BANGART & BANGART
[2020] FCCA 1770
•3 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANGART & BANGART | [2020] FCCA 1770 |
| Catchwords: FAMILY LAW – Interim hearing – property – where applicant seeks sale of matrimonial home – where respondent and children still reside in matrimonial home – where insufficient evidence to support wastage argument through mounting arrears on matrimonial home – where matrimonial home ordered to be sold if respondent fails to pay for expert report. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61B, 61C 61DA, 65D, 65DAA, 65DAB, 69ZW |
| Cases cited: M & M (1988) FLC 91-973 Goode & Goode (2006) FLC 93-286 Napier & Hepburn (2006) FLC 93-303 Marvel & Marvel (2010) 240 FLR 367 SS & AH [2010] FamCAFC 13 |
| Applicant: | MS BANGART |
| Respondent: | MR BANGART |
| File Number: | SYC 1730 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 27 September 2019 |
| Date of Last Submission: | 27 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Ianson of Legal Aid NSW City F Family Law |
| The Respondent appeared on his own behalf |
| Solicitors for the Independent Children's Lawyer: | Mr Quinn of Intercept Law |
ORDERS
PENDING FURTHER ORDER, THE COURT ORDERS:
That the child X born in 2005 (‘X’) live with the father, MR BANGART, born in 1971 (‘the father’).
That X spend time with the mother MS BANGART born in 1973 (‘the mother’) in accordance with his wishes.
That in the event that X expresses a wish to his father to spend time with or communicate with his mother, then the father must do all that is reasonably practicable to enable X to so spend time with or communicate with his mother.
That the child Y born in 2006 (‘Y’) live with his father.
That Y spend time with his mother each alternate weekend from after school on Friday until the start of school on Monday in the same pattern as has been occurring pursuant to the order of this nature made on 20 May 2019.
That the children Z born in 2008 (‘Z’) and W born in 2010 (‘W’) live with their mother.
That Z and W spend time with their father as follows:
(a)For two occasions, each alternate Saturday from 9.00 AM until 4.00 PM; and then
(b)For two occasions, each alternate weekend from 9.00 AM on Saturday until 4.00 PM on Sunday; and thereafter
(c)Each alternate weekend from after school on Friday until the start of school on Monday,
such that each occasion occur on the alternate weekend on which Y is not spending time with his mother, such that Y, Z and W are together each weekend.
That the parties do all things necessary to ensure that Y remain enrolled at, and attend, C School.
That each of the parents is restrained from initiating or continuing any discussion with any of the children about where any of the children want to live.
That the Independent Children’s Lawyer identify a suitable child and family psychiatrist to be appointed as a single court expert (‘the single court expert’) pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) to prepare an expert’s report in relation to the parenting issues affecting X, Y, Z, and W (‘the expert’s report’) and submit to the Court in Chambers within 21 days a Minute of Order providing for the appointment of the identified expert and the matters to be addressed in the expert’s report.
That upon the making of an order pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 (Cth), the parents must do all things necessary to ensure that they and each of the children attend all and any appointments as arranged for them by or with the single court expert, whether arranged by either of the parents or by the Independent Children’s Lawyer.
That the father initially be solely responsible as between the father and the mother for payment of the fees of the single court expert for preparation of the expert’s report, any contribution to those fees by the mother to be for determination on final hearing.
That within 21 days of a request being made to him for such payment, the father pay into the trust account of Intercept Law, Solicitors, the sum notified to him by the Independent Children’s Lawyer as the amount required for payment of the fees of the single court expert for preparation of the expert’s report.
That in the event that the father fails to comply with order 13 then the father must within 35 days of that failure to comply vacate the real property at D Street, Town E in the State of New South Wales (‘the D Street, Town E property’).
That following a vacation of the D Street, Town E property by the father pursuant to order 14, the mother shall take possession of the D Street, Town E property for the purpose of selling the D Street, Town E property and forthwith thereafter sign all documents and instruments and do all things necessary to list for sale the D Street, Town E property at a listing price determined by the mother, with a real estate agent selected by the mother and shall proceed to a sale of the D Street, Town E property at a sale price acceptable to the mother and following such sale the proceeds of sale shall be applied as follows:-
(a)In adjustment of rates on settlement;
(b)In payment of agent’s commission (if any) on sale;
(c)In payment of legal and all other proper costs of sale;
(d)In repayment of all and any loan accounts secured on the D Street, Town E property sufficient to discharge the first registered mortgage over the D Street, Town E property;
(e)In payment into the trust account of Intercept Law, Solicitors, the sum that was notified to the father under order 14;
(f)In retention of the then remaining balance of the net proceeds of sale in the trust account of the wife’s solicitors upon trust for the father and the mother jointly.
That in the event that the D Street, Town E property does not sell by private sale within two months from the date of listing under order 15 then the mother shall sign all documents and instruments and do all things necessary to list the D Street, Town E property for sale by public auction with an auction agent selected by the mother at a reserve price advised by the auction agent and shall proceed to a sale at a sale price acceptable to the mother and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in order 15 hereof.
That in the event that order 16 operates and the D Street, Town E property does not sell by public auction in accordance with order 16 hereof then the D Street, Town E property shall be resubmitted for sale by private treaty in accordance with the provisions of order 15 hereof and the D Street, Town E property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the D Street, Town E property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 15.
That for the purposes of orders 13 and 14, a request by the Independent Children’s Lawyer to the father shall be deemed to have been received by the father on the day that an email to that effect is forwarded to the father to each of email addresses ... and ....
