BISSETT & BISSETT

[2013] FamCA 431

FAMILY COURT OF AUSTRALIA

BISSETT & BISSETT [2013] FamCA 431

FAMILY LAW – CHILDREN –Interim parenting dispute – Not proper to make orders.

FAMILY LAW – PROPERTY – Exclusive occupancy – No basis to make order.

FAMILY LAW – SPOUSAL MAINTENANCE – Order sought – Applicant does not reach the threshold.

Family Law Act 1975 (Cth)

G v J (Ouster order) [1993] 1 FLR 1008
Goode and Goode (2006) FLC 93-286
Mullen and De Bry [2006] FamCA 1380
Scholte and Scholte (unreported, the Full Court Kay, Holden and Monteith JJ, 7 February 2002
Strahan and Strahan (Interim property orders) [2009] FamCAFC 166, 241 FLR 1, (2011) FLC 93-466

APPLICANT: Ms Bissett

RESPONDENT: Mr Bissett

FILE NUMBER: MLC 3359 of 2013

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

Orders

1. That the husband and wife do all acts and things necessary to enable the husband to draw down against the mortgage encumbering the parties’ real property, the sum of $30,000 for the purposes of such sum being used by the husband as litigation funding and the funds be taken into account at trial in such manner as the trial judge sees fit.

2. That until further order, the husband be restrained by injunction from accessing or viewing sexually explicit material within the home at which the parties live or whilst he has the care of the child C.

3. That the interim orders sought in the application of the wife filed 30 April 2013 and the response by the husband thereto filed 4 June 2013 are otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3359 of 2013

Ms Bissett

Applicant

And

Mr Bissett

Respondent

REASONS FOR JUDGMENT

1. Six disputed issues between Mr Bissett (“the husband”) and Ms Bissett (“the wife”) are dealt with in these reasons arising out of a Judicial Duty List hearing on 4 June 2013.  They are:

   (a)should the wife have sole occupancy of the former matrimonial home;

   (b)what time should the parties’ 15 year old son C, (“the child”) spend with each parent and should the husband as part of any proposed parenting order be restrained from accessing or viewing pornography;

   (c)what (if any) order should be made for financial assistance by the husband towards the wife;

   (d)should the husband be permitted to draw down against the mortgage encumbering the home for the purposes of providing litigation funding (at least for him) in the sum of $30,000?;

   (e)should an injunction be granted against the husband encumbering any assets owned by him including assets owned by a family company?; and

   (f)should an order be made for the husband to attend for a psycho-sexual examination by a forensic psychologist?

2. Having regard to the evidence and my findings below, the answers sequentially are:

   (a)No;

   (b)Apart from an agreed order for equal shared parental responsibility and an injunction being granted to preclude the husband viewing or accessing pornography in the presence of the child, none at this stage;

   (c)None;

   (d)Yes;

   (e)No;

   (f)No.

3. It is well understood that for the purposes of an interim hearing (both as to financial and parenting issues) the Court should not be drawn into making findings of fact in relation to contentious issues unless there is clear evidence enabling it to do so.

4. Specifically in relation to parenting matters, notwithstanding the hearing is an abridged version of a trial relying upon untested evidence, the Court is still obliged to apply the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

5. The relevant standard to be applied even where the facts are contested is that of the balance of probabilities but the Court should be cautious about being drawn into making findings based upon credit of the parties.

6. It goes without saying that this hearing was significantly truncated and the evidence could not be tested.  The parties had had the opportunity to consider the facts presented as evidence to support the orders each sought because each was represented by solicitor and counsel and importantly, each has lived this relationship for a long time.  As such, the parties well knew their own history.

7. The husband and wife commenced living together and married each other in 1989.  In an extra-marital affair, the husband became a father with a woman named Ms J in 1995.  In 1997, the parties separated but at a time when the wife was just pregnant with the child.  In 1998, the child was born to the husband and wife and he is therefore now just turned 15 years of age.

8. In 2002 the parties resumed their relationship which continued for ten years.  From the wife’s perspective, the relationship ended in December 2012 when she learned that the husband had had a second child to Ms J in 2006.  From the husband’s perspective, the parties had lived separately under the one roof for a number of years anyway.

9. The precipitating fact from the wife’s perspective that culminated in litigation commencing as a matter of urgency in April 2013 was what the wife described as a “disclosure” on two occasions by the child that whilst away on a sports tournament with the husband, his father had watched pornography and had masturbated.  He complained to the wife that he could still hear the husband’s actions.  For his part, the husband said that he did not agree that what the child had said was correct which led counsel for the wife to assert that there was an added dilemma in the relationship justifying the orders sought because the husband was now calling the child a liar.  I am not convinced that that is the case.

