Baldwin & Ors and Merrick

FAMILY COURT OF AUSTRALIA

BALDWIN AND ORS & MERRICK

[2014] FamCA 721

FAMILY LAW – CHILDREN – Interim – Where the paternal grandmother seeks to intervene and that the children live primarily with her, she have sole parental responsibility for the children and they spend time with the mother each alternate weekend and communicate by telephone
FAMILY LAW – CHILDREN – Interim –Where the father seeks that the children spend supervised time with him
FAMILY LAW – PROPERTY – Interim – Application for sale of former matrimonial home and appointment of statutory trustee for sale

Family Law Act 1975 (Cth).

Goode & Goode (2006) FLC 93-286.
FIRST APPLICANT:	Ms Baldwin
SECOND APPLICANT:	Ms Merrick
THIRD APPLICANT	Mr P Merrick

RESPONDENT:

Mr J Merrick

INDEPENDENT CHILDREN’S LAWYER:

Colville Johnstone Lawyers

FILE NUMBER:

BRC

8035

2011

DATE DELIVERED:

Order made 22 August 2014; Reasons delivered 29 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

14 July 2014

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Mr Linklater-Steel of Counsel

SOLICITOR FOR THE FIRST APPLICANT:

Biggs Fitzgerald Pike

SOLICITOR FOR THE SECOND AND THIRD APPLICANTS:

Mr Trafford of Alex McKay & Co

SOLICITOR FOR THE RESPONDENT:

Mr Dulley as town agent for Toowong Legal; then Mr White from Toowong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cherry of Colville Johnstone Lawyers

it is ordered that

Ms Merrick has leave to intervene in the parenting proceedings and file and serve an Initiating Application, detailing the parenting orders sought on a final basis, by 4.00 pm on 5 September 2014.
Ms Merrick and Mr P Merrick have leave to intervene in the property settlement proceedings and file and serve an Initiating Application, detailing the financial orders sought on a final basis, by 4.00 pm on 5 September 2014.

it is ordered until further order

The children D, born … 2003, and S, born … 2005, spend time with the father and paternal grandparents on a supervised basis for two (2) hours per fortnight at such times as may be accommodated by a Contact Centre agreed between the parties.
That all parties take all steps necessary to ensure that the children’s supervised time with the father and paternal grandparents commence as soon as possible.
The time the children spend with the father and paternal grandparents pursuant to Clause (3) occur at times which do not conflict with the mother’s obligation to facilitate time between the child Y, born … 2013 and her father pursuant to the Order made by Judge Spelleken on 15 May 2014.
The parties have liberty to provide a copy of the Order dated 15 May 2014 in the matter of F & Baldwin to the Contact Centre engaged to provide supervision of the children’s time with the father and paternal grandparents.
The mother, father and paternal grandparents share in the costs associated with the children spending time with the father and paternal grandparents at a Contact Centre in the following manner:
(a)each person pay any costs associated with that person’s participation in any Intake Session required by the Contact Centre; and
(b)the mother pay one quarter (¼) of the costs associated with the children spending time with the father and paternal grandparents at the Contact Centre; and
(c)the father and paternal grandparents – in whatever proportion as may be agreed between them – pay three quarters (¾) of the costs associated with the children spending time with the father and paternal grandparents at the Contact Centre.
Any educational institution at which the children attend is, by this Order, authorised to provide to any party, at that party’s request and cost, all information about the children’s attendance and progress as may lawfully be provided.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth), Ms B prepare an updated Family Report to assist the Court in the determination of the terms of further interim parenting orders.
That, in order to facilitate the preparation of an updated report by Ms B and pursuant to s 62G(5) of the Act, it is directed that:
(a)the parties attend upon Ms B as requested; and
(b)the mother ensure that the children attend upon Ms B as requested.
That the Respondent pay or cause to be paid the loan repayments to Perpetual Trustees Victoria Limited secured by mortgage over the real property at I Street, Suburb A (the property) in the State of Queensland as and when they fall due.
That in the event the Respondent fails to comply with the terms of Clause (11), the Applicant has liberty to apply, on the giving of seven (7) day’s notice in writing, for an Order that the property be sold.
Save as is otherwise ordered and save for the Applicant’s application that the Respondent pay her costs:
(a)the interim Application made orally on 13 June 2014; and
(b)the interim Application filed 10 July 2014 and;
(c)the interim Application heard by leave on 14 July 2014,
are otherwise dismissed.

