Beaudrie and Beaudrie

[2010] FamCA 1210

FAMILY COURT OF AUSTRALIA

BEAUDRIE & BEAUDRIE [2010] FamCA 1210

FAMILY LAW – PROPERTY – interim property settlement – whether or not the consent orders that provide for interim property settlement should be discharged
FAMILY LAW – CHILDREN – Child related proceedings – interim parenting – whether the periods of time spent between the father and the children should be supervised
FAMILY LAW – COSTS – the general principle – weight given to relevant matters

Family Law Act 1975 (Cth) ss 117(2); 117(2A)

Penfold v Penfold (1980) FLC 90-860

APPLICANT: Ms Beaudrie

RESPONDENT: Mr Beaudrie

FILE NUMBER: SYC 2259 of 2010

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 15 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: J. Levy

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: M. Anderson

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly Family Lawyers

Orders

Interim property settlement orders made 15 December 2010

1. That the husband cause to be paid to the solicitors for the wife the sum of $40,000.00 forthwith upon payment by him of that proportion of the settlement proceeds of sale of the former matrimonial home referred to in Order 5.6.2 of the Orders made by consent on 10 May 2010 by way of the wife’s costs.

2. That the applications of each of the parties for other orders by way of variation of orders in relation to interim property settlement and/or spouse maintenance are dismissed.

3. Costs reserved.

NOTATION:

A.A minute of interim parenting orders reflecting the ex tempore judgment given today will be prepared by the legal representatives for the parties and emailed to the Associate to Justice Rose by 4.00pm 16 December 2010 and orders will

B.The Court notes the husband’s Undertaking dated 15 December 2010 in relation to parenting orders.

Interim parenting consent orders made in chambers 23 December 2010

The court makes orders by consent in terms of the following Order 1, and further orders and notations upon application to the court and hearing Mr Levy of counsel for the mother and Mr Anderson of counsel for the father, in terms of orders 2 to 4:

1. That pending further Order, E and A spend time with the father as mutually agreed in writing from time to time and failing agreement as follows:

   1.1      during school term:

   1.1.1from 6.00pm on Thursday until 5.00pm on Sunday in week one (and for the avoidance of doubt, if the father has the last weekend of the prior term, the mother will have the first weekend of the next term);

   1.1.2from 6.00pm on Wednesday until 9.00am on Friday in week two;

   1.1.3    in week one:

   (a)the father collects the children from the mother’s residence at 6.00pm on Thursday nights;

   (b)     the father takes the children to school on Friday mornings;

   (c)the mother delivers the children to the father’s residence no later than 6.00pm on Friday nights;

   (d)the father delivers the children to the mother’s residence at 5.00pm on Sunday.

   1.1.4    In week two:

   (a)the wife delivers the children to the father’s residence at 6.00pm on Wednesday nights;

   (b)the father takes the children to school on Thursday mornings;

   (c)the father collects the children from the mother's residence at 6.00pm on Thursday nights;

   (d)the father delivers the children to school on Friday morning.

   1.2In relation to the 2010/2011 Christmas/New Year school holidays, the children spend time with the father as follows:

   1.2.1From 6.00pm on 22 December 2010 until 10.00am on 24 December 2010;

   1.2.2From 6.00pm on 25 December 2010 until 6.00pm on 27 December 2010;

   1.2.3From 6.00pm on 29 December 2010 until 6.00pm on 1 January 2011;

   1.2.4    From 6.00pm on 3 January 2011 until 6.00pm on 8 January 2011;

   1.2.5From 6.00pm on 20 January 2011 until 6.00pm on 27 January 2011;

   1.2.6    In relation to 1.2.3 – 1.2.5:

   (a)The mother shall collect the children from the father at his Sydney residence at 6.00pm on 1 January 2011 and return the children to the father at 6.00pm on 3 January 2011;

   (b)The mother shall collect the children from the father's Sydney residence on 8 January 2011;

   (c)The father will collect the children from the mother's residence at 6.00pm on 20 January 2011 (except E who will be attending a rowing camp) and return the children to the mother's residence at 6.00pm on 27 January 2011.

2. That the mother's oral application for the time the children spend with the father to be supervised, is dismissed.

3. That the mother have liberty to apply, on 3 days notice to the Court and the father, to seek a stay of the above Orders in the event of a breach by the father of the Undertaking referred to below.