That for the purposes of any sale of the D Street, Town E property the father must complete and sign and return to the mother or her solicitors any Authority To Discharge Mortgage, or document to that effect, presented to him in relation to any mortgage registered on title to the D Street, Town E property AND the father must complete and provide to the mother within five (5) days of his vacating the D Street, Town E property a Withdrawal of Caveat document in registerable form in relation to any caveat registered on title to the D Street, Town E property at his request.
That in the event that the father refuses or neglects to comply with order 19 in relation to the execution of any Authority To Discharge Mortgage, or document to that effect, or Withdrawal of Caveat, than pursuant to section 106A of the Family Law Act 1975 (Cth) the Court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry to execute such deed, instrument or document in the name of the father and further appoints those Registrars to do all acts and things necessary to give validity and operation to such document.
THE COURT NOTES THAT
A.For the removal of any doubt, orders 7, 8, 10, 11, 12, 13, 14, 19, 20 and 21 of the interim orders made by consent on 20 May 2019 remain in force.
IT IS NOTED that publication of this judgment under the pseudonym Bangart & Bangart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1730 of 2019
| MS BANGART |
Applicant
And
| MR BANGART |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim proceedings under the Family Law Act 1975 (Cth) (‘the Act’) in relation to parenting arrangements for the children of the applicant mother, Ms Bangart (‘the mother’) and the respondent father, Mr Bangart (‘the father’). Ms Ianson appeared as solicitor advocate for the applicant mother, the father was self-represented, and Mr Quinn appeared as the Independent Children’s Lawyer (‘the ICL’).
The father and mother commenced their cohabitation in 2003, married in 2003 and separated on 20 April 2018.
There are four children of the marriage:
a)X, born in 2005;
b)Y, born in 2006;
c)Z, born in 2008; and
d)W, born in 2010.
At the present time, X and Y live with their father in the former matrimonial home at D Street, Town E, a rural area west of City F in New South Wales. Z and W live with their mother at Suburb G, an urban area near Town H, in New South Wales.
X, who is now 15 years of age, is not spending any time with his mother. Y, who is now 13 years of age, spends each alternate weekend with his mother, from after school Friday until start of school Monday, pursuant to interim consent orders made 20 May 2019.
At the time of the interim hearing in this matter, 27 September 2019, Z and W were not spending any time with their father. Prior to the interim hearing, it had been proposed by the mother, and supported by the ICL, that Z and W spend time with their father at Region J Children’s Contact Centre. The mother attended for her induction interview, but the father did not make any arrangements to engage with that service. He later indicated in a Child Inclusive Conference interview with a Family Consultant that he would like some guidance as to the possibility of other options.
The mother, Z, and W are living in rental accommodation that is also occupied by the maternal grandmother.
The father is in employment and is meeting the parties’ joint financial obligation for payment of the loan accounts secured by mortgage on the former matrimonial home at D Street, Town E. The mother is in receipt of Centrelink benefits, Family Tax Benefit types A and B, and also has some income from self-employment as a therapy aide.
The mother has been diagnosed with mild depression and has been prescribed Zoloft. There is some evidence that the father has had issues with mental health conditions, but a short report, dated 3 July 2019, from Dr K, psychiatrist, asserts in relation to the father that there is “Based on my assessment today, no evidence of mental illness or disorder.” The father is medicated with Sertraline, per Dr K’s report, and Zoloft per the father’s evidence.
X is in Year 9 at L School. Y is in Year 8 at C School. Z is in Year 6, and W is in Year 4 at C School.
Y suffers from juvenile arthritis, joint hypermobility, and has been attending a physiotherapist since he was three and a half years of age. He has regular appointments with Dr M, a rheumatoid specialist, and has weekly pain injections at home.
W was diagnosed with cerebral palsy at four years of age and attends occupational therapy and physiotherapy on a regular basis. Additionally, he has check-ups at N Hospital. National Disability Insurance Scheme funding has been allocated for him and he has home therapy once a week.
I heard interim proceedings between the parties on 27 September 2019. The matter had been set down for the interim hearing with a notation made on 5 July 2019 that the issues were confined to:
a)With whom each of the children should live;
b)What time, if any, each of the children should spend with the other parent; and
c)Whether an order should be made under rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) for the appointment of a child and family psychiatrist as a court expert to prepare an expert’s report for the assistance of the Court on final hearing.
However, the interim hearing also related to the following further issues:
a)The mother’s application that the former matrimonial home at D Street, Town E, should be sold, which was opposed by the father;
b)Whether a separate residence, unoccupied, on the D Street, Town E property should be leased, as sought by the father; and
c)Whether Y should remain at C School (per the consent orders made 20 May 2019), as sought by the mother, or move his school attendance to L School (as sought by the father).
Proceedings up to the interim hearing
These proceedings were commenced by the mother filing an Initiating Application seeking interim orders relating to parenting issues and final orders relating to parenting property issues on 20 March 2019.
The matter had its first return date on 13 May 2019. Orders were made including:
a)For the father to file and serve his response documents,
b)The appointment of an ICL;
c)A Child Inclusive Conference to occur on 8 August 2019; and
d)Setting the matter down for an interim hearing on 20 May 2019 in relation to the issue of the school to be attended by X and Z.
The father filed his Response on 15 May 2019, seeking interim orders relating to parenting and property, and final orders relating to parenting and property.
On 20 May 2019, the matter was before the Court and a number of issues were traversed. Orders were made by consent based on agreements reached between the parents in Court in exchanges with the bench. The orders made by consent on an interim basis were, in summary form:
a)Y to attend his appointment with Dr M, paediatric rheumatism specialist, on 22 May 2019;
b)The father within 24 hours make an appointment for X with Ms O of ‘P Clinic’ at Suburb Q;
c)X to be enrolled by both parents at L School;
d)Y to attend C School and the father to ensure that he is transported to and from school each day;
e)Y to spend to time with his mother from after school Friday till before school Monday each alternate weekend;
f)The parents to do all things necessary to make sure that Y takes his medication;
g)The parents do all things necessary to make sure that X takes his medication;
h)Non-denigration orders affecting both parents;
i)An order restraining both parties from discussing the proceedings with any of the children; and
j)An order under 69ZW for documents to be produced by New South Wales Police and an order under 91B for documents to be produced by the Department of Family and Community Services (as the Department was then named).