AND IT IS DIRECTED:

That any Application in a Case seeking an order that the real property at I Street, Suburb A in the State of Queensland is sold be listed before the Honourable Justice Hogan.
That the matter be listed for a further interim hearing before the Honourable Justice Hogan no earlier than 14 days after the release of the report prepared by Ms B as directed above.

NOTATION:

A.The Court notes that paragraphs 1, 3, 4, 6, and 7 of the Father’s Application in a Case filed 10 July 2014 were not pursued by the Father at the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin and Ors & Merrick 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 BRISBANE

FILE NUMBER: BRC 8035 of 2011

Ms Baldwin

Applicant

And

Mr J Merrick

Respondent

REASONS FOR JUDGMENT

On 13 June 2014, I made interim Orders in relation to the children of the parties’ marriage, D born in 2003 and S born in 2005, in circumstances outlined in the Reasons for Judgment delivered that day. I also granted the Respondent’s application that the trial of the matter – listed for five (5) days commencing 14 July 2014 - be adjourned to a date to be determined.
I advised the parties that I would hear any interim applications – a number of which were foreshadowed by the Applicant’s Counsel that day – on the day previously allocated as the first day of the final hearing.
Consequently, I am asked to determine the following Interim Applications:
a)the father’s Application in a Case, filed 10 July 2014, for parenting orders in relation to his time with the children;
b)the paternal grandmother’s Application in a Case, filed 10 July 2014, for parenting orders in relation to the children;
c)the paternal grandparents’ Application, filed 10 July 2014, seeking to intervene in the property settlement proceedings between the parties;
d)an interim Application, made orally by Counsel for the mother on 13 June 2014, for the sale of the matrimonial home; and
e)an interim application by the paternal grandparents in respect of property matters, canvassed at the hearing on 14 July 2014 and for which an application was subsequently filed in the Registry.
I have also been asked to determine an Application by the Applicant for an order that the Respondent pay various costs. An order disposing of that Application and Reasons for it will be made and delivered at a later date.

Interim Parenting Applications

The principles applicable to and the manner in which interim parenting applications by parents are to be dealt are well known.[1] The same may be said of the principles applicable to situations in which parenting orders are sought by persons, such as the paternal grandmother, who are not ‘parents’ within the meaning of that term in the Family Law Act (1975).[2]
[1] See for example: Goode & Goode (2006) 93-286.
[2] See for example: Donnell & Dovey (2010) 42 Fam LR 559.