4. On or before 4.00pm on 22 December 2010, the husband's solicitors shall provide to Professor P and Dr O, copies of Affidavits filed by each of the husband and the wife in these proceedings in relation to parenting matters, and a copy of the covering letter shall be provided to the wife's solicitors.

5. It is NOTED that the Court accepted the husband's signed written undertaking given on a without admissions basis.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2259 of 2010

MS BEAUDRIE

Applicant

And

MR BEAUDRIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 May 2010 interim orders were made by consent by Judicial Registrar Johnston (as he then was).  Those orders provided, inter alia, for the sale of the former matrimonial home, the manner in which the sale proceeds were to be applied, spousal maintenance to be paid by the husband to the wife in the sum of $5,000.00 per calendar month and liability for him to meet certain health outgoings, as well as other outgoings in relation to the former matrimonial home and the wife’s car.  In addition, orders were made by consent for child support.  An injunction was granted without admissions, binding each of the parties from denigrating the other to or in the presence of any third person.

2. By her Amended Application in a Case for urgent interim orders filed 15 November 2010, the wife sought orders for discharge of certain of the consent orders, payment of further amounts for accommodation for the wife which can only be in the nature of spousal maintenance, payment of arrears of spousal maintenance and child support, costs and for the parties to engage in a course as described being offered by Relationships Australia.

3. The application is opposed by the husband by his Amended Response filed 10 December 2010.  He seeks orders that the wife’s application be dismissed and that, in the circumstances described in paragraph 2 of the Response, that certain further orders made on 10 May 2010 be discharged and there be what is described as a rehearing and redetermination of the parties’ competing applications for interim orders.  In addition, interim parenting orders are also sought by him.

4. I will proceed to deal with the parenting issues first.  That matter, together with the other issues to which I will refer, will be the subject of truncated reasons for judgment against a background where I am hearing the Amended Application and the Amended Response as part of a duty list which proceeded to be heard on the Papers followed by counsel’s submissions.  Leave was not sought to cross-examine either of the parties.

Interim parenting issues

1. There are two children of the marriage being E born in April 1996 and A born in August 1999 (“the children”).

2. So far as the parenting orders are concerned, the parties reached agreement as to the periods of time that the children of the marriage are to be in the care of the husband and that the husband’s accommodation at the relevant time will no longer be in B, but rather the point of collection of the children by the wife will be from his current residential premises.

3. The issue that remained was whether or not it is in the best interests of the children that the periods of time that the husband will have with the children be supervised and if the conclusion is in the affirmative, who it is that will carry out the supervision.

4. The case for the wife, in relation to supervision, is that the husband has had several months at least of serious mental or emotional issues with some evidence of threats of suicide, erratic behaviour and ultimately was compelled to take, what is described as “compassionate leave” by his employer due to his standard of work and manner of relationship with others in the employer organisation being regarded by the chief executive officer as unsatisfactory.  A term and condition of that leave was for him to consult an eminent psychiatrist, Professor P.  The position in terms of his employment is a matter for review early in about February 2011.

5. The wife also has set forth in her affidavit material with precision a number of episodes, reported in part by one or both of the children, of the husband being intoxicated and behaving in a manner which has caused them distress.

6. In addition, the wife’s affidavit material also sets out with precision a number of instances of abusive verbal behaviour by the husband to the wife, as well as his manner in that regard being exemplified in other material as demonstrated by the transcript of an SMS message sent by him to her in November 2010, subsequent to orders made by consent on 10 May 2010 which prohibited him from engaging in behaviour of that sort.

7. The husband’s case is that he denies the allegations of intoxication in the circumstances as described in the wife’s material.  He also denies verbally abusing her as alleged.  In his affidavit filed 10 December 2010 the husband annexes reports from Professor P and his treating psychiatrist, Dr O being Annexures “N” and “O” of the husband’s affidavit.  The reports are recent reports. 

8. The substance of those reports are, that whilst the diagnosis does not suggest any “formal psychiatric condition” he has been subject to a number of undefined stressors which have been continuing.  Professor P expressed the opinion that he did not have any concern “about his capacity to be actively involved as a parent with his children”, although of course qualified by the phrase “during the time that I have seen him”.

9. The husband’s treating psychiatrist, Dr O, refers to what he described as “mood problems”, but which he described so far as his mood state is concerned as being “generally good and is being appropriately managed with a combination of medication and supportive psychotherapy”.  Dr O then concluded “based on discussion with him” that the husband was a caring and responsible parent who had sound relationships with the two children and “poses no danger to their health and welfare”.