The matter was adjourned for further mention and possible interim hearing on 5 July 2019. On 5 July 2019, the matter was mentioned and listed for an interim hearing on 27 September 2019.
The interim hearing proceeded on 27 September 2019.
Material relied upon
The mother relied on the following material:
a)Case Outline document prepared by the mother’s solicitor advocate;
b)Application in a Case, filed 19 June 2019;
c)Notice of Risk, filed 20 March 2019;
d)Affidavit of the mother, sworn 24 September and filed 25 September 2019; and
e)Financial Statement of the mother, sworn or affirmed 27 September 2019 in Court (though filed in blank on 20 March 2019).
The mother also relied upon the following exhibits that had been entered into evidence on 20 May 2019:
a)Exhibit A1 – a letter dated 16 May 2019 from C School, addressed “To whom it may concern” in relation to Y’s attendance at the school;
b)Exhibit A2 – a triage record (institution not named) from 27 November 2018 in relation to all four children, the detailed information relating specifically to X and Y;
c)Exhibit A3 – a City R Mental Health assessment outcome, dated 10 April 2018, relating to observation of both parents and all four children;
d)Exhibit A4 – nursing notes from City F Hospital, made 28 March 2018, in relation to X;
e)Exhibit A5 – progress notes from City F Hospital, dated 19 April 2018, in relation to X;
f)Exhibit A6 – letter, dated 4 April 2019, from Ms S, senior child protection liaison social worker with Region J local health district, to Ms T who is a Department of Family and Community Services case worker; and
g)Exhibit A7 – letter, dated 13 March 2019, from Ms U, school counsellor of C School, addressed “To whom it may concern”.
The father relied on the following materials:
a)Response to an Application in a Case, filed 4 July 2019;
b)Notice of Risk, filed 15 May 2019;
c)Affidavit of the father, sworn or affirmed 15 May 2019 and filed 15 May 2019 with references to annexures, none of which were attached;
d)Affidavit of the father, sworn or affirmed and filed 4 July 2019;
e)Affidavit of the father, sworn or affirmed and filed 26 September 2019; and
f)Financial Statement of the father, sworn or affirmed 15 May 2019 and filed that day.
The ICL, Mr Quinn, relied on the following materials:
a)A Case Outline document; and
b)The Child Inclusive Conference memorandum.
Immediately before preparation of these reasons, I listened to the audio recording of the whole of the interim hearing.
I have carefully read all of the material relied upon by each of the parties and by the ICL.
The orders sought
Submissions were made by Mr Quinn as independent children’s lawyer, by the father on his own behalf, and by Ms Ianson for the mother. Submissions were also made by Mr Quinn in reply following the submissions for the mother and the father, and then further submissions were made in reply by the father.
The orders the mother sought are summarised as follows:
a)That Y, Z and W live with her;
b)That X live with his father;
c)That X spend time with his mother in accordance with his wishes;
d)That Y, Z, and W spend time with their father, supervised at V Counselling, Suburb AA, for not less than two hours per fortnight, the fees of V Counselling, Suburb AA to be paid by the father; and
e)That the former matrimonial home property at D Street, Town E be sold with the proceeds of sale applied to:
i)Discharge the mortgage over the property;
ii)To pay all legal and other costs of sale;
iii)To meet the costs of a single expert’s report; and
iv)The balance to be held upon trust for the parties pending further orders.
The father sought the following orders:
a)The parties lease the property known as the D Street, Town E property and the net income so received be divided equally between the parties;
b)That Y be enrolled at L School commencing term 3 2019;
c)That Z and W spend alternate weekends with the father, being on the weekend when Y is not spending time with the mother; and
d)That the parties be ordered to engage in a Family Dispute Resolution mediation.
Mr Quinn as the ICL indicated the orders he proposed in the course of his submissions, summarised as follows:
a)That X continue to live with his father;
b)That X engage in the Anchor Program with the view to repairing his relationship with his mother;
c)That Y return to live with his mother and spend time with his father on a supervised basis; and
d)That W and Z live with their mother and spend time with their father on a supervised basis.
Mr Quinn concurred with a recommendation in the Child Inclusive Conference memorandum that the Court may benefit from a single expert’s report by a child and family psychiatrist. He noted in submissions that, unless the father was able to fund that report initially, the only prospect of obtaining such a report would be via sale of the matrimonial home and application of a part of the proceeds of sale to funding such report.
The evidence
As I have said earlier in these reasons, I have read all of the materials relied upon by the parties and by the ICL. I have taken into consideration all of the submissions made on behalf of the mother, by the father and by the ICL.
The following particular matters from the evidence are not in contest, unless indicated.
The father is 46 years of age and the mother was 48 years of age at the time of the interim hearing.
The parties commenced cohabitation in 2003, married in 2003, and separated on 20 April 2018.
At the time of the interim hearing, X was 14 years of age, Y was 12 years of age, Z was 11 years of age and W was 9 years of age. Due to the length of time that has elapsed between the interim hearing and the making of orders and publishing of these reasons – for which I make my apology to each of the parties, each of the children, and to the ICL – X is now 15, Y is 13, and Z and W are still 11 and 9 respectively.