Father’s Application for interim parenting Orders

Whilst the Application in a Case filed 10 July 2014 sought a number of orders, the father’s legal representative outlined that the father sought the following interim orders:
a)the parents have equal shared parental responsibility for the children;
b)the children spend time with him on a supervised basis at a Contact Centre for two (2) hours per week;
c)any fees associated with time between the children and the father, including those associated with any necessary Intake Session, be shared equally between the mother and father;
d)the children communicate with him by telephone on three (3) occasions per week; and
e)the children’s schools be authorised to release information, including copies of school reports, about the children’s progress at each parties’ request.
That the father sought an order in the terms outlined above makes it unnecessary to consider the offers made by members of his extended family to supervise the children’s time with him.
In addition to seeking Orders that the children spend time with him – as outlined above – the father sought, in paragraph 3 of the Application in a Case filed 10 July 2014, that the children live with the paternal grandmother. No specific submissions in support of the order were made by the father’s legal representative but I have proceeded on the basis that the father joins in the submissions made on his mother’s behalf – at least insofar as they relate to the children’s living arrangements.
The mother opposes the making of any order which would see the children spend time with the father. Her Counsel submitted the Court would not be persuaded that any order for the children to see and communicate with the father is in their best interests because:
a)such order would potentially expose the children to the father’s grief and expressions of suicidality; and
b)the children would be exposed to the father’s continuing negativity about the mother; and
c)the father lacks insight into the effect of his attitude and behaviour on the children.
Whilst acknowledging the mother’s concerns, I consider that the risk to the children of exposure to any of these matters can be ameliorated by their time with the father occurring at a Contact Centre in the manner he proposes.
I accept the submission made by the Independent Children’s Lawyer that it is in the children’s best interests to spend supervised time with the father at a Contact Centre - at least until Ms B, the author of previous Family Reports, has the opportunity to interview the parties and the children and prepare a further report to assist the Court in future interim deliberations.
I am not persuaded that it is in the children’s best interests that there is a continuation of the complete cessation in their time and interaction with the father – the parent with whom they lived from separation until the Order made on 13 June 2014. An opportunity to spend supervised time with the father will enable the children to continue to maintain their relationship with the father pending further assessment by the Family Report writer.
Counsel for the mother submitted her financial position is such that she is unable to contribute toward the costs of supervised time between the children and the father. The mother earns approximately $1,380.00 per fortnight. She and the children live with her parents. She has limited assets and has mortgaged her interest in the former shared residence to secure her legal expenses, which currently stand at about $98,950.88. The mother’s expenses amount to just less than half of her fortnightly income.
The father is recently unemployed. As a result, it is likely that he will be unable to contribute finically to the support of the children and the mother will be left to bear a larger proportion – if not the entirety – of the child related expenses, although, no doubt, with the assistance of increased government provided support.
Counsel for the mother submitted that there is evidence before the Court to establish, on an interim basis at least, that the paternal grandparents are persons of not insignificant financial means: Annexure ‘STB-18’ to the Applicant’s affidavit filed 6 August 2014 contains a notation by a mortgage broker to the effect that the paternal grandparents had, at that time at least – and in the asserted opinion of the broker - a net worth of about $5,000,000.00.
I consider that the balance of convenience favours, and the children’s best interests are met by, orders in terms which require each party to be solely responsible for their own costs of attendance at any Intake session required by a Contact Centre and, thereafter, to share in the ongoing costs of the children spending time at a Contact Centre.
I accept that an order for supervised time between the children and the father needs to take into account the mother’s obligation to ensure that her youngest child, Y, spends time with her biological father as directed by an Order made by Judge Spelleken on 15 May 2104 (the May 2014 Order). The May 2014 Order compels the mother to facilitate Y’s time with her father by attending at McDonald’s at Suburb C at 9.00 am and 4.00 pm every Friday and one day of each weekend.
It is appropriate that the parties have liberty to provide the Contact Centre, at which the children will spend time with the father, with a copy of the May 2014 Order to assist in the determination of suitable times which do not conflict with the mother’s obligations pursuant to the terms of that Order.
I am not persuaded that it is presently in the children’s best interests that the parents have equal shared parental responsibility for major long term issues relating to them. The circumstances which led to the Order made on 13 June 2014 – as outlined in the Reasons delivered that day – persuade me that it is, at present, highly unlikely the parents will be able to make decisions jointly about the children as they would be required to do if an order for equal shared parental responsibility was made. Things may, of course, change by the time the matter proceeds to a final hearing.
I am not persuaded, at this stage, that it is in the children’s best interests to communicate with the father by telephone as he seeks. Such communication is highly likely to expose them to the manifestations of the father’s likely distress and may well be unsettling and destabilising for them. This situation may change once the Court has the benefit of a further assessment by Ms B.