10. During the course of submissions I raised with counsel the obvious qualification in the psychiatrists’ reports, namely that their opinions are based on the history given by the husband and no doubt their own observations.  It is a reasonable inference that they have not been informed of the detailed allegations of the husband’s conduct to which I have earlier referred as set out in the wife’s affidavits.

11. Counsel raised with me the proposition that the psychiatrists did not refer to any suicidal ideation and that this in turn suggests a lack of a full history of the husband’s actions over the last approximate period of 12 months.

12. Whilst that is a cogent submission, I do not accept it because Professor P in particular, not to mention the husband’s treating psychiatrist, would have been failing in their professional obligations to not to provide such a diagnosis if it was clear to them that it was warranted.

13. Consequently, whatever might have been the husband’s mental state at the time referred by the wife in her affidavit material, I infer that such a state did not exist during the periods of consultations between the husband and Dr O or his consultations with Professor P, as otherwise their professional responsibility and integrity should have led them to refer to suicidal ideation in their reports.

14. I am left in the position where there is no other expert evidence from any person of the same or similar qualifications and experience. The child responsive programme memorandum is authored by a family consultant and there is no suggestion that the family consultant had medical qualifications and clinical experience.  In those circumstances I give considerable weight to the expert reports of Professor P and Dr O.

15. I did however, raise with counsel for the husband the possibility of there being a term and condition for any parenting orders that were made, that the husband be restrained from consuming intoxicating liquor during all periods of time that the children are in his care and for 24 hours prior thereto.

16. At first an undertaking was proffered without admissions which was not in those absolute terms.  Rather, it was on the basis that the husband would not consume intoxicating liquor whereby he was exceeding the level for prescribed content of alcohol in accordance with the Road Transport Regulations.  It was submitted to me that this type of qualified undertaking was because of him denying the allegations and secondly because of “this time of the year”.

17. I raised with counsel that it was a matter of priorities and if the husband was indeed sincere and dedicated to ensuring that he had periods of time with his children, free from any suggestion of him being affected by intoxicating liquor, then one might have expected an unqualified undertaking.  Further instructions were obtained.  Ultimately, an unqualified undertaking was filed in court.  I will accept the undertaking.  I rely upon the husband’s legal representatives to provide appropriate advice to the husband, of the consequences in the event that such an undertaking is breached.  The husband should understand that an undertaking to the Court, as opposed to an undertaking between parties to litigation, has the same status as a Court order.

18. Consequently, if there is a breach of the order and that breach is wilful or contumacious, it may result in successful contempt proceedings being brought against him which may result then in dire consequences, including a term of imprisonment.  Hopefully, that type of issue will not have to be visited in any subsequent proceedings as the parties have been under a great deal of stress due to their own individual health issues, not to mention the pressures of the litigation and the imminent sale of the former matrimonial home.

19. So far as supervision is concerned, it also raises the question of who potentially would be the supervisor.  It was submitted that the potential supervisor could be the husband’s female friend or a member of his family who was not identified.

20. The difficulty I have with that approach is that there is no evidence before me of any of those people consenting to be a supervisor, let alone their knowledge of the responsibilities that such a role entails.  It would be an inappropriate exercise of the power to make such an order to in effect foist upon any of them the responsibilities of supervision in the absence of consent and knowledge of the obligations that such a role carries with it.

Conclusion

1. I consider that the wife has made out a substantial case for supervision.  However, I do not consider it in the best interests of the children on the evidence before me, albeit untested, that such an order be made for these reasons.

2. The husband has fulfilled his obligations towards the children, generally speaking, since separation in terms of periods of time with them, albeit on occasions cancelling arrangements; payment of child support, although at times allegedly in arrears; undertaking medical consultations to deal with what seemed to be the symptoms of depression and/or stress and ultimately, providing an undertaking without admissions which is unqualified so far as non-consumption of alcohol during periods that the children are in his care and for 12 hours prior to such periods.

3. I had raised with counsel that in the event that I made an order for periods of time on an unsupervised basis, that to alleviate so far as possible ongoing anxiety by the wife and perhaps both or either of the children, of whether or not the husband might return to past unacceptable behaviour in terms of consumption of alcohol and/or denigration or abuse of the wife, that she could have leave to make an application to suspend all orders for periods of time to be spent by the husband with the children on short notice, such as three days notice.

4. Counsel for the husband did not make any submission in opposition to such a term of an order being imposed.  I will make such an order.