The mother left employment shortly before X was born. From then she was engaged fulltime in parenting the children and fulfilling the homemaker role until the parties separated. Following the separation, the father remained living in the matrimonial home. The mother took up residence in rented premises at Suburb G and, initially, the four children went with her.
The separation on 20 April 2018 occurred in circumstances where the father was discharged that day from a 72-hour inpatient stay at City R Hospital mental health unit (while X was an inpatient at the BB Hospital adolescent mental health unit). The mother vacated the matrimonial home before the father arrived home from the hospital.
The marital relationship had been deteriorating in the months leading up to separation. The relationship between X and his mother had also been deteriorating for reasons that remain troublingly unclear on the evidence.
In February 2018, the mother came home to find that X had written on a whiteboard ‘I hate Mum’ and had listed thereunder the reasons why he said he hated his mother. When the mother asked the father why X had written in that manner on the whiteboard, the father is reported by the mother to have responded, “Well, this is how he feels.”
On 27 March 2018, the father contacted the mother to advise her that X had self-harmed by cutting his legs and wrists with glass and that he was being taken to City F Hospital. The mother joined the father there. X remained an inpatient until 3 April 2018 when it was judged by the hospital staff that his mental health had stabilised and he was discharged. The mother contends that the father said to her at the hospital, “I hate you. I know why X hates you” and “How does it feel to give birth to someone who hates you?”
The father’s conduct toward the mother and toward X at the hospital led to the hospital making notification to the Department of Family and Community Services (as the Department was then named). The hospital notes in exhibit A5 indicate that, on one occasion, an attending nurse observed the father laying with his full bodyweight on top of X and holding his hand over X’s mouth. The father advised staff that he had been trying to calm X.
The discharge referral form from City F Hospital directed to X’s general practitioner, Dr CC, notes “X presented to City F Hospital with active suicidal ideation and self-harm from cutting wrists and legs with glass.” The doctor also noted that “His mental state improved throughout admission, until the point Mental Health were happy he was safe for discharge.”
On or about 17 April 2018, the father attended voluntarily at City R Hospital for observation and assessment in relation to his mental health. At about that time, X was also taken by ambulance to BB Hospital and admitted to the adolescent mental health unit. This was arranged during an appointment attended by X and his mother with the adolescent mental health team, at which X said to the team members, “Yes, I am not going home with her because Mum is narcissistic. Dad and I have researched all about it.”
The father was discharged from hospital on 20 April 2018. X was discharged from hospital on 26 April 2018 and returned to reside with his mother.
On 7 May 2018, the father collected X from school and took him to live with him at the former matrimonial home. X has remained living with his father ever since. X has had very little contact with his mother since that time, at most, an occasion or two for a cup of coffee for a duration of about 30 minutes.
In September 2018, the mother was at hospital with Z, who was having an appendix operation, and the father collected Y – whether from the mother’s home or his school is not stated by either of the parties. The mother uses the expression “Mr Bangart picked up Y and most of his stuff”, which bears an implication that the father was collecting him from the mother’s home. Y has lived with the father since that time and spent regular time with his mother up until February 2019. At this point Y ceased coming to spend time with his mother and his brothers Z and W until orders were made by consent on 20 May 2019 for him to spend each alternate weekend with his mother from end of school Friday until start of school Monday. The father asserts that he collected Y and took him to live with him at Y’s request.
Following X’s hospital admission at the end of March 2018 and his further admission in April 2018, the family were involved with the Department of Family and Community Services (as the Department was then named) who made some regular home visits to undertake risk assessments. In a letter, dated 4 October 2018 from the Department of Family and Community Services, it is asserted by Ms DD, the relevant case worker at the Region J response unit of the Department, that “In accordance with our statutory framework, we have now finalised our risk assessment. And the outcome was high.” Surprisingly, the case worker goes on to report that “Family and Community Services will now be closing the case that has been held here in relation to your family.”
The Department referred the matter to Youth Hope to provide case management and support for the family for the next 12 months. On the evidence, this would seem to have been confined largely to weekly assessments for a period of time of X and the father by EE Centre, though no evidence is presented as to the nature of the services undertaken by EE Centre or the result of such assessments.
The father has a new partner, Ms FF, who resides with the father, X, Y, and her son, GG, at the D Street, Town E property. There is no evidence from Ms FF. The mother asserts in her affidavit that:
On 14 August 2019, I spoke with Ms FF, Mr Bangart’s partner, who resides at the D Street, Town E property on the phone. We spoke for an hour. Ms FF said to me words to the effect of: “The relationship between Mr Bangart and X is dysfunctional .... Mr Bangart speaks awful about you in front of the boys .... X does not take his medication regularly and Mr Bangart does not take any medication either.[1]
[1] Affidavit of the mother sworn 24 September 2019, [95].
In relation to the arrangements for getting X and Y to their separate schools, the father gives the following evidence:
I get up each day and deliver X to the bus at 7 am (12 kilometre roundtrip) then deliver Y to school in Town H at about 8.15 am (37 kilometre) and from there, continue to my office in City F to be there at 9 am. I am able to work for six hours until 3 pm when I leave my office to pick up Y from Town H at 3 pm and then X from the bus at 4.30 near home. In order to achieve minimum satisfactory work output, I then need to work an extra 1.5 hours every evening.[2]
[2] Affidavit of the father sworn 26 September 2019. [13].
The property at D Street, Town E, was purchased by the parties during their marriage in the wife’s sole name. The property is security by way of a registered mortgage for a loan account relating to purchase of the property and construction of the home on the property. The loan account is in the joint names of the parties.