10. In his submission on behalf of the wife, counsel said “the disclosures” were the last straw.  He submitted that the sole occupancy order was justified on four bases.  First, there was the husband’s double life revelations.  Secondly, the litigation had caused an increase in the stress in the home.  Thirdly, there was the husband’s inappropriate sexual behaviour which increased pressure on the child and, fourthly, the husband’s use of pornography in the home was inappropriate.

11. Counsel for the husband responded by pointing to the paucity of evidence upon which findings could be made but also that the husband’s relationship with the child was strong and one in which there was daily interaction.  As such, it was submitted that the action was precipitous and the parties should go to psychologist Mr B for some guidance and assistance which would involve the child.

12. At the time the wife filed her application, a Notice of Risk of Child Abuse was also filed alleging as acts constituting abuse that the husband had exposed the child to internet pornography and masturbated in his presence whilst viewing pornography.  As is well known, the filing of such a Notice acts as a notification to the Department of Human Services.  The Department of Human Services have the benefit of the wife’s material but nothing in response from the husband.  It was observed that the Department had not interviewed the wife or the child yet its response was to say that it did not perceive the child to be at risk such as to require them to do anything.  The Department of Human Services well know that the child is living in the family home because the wife’s affidavit said so.  It was abundantly clear that the wife was seeking the order for the removal of the husband from that home as part of her application.

13. In respect of the child, the parties both sought an order for equal shared parental responsibility and requested that the order be made with their consent.  That order triggers a specific pathway for the Court but it also indicates that each of them says that they are capable of consulting with each other and able to make decisions about the child’s long term welfare.  I shall return to that below.

14. Further, something of a modest skirmish occurred over the issue of discovery of documents in this case.  Indeed, counsel for the wife sought an order that each party forthwith comply with their obligations of disclosure and counsel for the husband said that the husband agreed.  The Court should not have to make such an order as the obligation is embodied in the Rules of Court that full and frank disclosure is required of both parties.  The obligation is absolute.  Having regard to the speed with which these proceedings were brought on before the Court, the necessity for such an order is puzzling.  More puzzling however is the obvious fact that from the respective financial statements that the husband and wife have filed, there is a very limited amount of property and income involved.

15. What is also abundantly clear from the undisputed facts is that this was, and probably still is, a functioning household but with parents whose relationship is dysfunctional.

16. In respect of the sole occupancy order, the wife’s evidence was contained in her affidavit filed 30 April 2013.  The husband replied in an affidavit that was filed at the Court on 4 June 2013.

17. The evidence of the wife centred around the sexual proclivities of the husband and the disclosures of the child.  However, despite becoming aware of the husband’s other children, the wife continued to live in the same house as the husband.  She denied the parties had been separated under the one roof for a long time as alleged by the husband yet he said that they slept in different bedrooms.  The husband raised concerns about the wife’s gambling problems and they were not denied by the wife save that their genesis may well be an issue for trial.  It seems on the vague evidence that the child is getting counselling but exactly for what purpose, I am unsure.

18. The issue of masturbation was clearly the wife’s focus and it is important to look at the facts.  It was the wife’s evidence that on the afternoon of Tuesday 16 April 2013 whilst driving the child home from school (and without expansive indications of the cause of the discussion) the child said that his father had masturbated whilst watching a laptop computer in December 2012 while they were at a sports camp.  The husband did not deny the incident but said that he thought the child was asleep at the time.  He said that whilst so behaving, he was under the bedclothes and fully covered.

19. Nothing further was said about anyone’s reaction to this concern expressed by the child.  The evidence is silent on that subject.  Suffice to say, life went on as normal and the husband later that day followed his routine and took the child to his sports event.  That was followed by returning home and eating dinner.  The wife apparently said nothing to the husband and neither did the child.  Whilst all this was happening, it was immediately prior to the wife’s attendance upon her solicitors who in turn having returned the material, convinced a registrar that this needed an urgent hearing.

20. A week after the first “disclosure” and in the morning, whilst driving the child to school, he told his mother of another incident said to have occurred in March 2013 whilst the husband and the child were interstate on a sports camp.  This time, the child said that he heard his father masturbating whilst watching pornography.  To this response, the husband said he could not recall the child being exposed to such conduct.  The vagueness of the response has to be read in the context of the husband’s further denials including that the issue had not been raised with him in the past. 

21. More importantly, subsequent to this “disclosure”, life again went on as normal.  In his affidavit, the husband set out his extensive daily involvement in the child’s sporting activities and that seems to have continued during the period between filing the application and this hearing.  I am satisfied on the evidence which has not been denied by the wife that the husband has a very significant involvement in the child’s daily life.

22. The focus of the wife’s evidence may have been on the husband but there were other problems in this household.  The husband asserted, no doubt denied by the wife, she had been found by him masturbating.  Just what relevance that has to this parenting dispute escapes me. 