Interim property settlement issues

1. With respect to interim property settlement proceedings, the issue to be decided is whether or not the consent orders that provide for interim property settlement should be discharged, as sought by the wife and in the event that that application was successful, as further sought by the husband.

2. The case for the wife is that the husband had not made a full and frank financial disclosure in that he has received bonus payments of significant amounts pursuant to his employer’s bonus scheme.

3. In addition, the former matrimonial home has been sold for a price that was less than the contemplation of the parties when the consent orders were made and the husband’s overall financial position is far superior to that of the wife.

4. Further, it is also contended that he has not provided a full accounting of the use of all of the funds at his disposal, as opposed to an accounting of bonuses paid in the second half of this year and has also failed to meet his obligations for payment of mortgage instalments in relation to the former matrimonial home.

5. I am not satisfied that the husband has failed to make a full and frank financial disclosure.  The evidence before me demonstrates that the wife was aware of this bonus scheme and that the husband had indeed received payments pursuant to it prior to the consent orders being made.  There is no evidence of substance before me that at the time when those orders were made the husband had failed to make a full and frank financial disclosure.

6. It is submitted on the wife’s behalf that the husband had represented that he would not be receiving payments implicitly in the subsequent half of this year.  That allegation is denied.  Part of the difficulty on the hearing of an application on an interim basis such as this in a duty list is that certain of the material allegations made by one party or the other cannot be tested by way of cross-examination.

7. Consequently, I am not in a position to make a finding on the basis of the wife’s allegation.

8. However, the husband has set out in his affidavit material the amounts of bonuses that he has received subsequent to the consent order and the manner in which those funds have been applied.  With regard to non-payment of mortgage instalments, quite clearly that did occur.

9. It is common ground that a moratorium was provided by the lender on certain terms.  Whilst that moratorium has expired on the basis that it was originally provided, an extension appears to have been granted in that the lender has accepted that all moneys due and payable to the lender will be paid from the proceeds of sale of the former matrimonial home.  Settlement of the sale is due to take place this Friday, 17 December 2010.

10. With regard to the issue of the husband’s far greater financial position compared to the wife, there is no question that that is the case.  However, that was the case prior to the consent orders being made.  It must not be forgotten that the wife was legally represented when the consent orders were made and notwithstanding her knowledge, such as it may have been, of the husband’s financial position and the bonus plan to which I have referred, the consent orders were considered appropriate to be entered into.  The consent orders are by way of interim property settlement only.  Consequently, issues which can be more fully investigated and tested as to the husband’s financial position and the manner in which he has utilised his income and other funds at his disposal can be pursued by competent, experienced legal representatives on the wife’s behalf when the substantive trial takes place, in the event that the parties have not settled these proceedings beforehand.

1. It is strongly submitted on the wife’s behalf that it is necessary to preserve funds, so far as it is possible to do so, emanating from the settlement of the sale of the former matrimonial home due to the husband having had at his disposal relatively large amounts of money which have not been fully accounted for and which implicitly do not point to other assets having been accumulated.  That is also against the background that mortgage payments were not made when, on the face of it, the husband clearly had the capacity to make such payments.

Conclusion

1. For the reasons previously stated in terms of the wife’s knowledge of and legal representation so far as the financial matters were concerned which ultimately led to the consent orders being made and the ultimate agreement being reached by the lender so far as a moratorium was concerned, I am not persuaded that the funds that the husband should receive should be part of the funds which are to be invested to await final orders or further agreement between the parties.

2. The husband is due to receive the minor proportion of the proceeds of sale.  There will be a further sum counsel calculated as being approximately $124,000.00 to be invested.

3. In addition, the husband has very considerable superannuation entitlements of the order of about $754,000.00 which could be the subject of a splitting order and also in the event that such an order is made, an application by the wife to the Commissioner for Superannuation for permission to access funds on the ground of hardship.  Bearing in mind all of those matters to which I have referred, I am not persuaded that the orders so sought should be made.

Wife’s costs application

1. The wife seeks an order for costs which is sought in the alternative.  The first is what is colloquially described as “dollar for dollar,” meaning that for each dollar spent by the husband on legal costs, the same amount should be devoted to the wife’s legal costs.  Superficially, that sounds attractive.  However, the circumstances in which costs are paid may vary from one party to the other, and I am not persuaded that such an order should be even contemplated.

