Blatch & Blatch

Case [2021] FedCFamC1F 219

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Blatch & Blatch [2021] FedCFamC1F 219

File number(s): SYC 1613 of 2021
Judgment of: CAMPTON J
Date of judgment: 30 November 2021
Catchwords: FAMILY LAW – PROPERTY AND PARENTING  – Application for review of Senior Registrar’s decision – Circumstances since Senior Registrar’s decision lead parties and Independent Children’s Lawyer to seek discharge of Senior Registrar’s orders - Application for review allowed – Interim parenting arrangements – Balancing of risks posed by father’s alleged family violence and alcohol consumption – Where the children have had minimal contact with the father since separation – Further supervised time - Where the mother seeks an interim payment of funds by way of partial property settlement – Issues of non-disclosure and non-compliance with orders – Partial property Order made in favour of the  mother – Father in arrears of child support – Application for enforcement of arrears – Declaration of arrears of child support owed to the mother – Mother has standing to enforce child support arrears.
Legislation:

Child Support (Registration and Collection) Act 1988 (Cth) s 30, s 113A

Evidence Act1995 (NSW) s 50

Family Law Act 1975 (Cth), 60CC, 60CG, 65D(1), 79, ss 80(1)(h)

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 12.06
Cases cited:

Amador & Amador (2009) 43 Fam LR 2009; [2009] FamCAFC 196

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode [2006] FamCA 1346

M v M (1988) 166 CLR 69

Mallory & Mallory [2019] FamCAFC 221

Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Salah & Salah(2016) FLC 93-713; [2016] FamCAFC 100

SS & AH [2010] FamCAFC 13

Stanford & Stanford  (2012) 247 CLR 108; [2012] HCA 52

Strahan & Strahan (2011) FLC 93-466; [2009] FamCAFC 166

Swift & Swift [2020] FamCA 991

Yarwood & Shore [2013] FCCA 2219
Division: Division 1 First Instance
Number of paragraphs: 151
Date of hearing: 12 November 2021
Counsel for the Applicant: Dr Barnett
Solicitor for the Applicant: Byrnes Legal
Counsel for the Respondent: Mr Sansom
Solicitor for the Respondent: Lander & Rogers
Solicitor for the Independent Children’s Lawyer: Brian Samuel & Associates

ORDERS

SYC 1613 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLATCH
Applicant
AND: MS BLATCH
Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

30 NOVEMBER 2021

THE COURT ORDERS THAT:

1.All existing interim parenting orders as to the children X born … 2010 and Y born … 2012 (“the children”) are discharged.

PENDING FURTHER ORDER, THAT:

2.The children live with the mother.

3.The children spend time with the father as follows:

(a)On each alternate Sunday, commencing from the date of these orders, for a period of four alternate Sundays from 10.00 am until at 3.00 pm; and

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Blatch & Blatch [2021] FedCFamC1F 219
Case
[2021] FedCFamC1F 219
Decision Date

CaseChat Overview and Summary

In the matter of Blatch & Blatch, the primary issue before the court was the establishment of an appropriate interim parenting arrangement between the father and the children, given the allegations of family violence and the need to protect the children from harm. The Independent Children’s Lawyer proposed an initial period of supervised visits with gradual transition to unsupervised visits, coupled with stringent conditions such as alcohol abstinence and random testing. The mother, in her response, sought different parenting orders and additional injunctive relief. The father contested the allegations of family violence and sought his own set of orders regarding the children’s care.

The court was required to weigh the primary considerations under section 60CC(2) of the Act, particularly the need to protect the children from harm, against the benefit of maintaining a meaningful relationship with both parents. The court also had to assess the risk of harm to the children based on the allegations of family violence, the father’s potential alcohol consumption, and the children's exposure to criminal law proceedings. Furthermore, the court needed to decide whether an interim property order was appropriate under section 79 of the Act, considering the long duration of the marriage, the breakdown of the relationship, and the necessity for property settlement.

The court determined that the proposed regime of supervised and gradually unsupervised visits with the father, subject to strict conditions, was appropriate given the circumstances. The court balanced the need to protect the children from the alleged harm with the benefit of maintaining a relationship with the father, ultimately concluding that the proposed measures would ensure adequate caution and facilitate the children’s gradual rebuilding of trust and confidence in their father. The court also found that the criteria for an interim property order were met, leading to the establishment of a fair and equitable distribution of assets between the parties.

The court made orders for the interim parenting arrangement as proposed by the Independent Children’s Lawyer and granted the interim property order as requested by the parties, considering the long marriage and the necessity for a property settlement.