23. Further, the husband said the wife told him that in November 2012, she had seen the child masturbating when she looked through the bathroom window at him.  In what I inferred was an indication of parental responsible behaviour, the husband said he then spoke to the child to find out what “motivated” him to undertake that behaviour.  As the complaint to the husband apparently came from the wife, and the husband spoke to the child, it has a ring of plausibility about it.  But importantly, as the child was 14 years of age it is hard to see what relevance it has to any parenting dispute either. 

24. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode and Goode (2006) FLC 93-286).

25. In Goode (supra) the Full Court indicated that the Court should:

    ·    Identify the competing proposals;

    ·    Identify the issues in dispute;

    ·    Identify any agreed or uncontested relevant facts;

    ·    Consider the matters in s 60CC that are relevant and if possible make findings.

26. In respect of the disputed parenting issues, the wife did not want the husband excluded from the child’s life but rather curtailed with a specific injunction that there not be overnight time.  The husband’s position was that there should be no orders at all at this stage because the parties could continue to live together albeit in a strange way.  The issue is therefore whether there is a justification for making any order at all.  The facts remain untested but what is not denied by the wife is the husband’s significant role in the child’s life and what would otherwise appear to be a good relationship between father and son.

27. Section 65D(1) provides that in proceedings for a parenting order, the Court has a discretion no doubt guided by the various other parts of the legislation, to make such order as it thinks proper.  The Court should only exercise that power if it is in the best interests of the child but also necessary in the circumstances that prevail. 

28. In determining what is in the best interests of the child, the various considerations in s 60CC need to be taken into account.  I do not know what the child’s views are.  The nature of the relationship between the child and his parents seems to be good and significant.  Both parties have had a very significant role in his life and both parties suggest that they can make decisions about major long term issues together.  There is no suggestion that either party has failed in their obligations to maintain the child.  I do not know what impact there may be on the child if I made the orders consistent with the wife’s application.  Despite the wife’s suggestion that the husband could live in one of two locations other than the home, both of those locations were said to be inappropriate and unavailable to the husband.  I do not know therefore the effect of such a move on the child if he was to spend time with his father.  There does not appear to be any suggestion in this case that either party has any problems about capacity to provide for the needs of the child.  There may be an argument at trial about the attitude to the responsibilities of parenthood but the facts in this case are so controversial that I am not in a position to make any finding.

29. The first of two primary considerations set out in s 60CC is the importance of the child having the benefit of a meaningful relationship with both parents.  I would be very hesitant at this interim stage particularly with the state of the parents’ relationship to make any finding about what impact the changes sought by the wife would have on the relationship between the child and his father.

30. Secondly, s 60CC also requires the Court to consider as a primary consideration the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  Whilst there is an inference urged by the wife that the child is being subjected to the psychological harm of the stressors of the relationship in the four ways that I have indicated above, it is far too early for the Court to intervene at this stage and make any findings.

31. It is also important in this case to note that the parties have agreed to an order for equal shared parental responsibility and urged the Court to make that order.  Because of s 65DAA the Court must consider a variety of circumstances if it is going to make a parenting order.  In my view, it is not proper to make a parenting order of the nature sought by the wife in this case so the question of the pathway set out in s 65DAA is unnecessary.

32. The wife also sought the order for sole occupancy based on the matters to which I have referred.  In my view, there is not sufficient evidence for me to find that there is a justification for such an order. 

33. The power to grant an injunction relating to a home such as this is found in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It is a specific power. The Court is empowered to make the order if it considers it proper with respect to the matter in which the proceedings relate.

34. In G v J (Ouster order) [1993] 1 FLR 1008, the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 where his Lordship referred to the fact that an Ouster order should only be made in cases of real necessity. In Scholte and Scholte (unreported, the Full Court Kay, Holden and Monteith JJ, 7 February 2002), their Honours agreed with the sentiments expressed in G v J. Their Honours pointed out that there were no words of limitation in s 114 other than that the grant of the injunction must be proper. They opined that an injunction could not be proper unless there was an appropriate factual base to support it. Their Honours observed that it was unlikely that the mere existence of tension and argument in a home short of unacceptable conduct or clear detriment to the welfare of a child, would lead the Court to exclude a person who had a lawful occupation of the property. There is clearly a distinction between lawful occupation and legal ownership.

35. In my view, there is no appropriate factual basis here upon which I could make an order such as would justify the exclusion of the husband.  As was argued by counsel for the wife, there is significant tension.  There does not seem to be any argument.  There does not seem to be any unacceptable conduct within the home because the allegations relate to conduct away from the home at least in respect of recent times.  Notwithstanding the “disclosures” of the child, the continued occupation by both parties does not seem to me to be adversely affecting the welfare of the child in any significant way more so than one would expect from a 15 year old boy who is concerned about his parents’ relationship deteriorating in front of his eyes.  In those circumstances, there is not sufficient evidence to justify the Court excluding the husband.