2. In this jurisdiction the general principle is that each party bears his or her own costs.  However, pursuant to section 117(2) of the Act, should there be a circumstance that has been established that may make it proper for an order to be made, then the matters set forth in section 117(2A) fall to be considered.

3. The leading judgment as far as costs are concerned is that in the High Court in Penfold’s case[1].  In that case, their Honours held that the trial judge has a wide discretion to exercise provided that the relevant findings to which I have referred pursuant to those subsections have been carried out.

   [1] Penfold v Penfold (1980) FLC 90-860

4. I find that there is a circumstance which does justify an order for costs being considered.  The circumstance is that the wife has paid a small proportion of her outstanding costs and was able to do so in part not from her own funds, but as a result of a loan made to her by her parents.  The costs that have been incurred have been significant.

5. The husband, on the other hand, has been able to fund the same litigation by drawing upon his resources, much of which find their foundation in the period of cohabitation between the parties, unimpeded by considerations such as the need to borrow money for that purpose.

6. Consequently, in my view, those matters represent a circumstance which leads to a consideration of relevant matters pursuant to section 117(2A) of the Act.  The parties’ financial circumstances clearly demonstrate that the husband’s position is vastly superior to that of the wife.

7. The husband is employed in a senior management position with a large organisation, earning several hundred thousand dollars per annum, with all the attendant benefits of employment that flow.

8. The wife for her part is unemployed.  The wife has the care of two children who are still young.  The wife has had serious health issues with which she has had to contend.  In order to fund legal costs, she has in part borrowed money from her parents still leaving considerable money owing as at September 2010 which has no doubt increased since that time.

9. The husband has also shown irresponsibility in terms of the utilisation of funds at his disposal.  The husband’s failure to meet mortgage instalments has created jeopardy in terms of continued use and occupation of the former matrimonial home, not merely for the wife but also for the parties’ two children.  There is nothing on the evidence before me that demonstrates that the husband was left with no alternative.

10. The husband has continued to pursue a luxurious lifestyle.  He has purchased a second motor vehicle on lease.  There is an absence of evidence that demonstrates that was reasonably required.  He was prepared to secure holiday accommodation at a rent of $2,150.00 per week.  Whilst I am not critical of him for doing so, rather it demonstrates the financial capacity that he considered that he had that was open to him for utilisation.

11. The wife’s future financial resources do not show any improvement of her current position, other than the expected receipt of, the anticipated sum of $270,000.00, from the proceeds of sale of the former matrimonial home.  It must be remembered that such amount of money is not simply for the wife’s sole use.  It will be applied by her towards meeting the costs of accommodation for herself and the two young children, in circumstances where, no doubt, property will have to be rented and she, herself, is heavily reliant upon spousal maintenance being paid by the husband.

12. The husband, on the face of it, has also engaged in conduct which has exacerbated the litigation.  The detailed allegations made by the wife, so far as his behaviour while under the influence of intoxicating liquor and foul abuse of the wife is simply unacceptable.

13. These are matters which I am entitled to take into account, especially as they appear to be part and parcel of material relied upon by the wife for further litigation on an interim basis.  All of that behaviour could have been avoided by a sensible, responsible person.  I do accept, however, the likely inference that the husband’s behaviour in that regard was a product of the combination of his unsatisfactory mental health, the stresses of employment and of the litigation.

14. Hopefully, he will respond well to the specialist treatment that is being made available to him and also bear in mind that his employment is due to be reviewed in February.  It is in his interests to be able to present himself in a much healthier state of mind which will have benefit for not only him, but the children as well.

Conclusion

1. I have concluded that the orders sought by the wife for $40,000.00 will be made.

2. In doing so, my reasons are the vast discrepancy between the husband’s overall financial circumstances to which I have referred compared to that of the wife, the manner in which he has utilised his disposable income or has been prepared to do so, the lack of application by him of it to continue to meet mortgage instalments and the further stimulation to litigation which has resulted from his behaviour for which he solely is responsible.

3. In those circumstances the order will be for him to pay the sum of $40,000.00 from his share of the property settlement funds which would otherwise pass to him, pursuant to the consent orders made on 10 May 2010.

4. Orders with respect to the interim financial matters will be made today.  With regard to the interim parenting orders, because they need precise linkage with the times agreed upon in relation to paragraphs to which counsel for the wife referred and which will need to be confirmed by counsel for the husband, I am leaving it to counsel to submit a minute of orders which will be signed by me in chambers.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date: 4 January 2011