Paternal Grandmother’s Application for interim parenting Orders

The paternal grandmother is yet to file an Initiating Application outlining the parenting orders sought on a final basis. However, I was advised from the Bar table by her legal representative that she intends to seek final parenting orders in this matter. Despite the objection of Counsel for the mother, I determined to hear the grandmother’s Application for interim parenting orders and to make directions designed to regularise the matter: a course I consider open to me having regard to the imperative imposed by Rule 1.04 of the Family Law Rules 2004 (the Rules).
The paternal grandmother seeks, by way of interim order, that:
a)the children live with her;
b)she have sole parental responsibility for long term issues in relation to the children;
c)the children spend time and communicate with the mother each alternate weekend from Friday until Monday and have unrestricted telephone communication with the mother.
It is immediately apparent that both the mother and the father oppose an order which would see the paternal grandmother having sole parental responsibility for the children.
The paternal grandmother’s case, as outlined in the affidavit material and as presented through the submissions made on her behalf by her legal representative, may be summarised as follows:
a)that, as a result of her significant involvement in their lives since birth, the children have a significant, if not primary, attachment to her; and
b)her home is the “one safe haven” for the children; and
c)that, historically, she has supported the mother emotionally, financially and practically and will continue to do so in a like manner in the future;
d)it is in the children’s best interests to live with her (and their paternal grandfather) because the mother has demonstrated an unwillingness to continue the children’s important engagement in extra-curricular activities.
In addition, the paternal grandmother’s legal representative submitted both she and the paternal grandfather were acutely aware of the allegations against the father. He emphasised that her application was expressly silent on the issue of contact or interaction between the children and the father – lest it be thought there was some unstated intention to facilitate the children spending time with the father during time they would spend with the paternal grandparents.
In opposing an order in the terms sought by the paternal grandmother, Counsel for the mother submitted, in essence, that the Court would not be persuaded it is in the children’s best interests to live primarily with the paternal grandmother because:
a)on a consideration of the preponderance of evidence, it is unlikely the paternal grandmother will act to support the children in their relationship with the mother and more likely than not that she will – deliberately or otherwise - undermine the same;
b)the Court would be persuaded the paternal grandmother has acted so that third parties engaged to assist the children form a negative opinion of the mother in circumstances where the basis for such opinion does not exist; and
c)she has demonstrably sought to involve the children in the conflict between the parties by encouraging them not to tell the mother about relevant medical attendances; and
d)she has, despite numerous suggestions by the Family Report writer and the contents of the Reasons for Judgment previously delivered, without insight, continued to display the same level of vitriol toward the mother in her most recent affidavit material as in her previous material – behaviour which demonstrates a likely inability to support the children’s relationship with the mother.
The Independent Children’s Lawyer opposes an order that the children live with the paternal grandmother. She supports an order permitting the children to spend time with them during supervised time with the father. In doing so, she emphasised Ms B’s assessment that:
a)there are too many people parenting the children[3]; and
b)the mother was observed to be the most child-focused.[4]
[3]Family Report 20 January 2014, paragraph 73.
[4] Family Report 29 November 2012, [71].

The primary considerations: s 60CC(2) of the Act

It is clear on the evidence of Ms B that the children would benefit from having a meaningful relationship with both of their parents. The effect of the Order made on 13 June 2014 is that they have an increased opportunity – through living with the mother – to continue to establish their relationship with her. A change to their living arrangements in the manner sought by the paternal grandmother would decrease significantly their opportunity to spend time with the mother.
The father and paternal grandmother both express significant concerns for the children’s welfare if they remain living primarily with the mother. However, as noted at paragraph 26 of the Reasons delivered on 13 June 2014 – which I adopt and incorporate into these Reasons – the father told Ms B most recently that he had no concerns about the children spending time with the mother whilst she continues to live with her parents.

There is no suggestion the mother intends to change her current living arrangements. Concerns raised by the father and paternal grandmother about the mother’s ability to control her behaviours and expressions of emotion whilst caring for the children need, therefore, to be considered in the context of this reality.
Whatever may eventually be found about the mother’s behaviour at a final hearing of this matter, the reality of the mother’s living circumstances provides support for my conclusion that it is highly unlikely the children will be at an unacceptable risk of harm or neglect or family violence if they continue to live primarily with the mother.
Further, whilst the father and paternal grandmother have consistently expressed concern about the mother’s asserted inability to control her emotions and/or behaviours in the children’s presence, Ms B records, in her March 2012 Family Report (which arose out of interviews and observations undertaken between late January 2012 and late February 2012) that:
a)when she saw the mother and interacted with her, the mother remained in control of her emotions; and
b)she observed the mother to be largely child-focused.
I accept the submission made by Counsel for the mother to the effect that it is more likely than not that, if the children live primarily with the paternal grandparents, they would be exposed – intentionally or otherwise – to their negative views of the mother and her parenting capacity. Regard need only be had to the contents of Ms B’s reports and, importantly, the paternal grandmother’s most recent affidavit in which she expresses the view that:
a)history shows that the mother can never focus on the physical, educational and emotional welfare of her sons[5]; and
b)to use her words: “I know from my dealings with [the mother] over the years that she has no capacity to parent or to attend to the children’s specific needs in an appropriate manner.”[6] (my emphasis)
[5] Par [59] affidavit of paternal grandmother filed 10 July 2014.
[6] Par [84] affidavit of paternal grandmother filed 10 July 2014.
The expression of a view in such absolute terms even now places Ms B’s conclusion that the mother appeared to believe the paternal grandparents’ support during the relationship was generally intrusive and undermining of her own sense of her own parenting abilities in context.