I record in these reasons the following evidence from the mother, relating to an event during X’s admission to City F Hospital on 27 March 2018:
X had a reaction to the benzodiazepines which is the sedation they gave him. He was biting himself, eating soap, yelling, doing push-ups, sit-ups and yelling for help. While he was particular [sic] bad, the nurse asked Mr Bangart and I to step into the hallway to give him some space. And she stayed in the room with him. As I was so anxious, I walked back in within two minutes, the nurse had her back to X. And I saw him with the bedsheet wrapped around his neck and hanging from the bathroom door handle. I ran screaming, and the nurse and I lifted him up and undid the sheet. Security was called, and he was given a needle that put him to sleep. He was on a 24-hour suicide watch.[3]
[3] Affidavit of the mother sworn 24 September 2019, [22].
There was agreement between the father, the mother and the ICL at the interim hearing that an interim order would be made for X to continue living with his father.
In the letter of 16 May 2019 by the principal of C School, the principal notes that Y had been a student at the school for the previous three and a half years, and that he was:
A quiet and well-mannered student who applies himself well to his studies. Terms such as respectful, patient, kind and dependable have commonly been used by his various teachers when writing his reports.
The principal also notes:
…I have been concerned with a decline in his attendance at school over the last six months. On 30 November 2018, I flagged this concern with Youth Hope as I had seen similar attendance problems occur with his older sibling and did not want to see Y fall into the same pattern of non-attendance. Unfortunately, this trend has not changed and, to date, Y has not attended school this term with no explanation for his absence.
Four days after the date of this letter, the interim order was made by consent for Y to return to C School and for the father to ensure that he was transported to and from school each day.
At the interim hearing, a letter dated 27 June 2019 from the Department of Family and Community Services was before the court in which the order pursuant to section 61B of the Act, made 20 May 2019, was noted and stating that:
Community Services has decided not to intervene in the proceedings at this time. Community Services is aware that X and Y are currently in the care of their father … and Z and W are in the care of their mother … pending further orders by the court.
and “X was assessed as safe in the care of Mr Bangart on 6 September 2018.”
The Child Inclusive Conference memorandum to Court
The following extracts are from the Family Consultant’s notations in the Child Inclusive Conference memorandum to Court:[4]
[4] The following italicised paragraphs are quoted from the Child Inclusive Conference memorandum to Court, 8 August 2019.
· There is a distinct lack of trust between the parents;
· Ms Bangart said that Z knows there is something “not quite right” with his father and does not want to spend time at his father’s home, but that W would be happy to spend time with his father;
· X initially stated that he did not want the Family Consultant to refer to his mother as his “mother” or “Mum”, as he does not consider her to be his mother. X seemed to relax on this issue throughout the interview, with both him and the Family Consultant using those terms;
· X said clearly and repeatedly that he wants to live with his father and that he does not want any orders in place for him to spend time with his mother;
· Y lives with his father and spends alternate Fridays to Monday with his mother (in accordance with consent orders made on 20 May 2019);
· Y said that he wants to remain living with his father. He said that he does not want to live with his mother. He said that he would like to spend time with his mother “when I feel like it”. He said that, if there must be orders, he would like to spend three nights per fortnight with his mother, but that he would like to be able to choose which nights on a fortnightly basis;
· Z lives with his mother and spends no time with his father;
· Z said that it is “hard” not living with X and Y, as they were his role models. However, he seems to have lost some of that respect for his older brothers, and he perceives that X created instability in the family;
· Z stated that he wants to live with his mother. He said, “I love living with Mum”;
· Z indicated that he loves the house at D Street, Town E, as he lived there since he was a baby, but that he does not want to go there because it is “not the same” since his father “changed”;
· Z said … he misses his father and his brothers;
· Z said that he wants to see his father, once his father has “changed”;
· W lives with his mother and spends no time with his father;
· W said that he was “really excited” to see his father in the waiting room, and that he hugged his father and X. W wanted to say goodbye to his father prior to leaving and again hugged him;
· W said that it makes him “sad” that he does not see X and Y very much and that he would like to see them more;
· W indicated that he would like to live with his mother;
· W indicated that he would like to spend time with his father, at his father’s home in D Street, Town E;
· Given [X’s] age and his history of instability, it seems that significant weight will need to be placed in his views;
· Y seems to have reasonably positive relationships with both parents;
· Y seems to be happy to spend time with both of his parents, but at the moment has a preference to live with his father;
· Whilst he would like to make decisions on a fortnightly basis regarding how much time he might spend with each parent, this is not advisable for Y at this stage. Given the potentially distorted parenting behaviours of one or both parents, this would place Y under immense pressure to continuously have to choose which parent he would spend time with;
· W seems to perceive all of his relationships with both parents and his three brothers positively, and would like to spend time with everyone;
· In the interim, all four children likely need to be given the opportunity to have a relationship with each of their parents and with each other, particularly if the current situation continues whereby two of the children are living with each parent;
· It is unlikely that X spending time with his mother against his wishes would be of any benefit at this stage;
· W would be happy to spend time with his father. Z would have some hesitation, but if he were able to spend time with his father without any problems, this hesitation would likely decrease;
· It is a concern that Z appears to have turned against his father post separation, and this might indicate the need for both Z and W to spend time with their father, in order to maintain a realistic perception of him;
· If Z and W were to be exposed to their father denigrating their mother or manipulatively enticing them to live with him, it would perhaps indicate the need for their time with their father to be limited and possibly supervised;
· If either parent is intentionally, or subconsciously, using emotionally, manipulative and coercive means to influence the children against the other parent or to entice the children to their home, the children will suffer irreparable psychological harm;
· [The children] are likely to require intensive therapeutic support from a counsellor who is able to conduct family therapy with the parents (and children), post separation; and
· The Court may benefit from a single expert report by a child and family psychiatrist.