36. The wife also sought an order that the husband be responsible for payment of:

    (a)all outgoings in respect of the home;

    (b)the lease on her car; and

    (c)outstanding penalties in respect of the motor car (which she apparently incurred).

1. Save as to the motor car which the husband has agreed to continue to fund, the other issues were controversial.  An example of the dysfunctional nature of the relationship can be seen in the fines referred to above.  Some of these were in the name of the company and others in the name of the wife.  Each party had a differing view about those fines and how they were incurred but it seems that the car was being driven by the wife.  The wife said the husband had just produced the fine notices and her counsel submitted that this was evidence of the lack of communication in the dysfunctional relationship.  The husband said the wife had refused to provide her driver’s licence details for the forms to be submitted to the relevant government authority.  Either way, the truth will come out and in due course, it seems clear that the fines belong to the wife.  I am not entirely convinced that it is a matter falling within the province of spousal maintenance.  What should occur is that the wife makes the appropriate relationship to pay the fines if she incurred them.

2. In respect of the household outgoings, the husband indicated that he would continue to pay the mortgage and expenses that he had been paying as one would expect with a person living in that household.  On the basis that he is not excluded from the residence, the wife’s claim for spousal maintenance must be seen as tenuous.

3. Section 72 of the Act provides that a party to a marriage is liable to maintain the other to the extent that the respondent is reasonably able to do so but only if the applicant is unable to support herself adequately by reason of having the care and control of a child under the age of 18, by reason of age or physical or mental incapacity for appropriate gainful employment or any other adequate reason.

4. It is clear therefore that the wife has to establish that she reaches the threshold.  In her financial statement filed 30 April 2013, the wife deposed to the fact that she was earning almost $1100 per week which was supplemented by a family tax benefit.  From her gross income, very little was deducted and the bulk of her expenditure might best be described as living expenses.  She deposed to the fact that that was $1598 per week.  When that figure is examined in the form, much of it relates to the child and her own expenses amount to $736 per week.  It is not appropriate that I combine her expenses and those of the child because that would be encroaching on the child support area.  In those circumstances, I am satisfied that the wife is capable of supporting herself.  There is therefore no basis for me to make the order sought by her. 

5. The wife also sought three forms of injunction.  They were:

   (a)that the husband be restrained from taking items from the home unless agreed;

   (b)the husband be restrained from encumbering any assets or disposing of any assets; and

   (c)each party be restrained from denigrating or discussing the proceedings in the presence or hearing of the child.

6. I earlier set out the provisions of s 114 of the Act and the same provisions apply in respect of each of these proposed orders. There is no evidence to indicate that the husband is doing anything illicit or inappropriate. There must be some evidence to indicate that the Court has a concern about the protection of assets or that a party is going to take some action that is inappropriate (see Mullen and De Bry [2006] FamCA 1380).

7. In my view there is no basis to make the orders (a) and (b) but the parties have agreed on the order in (c) so that should be made.

8. The wife also sought an order that the husband attend at his expense upon a psychologist for the purposes of the psycho-sexual examination.  Whilst the wife saw the husband’s behaviour as abhorrent, I am not entirely clear without some evidence as to its impact upon the child.  The wife said that the child made the two “disclosures” but exactly in what context, what was said, how the wife responded and what the husband did are all unstated.  I could not say that this behaviour required an examination by a psychologist or psychiatrist.  To make such an order, the wife must point to the connection of the evidence with the parenting dispute such that the Court should have expert evidence at its fingertips.  She has not made such a connection and accordingly I propose to not make the order.

9. Finally, the orders sought by the husband included that the parties draw down on their mortgage and each take $30,000 for the purposes of litigation funding.  The husband relied upon his affidavit and that of his solicitor as to the sorts of expenses that would be incurred.  The wife simply opposed the order being made.  She did not seek that any such release of funds be made.

10. Looking at the husband’s financial position, bearing in mind that he is paying the mortgage and most of the household expenses, I can understand how he would have a paucity of excess money available to pay his lawyers.  Having regard to the authority in Strahan and Strahan (Interim property orders) [2009] FamCAFC 166, 241 FLR 1, (2011) FLC 93-466 there is sufficient equity to justify an order that the husband have access to the funds so that the parties or at least the husband, will have access to lawyers to endeavour to resolve this litigation. I therefore propose to make that order. To the extent that the wife seeks money and she has not done so to date, she can no doubt negotiate with the husband for a similar payment to be made to her lawyers.

I certify that the preceding Forty Six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 June 2013.

Associate: 

Date:  11 June 2013