The additional considerations: s 60CC(3) of the Act

When, in about late January 2012, Ms B saw the children’s first interactions with the mother (after spending no more than about 20 minutes with her since separation in October 2010), the children hugged her, did not display any sign of earlier reported reservations about spending time with her, exhibited “much energy and positive pandemonium” – further, S spontaneously expressed overt affection toward her, hugging her or giving her “high fives” after winning a game.
On the second occasion Ms B supervised the children’s time with the mother, D did not express any worries about spending time with her, both children viewed their time with the mother in their last session as good and neither child had any concerns about it. Further, Ms B noted the children showed no signs of distress, stress or fear about spending time with their mother: in fact, D’s vocal tics were less frequent than during the previous visit.
On the third occasion Ms B supervised the children’s time with the mother, she noted that, whilst S expressed his thought that the father and paternal grandparents were a bit worried about him spending time with the mother, he did not share their worry. Again, both children viewed their previous time with their mother positively and had no concerns about it.
After conducting these sessions, Ms B noted that, despite her expectation that she would observe in the children some visible reticence to spending time with their mother (especially since the father’s information was not optimistic and appeared to support this forecast), her observations were to the contrary in that:
a)both children appeared on each occasion to be more than willing to spend time with their mother and this was “overwhelmingly positive”;
b)she did not observe any indicators that she would have expected to see in children who had been significantly traumatised by an abusive parent as alleged by the father;
c)D’s vocal tic was not present during his last session with the mother.
Ms B concluded, as at March 2012, that, given the positive time the children had spent with the mother, they should continue to have time with her to ensure their relationship could grow and go from strength to strength.
In her March 2012 Report, Ms B concluded that:
a)the mother was, on the whole, observed to be child-focused, warm and nurturing of the children and appropriately assertive when required;
b)the mother was receptive to feedback which she attempted to put into practice during the following session;
c)she saw no evidence that the mother posed a threat to the children’s safety but, given the lack of information available to her at that time, urged caution at that stage;
d)the idea that the mother’s time with the children could be supervised by the father or paternal grandparents was not supported because she thought their presence was a catalyst for conflict.
Ms B prepared a second report, dated 29 November 2012 (the November 2012 Report). At that time, the children were spending unsupervised time with the mother each alternate weekend. Neither parent provided information to suggest there were any significant concerns about this arrangement.
The evidence establishes, on a prima facie basis at least, that the residual adverse effects of the mother’s acquired brain injury were no longer as prevalent or had stabilised by this time. Ms B concluded, and I accept – at least on a prima facie basis – that it appears likely any volatile behaviour described by the father, which may have previously been associated with the mother’s parenting as a result of her acquired brain injury, was less likely to occur.
I note further that, after the mother saw Dr E, consultant psychiatrist, on 16 December 2013, Dr E expressed the opinion that she “remains the most stable I have seen her and has maintained this stability over the last few reviews”.[7] Dr E expressed the opinion that the mother was less prone to becoming overwhelmed or emotionally reactive, had remained socially connected with playgroup in church and had been stable in her work attendance. Dr E also considered that the work the mother had done with her psychologist over the past 12 months had made a big difference – she further noted that the mother described she had developed a much better capacity to think through issues when they come up and choose responses rather than reacting quickly.
[7] Exhibit 5.
Ms B considered the mother presented as being the more child-focused of the two parents. She assessed the mother’s thinking to be well considered and that she demonstrated the capacity to prioritise the children over her own needs. Ms B recommended, then, that the children’s time with the mother occur in significant blocks so they could experience her parenting them in all aspects of their lives. She was, therefore, in favour of the mother’s proposal that the children spend five nights a fortnight with her, together with half of the gazetted school holiday periods.
Ms B noted, at this time, that the father seemed intent – as was previously the case – on having the mother viewed unfavourably and to discredit any opinion or view contrary to his perception of her, the children or himself. Further, she outlined he appeared to have defined the mother by her limitations and that his proposal (at that time) would have her and her role in the children’s upbringing “essentially relegated to a superficial status”.
During the interviews for her November 2012 Report, the paternal grandparents indicated to Ms B that:
a)they believed the mother suffered from a plethora of psychological disorders;
b)the mother “knew how she was mistreating the children but that she could not help it”[8];
c)the mother lacked capacity to parent and “couldn’t cope with the children for more than an hour.”[9]
[8] Family Report dated 29 Nov 2012, [41].
[9] Family Report dated 29 November 2012, [40].