The law – parenting proceedings
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[5]
[5] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[6] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[6] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[7] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[8]
[7] Family Law Act 1975 (Cth) s 65D(1).
[8] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [9]
[9] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[10]
[10] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[11]
[11] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[12] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[13]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[14]
[12] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[13] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[14] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[15]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[16]
[15] Grella & Jamieson [2017] FamCAFC 21.
[16] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[17] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[18] Napier & Hepburn,[19] Xson & Page,[20] Deiter & Deiter,[21] and Eaby & Speelman.[22]
[17] M & M (1988) FLC 91-973.
[18] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[19] Napier & Hepburn (2006) FLC 93-303.
[20] Johnson & Page (2007) FLC 93-344.
[21] Deiter & Deiter [2011] FamCAFC 82, [61].
[22] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[23] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[24]
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[25] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[26]
[23] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[24] SS & AH [2010] FamCAFC 13, [100].
[25] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[26] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ), [19].
Section 60CC – the primary considerations
The primary considerations are the benefit to each of the children of having a meaningful relationship with both of their parents and any need to protect any of the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[27] Subsection (2A) mandates that the Court is to give greater weight to the consideration of any need to protect any of the children from harm over the benefit to each of the children of having a meaningful relationship with both of their parents.
[27] Family Law Act 1975 (Cth) s 60CC(2).
X and Y have a relationship with their father of such nature that they express a strong wish to remain living with their father rather than their mother. X expresses a wish only to spend time with and interact with his mother on his own terms, whilst Y indicates his willingness to spend time with his mother.
The exact nature of the relationships between X and each of his parents and Y and each of his parents cannot be assessed so as to found any findings on the evidence available on the interim hearing. It would seem plain that the relationship between X and his father and the relationship between Y and his father is a more stable relationship at the present time than the relationship of either child with their mother.
Generally, it is very much in a child’s best interest to have a meaningful relationship with both parents unless there is some aspect of a relationship with either parent that presents such an unacceptable risk that the probable detriments represented by the risk outweigh the benefit of the meaningful relationship.
The concentration here is on Y as it is agreed at the time of the interim hearing that X will remain with his father under interim orders. Pursuant to the orders made on 20 May 2019, Y spends time with his mother and his two younger siblings each alternate weekend, from the end of school on Friday till the start of school on Monday. There was nothing presented in the evidence at the interim hearing on 27 September 2019 to indicate that such time had not been taking place or that there was any difficulty being experienced in relation to such time between Y, his mother, and his younger siblings in the four months between the order and the interim hearing.
It is asserted by the mother, and impliedly supported by the ICL, that there is an unacceptable risk to Y in remaining living with his father in that there is a probability that the father will bring influence to bear on Y so as to alienate him from his mother in the same way that, the mother alleges, X has been alienated from his mother since before the parties separated. However, the absence of any evidence of a deterioration in the relationship between Y and his mother between the 20 May 2019 orders and the 27 September 2019 interim hearing would seem to indicate that such is not occurring at the present time. Were there to be such evidence, then it would weigh heavily in favour of an interim order that Y return to live with his mother and spend only supervised time with his father.
I will now consider whether there is any unacceptable risk in Y returning to live with his mother. Y has expressed a strong and unequivocal wish to remain living with his father. He was collected from his mother’s home by his father in September 2018 and has remained living with his father ever since even though he has had ample opportunity since that time, both through the Child Inclusive Conference interviews and through the alternate weekends he spends with his mother, to express any wish to change his living arrangements. Accordingly, if interim orders were made for Y to live with his mother pending a final hearing, then, given that he is now 13 years of age, there is a risk that must be acknowledged that he would make whatever moves he can to return to his father’s care.
The nature of the relationship between each of Z, W, and their father cannot be the subject of any meaningful findings at the present time given that they have not spent any time with him from some time in 2018 until the interim hearing in September 2019, and presumably thereafter. Their interview comments reported in the Child Inclusive Conference memorandum indicate that W still has a loving relationship with his father and that W wants to spend time with him at his father’s home. Whilst Z was more ambivalent about spending time with his father, to the extent of saying that he does not want to go there because it is “not the same” since his father “changed”, he also said that he misses his father and his older brothers. He said that he wanted to see his father once his father had “changed”.
The risk for Z and W in spending time with their father is the same as that asserted by the mother for Y, that they will be influenced by their father, and perhaps their brother X, in such manner as to alienate them from their mother.
I will now consider if appropriate orders could mitigate such a risk. A possible mitigation on this interim basis, when it is not open to the Court to make any findings in relation to the assertions of the parents, one against the other, including alienation, is the injunction already made on 20 May 2019 restraining each of the parents from discussing the proceedings in any way with either of the children or allowing anyone else to do so. Further injunctive relief restraining the father from instituting or maintaining any conversation with W or Z on the subject of the parent with whom they would like to live could also be appropriate.
The element of unacceptable risk would have needed more detailed examination in relation to X if there were a contest between the parents on the interim hearing as to where X would live. Just because the parents do not put that in contest, does not make it an issue that can be ignored by the Court if it is plain that it is in the best interests of a child for an order to be made contrary to what either of the parents contend (so long as such a proposed order is made plain with the parties so that they have an opportunity to make submissions). However, as serious as X’s circumstances have been – and in that, I refer to the incident described above when he was in the process of self-harming whilst in hospital – it is my finding that the balance of risk in relation to X staying with his father pursuant to orders as against being ordered to live with his mother favours him staying with his father.
Section 60CC – the additional considerations
I detail the views expressed by each of the children as reported in the Child Inclusive Conference memorandum to the Court above.[28] They may be simply summarised as:
a)X wishes to remain living with his father and to interact with his mother only on his own terms;
b)Y wishes to remain living with his father and to spend time with his mother, but for about three days per fortnight at times of his own choosing;
c)Z wishes to remain living with his mother and is somewhat ambivalent about spending time with his father; and
d)W wishes to remain living with his mother and would like to spend time with his father at his father’s home.
