.

Associate: 

Date:  9 April 2015