Relevantly to a consideration of the paternal grandmother’s primary position that the children live primarily with her, Ms B noted that, even if the father wished to shift in his thinking about the mother and her parental role, the paternal grandparents would likely make this increasingly difficult as both seemed to perpetuate a negative image of the mother and appeared unable to move beyond any wrongdoing they believed she had committed. [10]
[10] Family Report [81].
Ms B also expressed the opinion that the paternal grandparents had failed to appreciate the mother’s strengths and seemed to have viewed her bids for help during the marital relationship as a sign of her inadequacies rather than appreciating them within the context of the circumstances at the time.
After interviewing the parties and paternal grandparents on 16 January 2014, Ms B prepared an updated Family Report – dated 20 January 2014. In it she records that the parents agreed that the maternal and paternal grandparents were not permitted to participate in the decision making about the children’s needs (including any health needs) or to be involved in participating in any assessment/treatment appointments other than providing practical support such as transport if required. I consider it more likely than not that this reflected an appreciation by both parents – on some level at least – that such participation was unhelpful to their decision-making process.
Relevantly, Ms B considered that the paternal grandparents – and particularly the paternal grandfather – still appeared to hold a level of animosity towards the mother and viewed most of her actions in a negative light. There was, according to Ms B, no apparent change to the paternal grandparents’ attitude toward, or opinion of, the mother despite the obvious passage of time. Increased exposure to such views and attitudes, particularly without the opportunity for them to be counter-balanced by significant time with the mother, is unlikely to be beneficial to the children.
The continuation of such an attitude – unsupported by Ms B’s assessment of the mother’s parenting capacity – suggests it is unlikely the paternal grandmother will support the children in their ongoing relationship with the mother if they were to live primarily in her household.
Further, it appears highly likely that the children have been exposed to the paternal grandmother’s view that D’s tics were caused by the mother’s actions in squeezing him too tightly when he was a baby. For example, when D spoke with a psychologist organised by the father and paternal grandmother in late July 2013, he told her that when he was a baby the mother would squeeze him so he would stop crying – he remembered it.
It is of significant concern that the documentary evidence supports a conclusion – even on an interim basis – that it is more likely than not that the father and paternal grandmother portrayed the mother as neglectful – because she failed to administer prescribed medication – to at least some of the children’s medical specialists in circumstances where they (the father and paternal grandmother) had not told her of the need to administer the medication. Such action belies any assertion that the paternal grandmother would be likely to support the mother or her relationship with the children in the event that they lived primarily with her.
The father clearly decided not to speak with the mother about the issue of medication despite being made aware that the consulting psychiatrist was not willing to review, change or add to the medication unless the mother was made aware of current medical intervention.
Further, it is clear from the exhibits that the paternal grandmother told the children not to tell the mother about their attendance on a counsellor. Whilst the paternal grandmother says, in essence, that this was necessary to prevent the mother from ceasing the children’s attendance at the counsellor – a matter incapable of resolution at an interim hearing – her actions clearly embroiled the children in a deception of their mother about a very relevant matter.
Having regard to the matters outlined briefly above, I am not persuaded at present that it is in the children’s best interests to live primarily with the paternal grandmother (and paternal grandfather). Further reasons for this determination include that:
a)an order in these terms would require the children to deal with further disruption and upheaval in circumstances where they have – as a consequence of the June 2014 Order – recently transitioned from their father’s predominant care to the mother’s care;
b)the father himself raises no concern about the care of the children whilst they continue to live with the mother in her parents’ home – there is no suggestion that this is likely to change in the near future;
c)an order which would see the children live predominantly with the paternal grandmother would likely re-expose the children to the negative attitudes and views of the mother held by that household (as discussed briefly above) – it would see the children living within a home in which there is the belief that the mother’s behaviour was causatively responsible for D’s significant tics;
d)given the matters outlined in paragraphs 53 and 55 above, it appears more likely than not that such a primary care arrangement would have the very real risk of undermining the mother in her role as one of the children’s parents, placing the children again in a situation in which they are enjoined to keep important secrets from the mother and minimising her capacity to be involved in making parenting decisions about the children.
I am not persuaded that it is in the children’s best interests, on an interim basis, that the paternal grandmother have sole parental responsibility for them. The children will, as a result of the decision made today, continue to live with the mother. There is nothing in the Family Report prepared by Ms B to suggest she is incapable of making decisions about major long term issues for the children – so much is, in fact, acknowledged by the father in seeking an order that he and the mother have equal shared parental responsibility for the children.