[28] Family Law Act 1975 (Cth) s 60CC(3)(a).
X is 15 years of age. He was 14 years of age at the time he expressed the views reported in the Child Inclusive Conference memorandum. Given X’s mental health history over the past two years, his close attachment to his father and his antipathy (as expressed by him – real or otherwise cannot be known yet) toward his mother, his views must at the moment be given significant weight.
Y is 13 years of age and was 12 years of age when he expressed his views as reported. Those views should be given significant weight, particularly as he has been in his father’s care for 22 months and there does not seem to have been any problem that has arisen during his alternate weekends with his mother.
Z was 11 years of age and W 9 years of age when they expressed their views as recounted in the Child Inclusive Conference memorandum to the Court. Their views should be given some weight.
The evidence does not particularly assist me in considering the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to each of the children, to spend time with each of the children and to communicate with each of the children.[29] The exception is the opportunity that was open to the father, on the evidence, to be able to spend some time with Z and W at a children’s contact centre simply by engaging in the induction interview process and meeting any fee presented.
[29] Family Law Act 1975 (Cth) s 60CC(3)(c).
The father presented no evidence that the fee was a barrier, but he made no step to engage with the process and take advantage of the opportunities on a ‘something is better than nothing’ basis. However, that circumstance certainly does not tell against the father spending time with Z and W if it is otherwise appropriate in their best interests.
Inferentially, the financial support for X and Y is provided by the father. The financial support for Z and W is provided by their mother. Neither party pays or receives child support.[30]
[30] Family Law Act 1975 (Cth) s 60CC(3)(ca).
A likely effect of a change in X’s circumstances by the making of any order (not sought by other parties) that he go to live with his mother could well be catastrophic given his past behaviour. Such an order would, at present, not be in his best interest.
A likely effect of a change in Y’s circumstances by an order that he go and live with his mother and spend time with his father would be that he would feel that his wishes were being ignored.[31] If there is any basis in the assertions of the mother in relation to the influence she asserts has been brought to bear on both X and Y by their father, it may well lead to Y blaming his mother for such an order and work to the detriment, at the present time, of the mother/son relationship.
[31] Family Law Act 1975 (Cth) s 60CC(3)(d).
The likely effect of a change in Z and W’s circumstances by an order being made that they spend time with their father is that they can resume their relationship with their father and, as suggested by the Family Consultant, the ambivalence Z expresses about spending his time with his father may very well be cured and dispelled if such time is enjoyable and he feels safe and secure that he will be returning to his mother’s care on each occasion at the end of the time. Such a circumstance would be very much in the best interests of Z and W provided there is no instance whatsoever of their father “intentionally, or subconsciously, using emotionally manipulative and coercive means to influence the children against” their mother as such conduct by the father would lead, as the Family Consultant strongly points out, to Z and W suffering irreparable psychological harm.
If orders are made for Z and W to spend time with their father, and evidence emerges of conduct of that nature by their father, then it would begin to become clear that their best interests may require that any time they spend with their father be closely supervised.
I have no evidence in relation to any practical difficulty or expense involved in any of the children spending time with or communicating with the parent with whom they do not live.[32]
[32] Family Law Act 1975 (Cth) s 60CC(3)(e).
This is a matter where the parenting capacity of each of the parents is very much in issue given the assertions made by each against the other.[33] The mother presents evidence of neglect of the children in the care of the father, an assertion that finds some incidental backing in Z’s comment reported in exhibit A7 by his school counsellor that, when he stayed with his father, his father did not give Y his medication which caused Y to cry because of the pain in his legs. Other than this, the cross-accusations of lack of parenting capacity are contested evidence.
[33] Family Law Act 1975 (Cth) s 60CC(3)(f).
It is not open to the Court to make a finding on those cross-accusations at the present time. However, I find that it is appropriate to make an order that each of the parents administer any medicine prescribed for any of the children in accordance with the directions of the prescribing health practitioner.
Once again, the attitude of each of the parents to each of the children and to their responsibilities of parenthood is hard to assess and to make findings about based on the presented evidence, given that so much of the evidence is contested, and the accusations of one parent being vehemently denied by the other.[34] Under this consideration, as under several of the others, this is a matter where the best ‘holding pattern’ on the available evidence in the best interests of the children must be found pending a final hearing with the full evidence, including, if possible, expert evidence and the thorough testing of the evidence.
[34] Family Law Act 1975 (Cth) s 60CC(3)(i).
The mother asserts that she has been the victim of family violence.[35] While she does not detail specific incidents on the part of the father and does not detail behaviour by him that amounts to coercive or controlling conduct, she asserts in her affidavit that she was referred to therapeutic assistance by Victim Services due to her relationship with the father. Victim Services categorised that behaviour as family and domestic violence.[36] On the basis of the evidence before the Court at the interim hearing, I cannot make a finding that either of the parents engage in family violence within the meaning of that term in section 4AB of the Act.
[35] Family Law Act 1975 (Cth) s 60CC(3)(j).
[36] Affidavit sworn by the mother on 24 September 2019, [86].
There is no evidence of any family violence order being made and, though there is evidence of involvement of the police with the parties at about the time of separation,[37] it is noted that such involvement was requested on occasions by each of the parents and, though an order under section 69ZW was made on 20 May 2019 and documents were produced to the Court by New South Wales Police pursuant to that order, no material was tendered into evidence at the interim hearing.
[37] Family Law Act 1975 (Cth) s 60CC(3)(k).