The children’s time with the paternal grandmother (and grandfather)

I have given significant and considered thought to whether it is in the children’s best interests to spend unsupervised weekend time with the paternal grandparents who have, it is clear, been significantly involved in their past care. I accept that such weekend time would provide the children with the opportunity to spend time with their grandparents and members of their extended paternal family.
Counsel for the mother submitted, in essence, that such an order would expose the children to the negative and critical view of the mother held by the paternal grandparents and to the risk that they would act to undermine the children’s recent change to living primarily with the mother. Given the period of time over which the paternal grandparents have voiced criticism of the mother and her capacity to parent the children and the matters adverted to above, such submission is persuasive.
There is nothing in Ms B’s most recent report to suggest that the paternal grandparents’ have the capacity to reflect upon the impact on the children of their expression of negativity about the mother. However, more recent developments may provide such impetus.
Ideally, the children should be afforded the opportunity to spend unsupervised time with the paternal grandparents so that they can also receive the benefit of spending time with other members of the extended paternal family. However, such unsupervised time can only be in their best interests if their primary placement in their mother’s care in not undermined by such interaction.
Given that I continue to hold significant reservations about the paternal grandparents’ capacity to support the children in their relationship with the mother, I am persuaded that the children’s best interests favour a cautious approach – at least until the Court has the benefit of an updated report by Ms B. If such report suggests that the paternal grandparents have the capacity to act supportively toward the children in their relationship with the mother – who will continue, until further order, to provide their primary care – it may well be in the children’s best interests to afford them the opportunity to spend weekend time (at whatever frequency is appropriate, supportive of their relationship with the mother and not undermining of the same) with the paternal grandparents.
Until then, however, I consider that the children’s best interests will be promoted by having the opportunity to spend time with the paternal grandparents in an environment in which there is no possibility that they will be exposed to undermining or critical comments about the care they have been receiving since the change to their primary living arrangements.
I am also persuaded that the appropriate order is one which sees the parties share equally in the costs of the children’s supervised time with the father and paternal grandparents and the orders I make reflect that conclusion.

The Paternal Grandparent’s application to be joined

The paternal grandparents seek to intervene in the property proceedings between the parties so as to be able to advance their claim for the repayment of monies advanced by them to the parties for the purchase of the former matrimonial home.
It is not in dispute that monies were advanced: what is, however, in dispute is the basis on which they were advanced.
It is clear the parties and the paternal grandparents executed a loan agreement in relation to monies advanced. However, as I understand it, the mother advances the case that any lent monies were repaid using other joint borrowings. In addition, as I understand it, the mother also asserts that some of the funds advanced by the paternal grandparents were gifted to the parents and not lent to them.
Neither the father nor the paternal grandparents accept the mother’s contentions.
Given the above, it is clear the paternal grandparents fall within the category of person envisaged by Rule 6.02(1) of the Rules. Consequently, I am persuaded that they must be included as parties to the case between the mother and father.

Mother’s application to sell the former matrimonial home and the paternal grandparent’s Interim Property Application

The Application in a Case filed on behalf of the mother on 7 August 2013 has not yet been determined. By it, the mother sought various orders relating to the valuation of property of the parties.
This has been overtaken somewhat by subsequent events and, by oral application made by Counsel for the mother on 13 June 2014, the mother now seeks that:
a)the former matrimonial home – situated at I Street, Suburb A – (the property) in which the father lives is sold;
b)a trustee for sale be appointed to facilitate such sale, and
c)the net proceeds of sale be placed in a solicitor’s trust account pending final determination of the matter.
Both the father and the paternal grandparents oppose any order for the sale of the property. Whilst the paternal grandparents sought interim orders in relation to the sale proceeds of the property, their primary position – at least as I understood it – was that the property ought not be sold until the Court is in a position to make final property orders.
The mother and father own the property as tenants in common in equal shares. A mortgage is registered over both interests and secures their joint loan with Perpetual Trustees Victoria Limited.

The mother’s application is complicated by the fact that, to secure payment of the legal fees owing by the mother to them, her solicitors have registered a mortgage over her interest in the property. There was no suggestion from the Bar table that the solicitors will agree to release their mortgage without payment of the funds it secures.
Consequently, if the property is sold, the mother’s solicitors will be paid the mother’s outstanding legal fees and the property available to meet the claims of the parties – and the intervening paternal grandparents – will be diminished in circumstances where there is no other property from which any subsequent adjustments could be made if considered necessary to permit just and equitable final orders to be made.
Having quite properly drawn the Court’s attention to the existence of the solicitor’s mortgage, Counsel for the mother submitted that a sale of the property was, in any event, necessitated by the fact that the loan secured by mortgage over the property was in arrears. Reference was made to a copy of the loan statement from Perpetual Trustees Victoria which illustrates that no loan repayments were made between 31 January 2014 and 19 June 2014. It was said that sale was, therefore, necessary to prevent an erosion of the parties’ equity in the property.
The loan went into default on 4 June 2014.[11] However, at the time of the hearing of the Application for sale, it had been brought into line as a consequence of payment made by the paternal grandparents.
[11] Mother’s affidavit filed 4 July 2014, annexure SB3.
Despite this, the mother’s Counsel continued to press for an order for sale because:
a)no undertaking had been made by any party to continue to meet the loan repayments as and when they fall due; and
b)it was submitted the Court would not be persuaded the father and/or paternal grandparents will comply with any order to make or cause such payments to be made as and when they fall due because of asserted non-compliance with previous Court Orders; and
c)an order for sale would prevent the necessity of the matter returning to Court as a consequence of future non-payment of the due loan repayments, especially given the father’s unemployment.
I do not accept the submission made by the father’s legal representative that the mother’s application for sale of the property in which the father lives was opportunistic and predatory. The mother, like any party with an interest in property, is entitled to take proper steps to protect the value of that interest.
In opposing an order for sale of the property, the grandparents’ legal representative submitted there is no urgency in the application in that the loan is not in arrears and there is no suggestion that the mortgagee is seeking to force a sale of the property.
I do accept the force of the submission that, as long as there is an arrangement by which the loan repayments are met as and when they fall due, it is premature to dispose of the property. In arriving at this conclusion, I take into account the consequence of a sale – as outlined in paragraph 75 – and that, until he recently lost his employment, the father was making the repayments.
I am persuaded that the balance of convenience favours an order which permits the father to continue to live in the property as long as arrangements can be made to ensure the loan repayments are paid as and when they are due. If, however, this is not a realistic possibility into the future, further consideration may well need to be given to the manner in which the parties’ competing interests can best be met pending resolution of the property proceedings.
I order accordingly.

I certify that the preceding eighty-three(83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 August 2014.

Associate:

Date: 29 August 2014

[2014] FamCA 721

29 August 2014

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Jurisdiction

Remedies