After consideration of the primary and additional considerations, I find that it is in the best interests of X that he remain living with his father on the interim basis and that no specific order be made for him to spend time with his mother other than that he spend time with and communicate with his mother in accordance with his wishes. That puts the matter in X’s hands. It is hoped that he will recognise that he is not being forced or pressured, and that he will choose to reopen his relationship with his mother in a way and in circumstances that are comfortable for him.
I find that it is in Y’s best interests on the interim basis that he remain living with his father and that he continue to spend time with his mother each alternate weekend from Friday to Sunday and that he continue to attend C School and not change to L School. In that regard, I note Y’s comments on the issue of school, reported in the Child Inclusive Conference memorandum:
Y said that, in the first term of 2019, he wanted to attend L School, but that, now, he feels settled at C School. Y said that he would not mind if he transferred to L School, but that he has “no opinion” at this stage regarding which high school he should attend.
I find that it is in the best interests of both Z and W to remain living with their mother, which was not in contest on interim hearing. I find that it is in their best interests that they commence spending time with their father each alternate weekend on a graduating basis over a fairly short time such that they are soon spending each alternate weekend, from after school on Friday until the start of school on Monday, with their father, on the same weekend that Y is not spending time with his mother. That circumstance places Y, Z and W together all of one weekend and X, Y, Z and W altogether on the other weekend.
No specific orders were sought by either parent in relation to school holiday time. As the mother sought that any time spent between the father and Y, Z and W be supervised at V Counselling, Suburb AA, it is explicable that she did not seek any specific order relating to school holidays. In relation to the father, he sought time with Z and W each alternate weekend, but no increased time during school holidays.
On the interim basis, I find that it is in the best interests of the children that a consideration of school holiday time be left till at least the time Z, in particular, and W spend time with their father during alternate weekends and have had time to settle whereby any problems that are going to arise therein have had an opportunity to manifest. It may be that the issue of school holiday time will not be dealt with until a final hearing.
Section 61DA – parental responsibility
On the evidence before the Court on the interim hearing, there are no reasonable grounds to believe that either parent has engaged in abuse of any of the children or family violence. Accordingly, the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them applies unless I consider that it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.[38]
[38] Family Law Act 1975 (Cth) s 61DA.
The relationship between the parents is somewhere between poor and non-existent. The family report writer notes:
Each parent appears to feel that the other parent is mentally disturbed in some way, which causes them to manipulate and emotionally harm the children. The parents appear to have had these concerns for some time prior to their separation. There is a distinct lack of trust between the parents.
I cannot see a basis on which these parents could currently consult together, even by the remotest means of communication, in relation to making decisions about major long-term issues for any or all of the children or to make any genuine effort to come to a joint decision about such issue.
I find that it is not appropriate in the circumstances for the presumption to be applied on the interim basis. Accordingly, the issue of parental responsibility will remain governed by section 61C of the Act with each parent having parental responsibility for the children.
As an order will not be made that the parents have equal shared parental responsibility for the children, I do not need to consider the specific matters referred to in section 65DAA of the Act relating to equal time or substantial and significant time.
The property issue
The orders sought by the mother for the sale of the D Street, Town E property were on two bases. Firstly, to prevent any further wastage of the parties’ equity in the property consequent upon any failure to make payments as required by the financial institution on the loan account secured by mortgage on the property. The father asserted that the property was not in danger of passing into the possession of the mortgagee under the terms of the mortgage as he had satisfied the bank as to arrears and would maintain payment. The husband did not present any evidence of his assertion at the interim hearing, but made the assertion in his submissions.
Secondly, the mother sought the sale so that funds would be available for payment of fees associated with the obtaining of an expert’s report by a child and family psychiatrist for the assistance of the Court on final hearing.
I find that there is currently insufficient evidence to justify an interim order for sale of the former matrimonial home on the basis of current or possible wastage through mounting arrears on the loan account and consequent loss of equity in the property. However, if such evidence comes before the Court in this matter pending final hearing, then the issue of a sale of the matrimonial home property at D Street, Town E on that basis will be reconsidered by the Court.
I do find that this is a matter where an expert report, prepared by a child and family psychiatrist, is essential to assist the Court to determine what parenting orders are properly to be made on a final basis in the best interest of each of the children. During the father’s submissions, I asked how an expert’s report could be paid for, pointing out that the mother would not have any capital sum required toward such payment until she got her money from the sale of the matrimonial home, and the father responded, “I will pay for it”, though later in his submissions, he expressed the view that an expert’s report was not needed.
I find that it is appropriate to make an order that an expert’s report be prepared by a child and family psychiatrist identified and engaged for that purpose by the ICL, with payment to be made in the first instance by the father. Any contribution by the mother is to be a matter for consideration on final hearing. Such payment is to be paid by the father into the ICL’s trust account prior to commencement of the interview process by the selected expert, and that failing such payment by the father, the D Street, Town E property is to be sold by the mother and, after deduction of moneys to release the security by repayment of the loan account and payment of all costs and expenses of sale, the funds are to be applied from the proceeds to pay for the expert’s report. The balance of the proceeds of sale are to be retained upon trust for the parties pending final determination of their property settlement issues.
In view of the orders that I intend to make in relation to a sale of the D Street, Town E property if the funds for an expert’s report are not available from the father on demand I find that it is not currently appropriate to make the order sought by the father in relation to leasing a part of the D Street, Town E property. The parties may wish to reconsider that issue themselves in terms of the orders I will make if the father is able to make the payment for the expert’s report.
Accordingly, I make the orders as set out at the beginning of these reasons.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 3 August 2020
Key Legal Topics
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Family Law
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Property Law
Legal Concepts
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Expert Evidence
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Jurisdiction
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Remedies
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