Orders

Orders of the court

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Background

Background to the litigation

The Independent Children’s Lawyer proposed that the children would spend time with the father on an unsupervised basis for a period of eight weeks each alternate Sunday from 10.00 am until 2.00 pm and thereafter each alternate Sunday from 10.00 am until 5.00 pm together with specified times on Christmas Day and Father’s Day. He proposed that changeover occur at a McDonalds Family Restaurant nominated by the mother and that changeover could be facilitated by a third party of the mother’s choice. The Independent Children’s Lawyer sought other injunctive orders and non-denigration orders and orders that the father be restrained from consuming alcohol 12 hours prior to spending time with the children or during the children’s time with him. He sought orders for the father to undergo random CDT testing not more than once per month. He further sought that each of the parents enrol in a parenting after separation course.BACKGROUND The father initiated parenting proceedings on 8 March 2021. The mother by way of her Response filed on 9 April 2021 sought different orders as to the parenting of the children and orders of a financial character, including by way of period and non-periodic Child Support Departure. The parties commenced cohabitation in 2003, married in 2005 and separated within the home at the Suburb K Property between April 2018 (on the father’s evidence) and November 2018 (on the mother’s evidence). The mother and the children vacated the home on 2 December 2018. An Order for Divorce was made on 21 September 2020. The mother gives evidence that the father engaged in a pattern of family violence over the course of the relationship including occasioning physical and verbal abuse towards her, monitoring her phone history, and withholding her car keys and phone for periods of time. The mother provides examples of the father throwing or threatening to throw objects at her on at least two occasions, including a bottle opener and her mobile phone. She also alleges that the father wielded his superior financial position to leverage control over her, by restricting her access to funds and by rebuking her for expending monies on, for example, the doctor. The mother gives an evidence as to an occasion when she requested the father not attend a planned holiday with her family, and subsequently receiving a text message from the father stating “make sure your half of the mortgage is there or when you go I will change the locks”. The mother alleges that on occasions the father’s conduct occurred in the presence of the children. The father directly puts in issue the fact and contents of these allegations. He apportions fault for conflict in the presence of the children to the mother. The mother gives evidence as to an exchange between the parties on 2 December 2018. She asserts that on this date and in the presence of the children, the father became verbally abusive towards her while the parties were preparing dinner at their home. She deposes to the father demanding repeatedly that she leave the home, and to him taking her mobile phone and car and house keys. Upon the mother demanding the return of the phone, she deposes to the father “propelling [her] up” and she then falling horizontally straight onto her back, causing her severe pain. She says that she then left the home and reported the incident to police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Such a regime of time spent will ensure adequate caution as to the capacity of the children to continue to build up their confidence and trust in their father, having regard to their experiences of him to date.CONCLUSION AS TO THE PARENTING REVIEW In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred. Having regard to both the primary considerations and the additional considerations set out in s 60CC of the Act and in light of the history of the matter, I am of the view that the regime of orders identified earlier in these reasons are in the best interests of the children at this stage, and ameliorate risk, achieving balance in the best manner possible. Accordingly, I make the orders as set out in the forefront of this judgment.INTERIM PROPERTY The High Court in Stanford & Stanford (2012) 247 CLR 108 observed that it is necessary for the Court to be satisfied that justice and equity will be achieved as part of the adjustment process to be undertaken pursuant to s 79 of the Act. The requirements identified by the High Court are readily satisfied in this matter having regard to:-(a)the long marriage of the parties;(b)their relationship having broken down and them living apart now for more than three years;(c)the title to the home jointly owned by the parties and their superannuation interests needing to be changed when consideration is given to the contribution and other factors; and(d)by way of the fact that both parties have invoked s 79 seeking orders for property settlement which they agree is necessary. The Full Court in Strahan & Strahan (2011) FLC 93-466 (“Strahan”) identified the principles effectible to interim or partial property orders and set out the steps in determining whether to make an interim property distribution. Subject to the interests of justice, the usual approach in respect of s 79 is a once and for all order[3]. The test is not confined to “compelling circumstances”. That said, more is required than the mere fact that upon a final hearing the mother would receive the property sought.[4] The “overarching considering” as to the appropriateness of the exercise of an interim property power by the Court must be answered in the affirmative in the interests of justice.[3] Swift & Swift [2020] FamCA 991 at [16][4] Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181 As was explained by the Full Court in Strahan, s 80(1)(h) is a wide enabling provision for interim property decisions. All that is required before the power to make an interim property order is a reason or reasons as to why it is appropriate that the order be made. The Full Court identified the notion of “a level playing field” as one which almost axiomatically is in the interests of justice, and is an important matter to consider when deciding whether it would be appropriate to make an interim property order. As to the identification of, and value of, the property of the parties, a collaboratively prepared balance sheet was not tendered. The process of obtaining court expert valuations of real property and corporate interests is yet to be completed. A balance sheet document constructed from financial statements that had been filed by each party formed part of the mother’s Case Outline document, Exhibit 2. That document was not the subject of any adverse submission or criticism by the father.

Ratio Decidendi

Legal Principle Established

The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.THE PRIMARY CONSIDERATIONS: S 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[1] [1] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].ALLEGATIONS OF RISK The risk of harm to the children is a central but not the only issue in this case. The High Court in M v M (1988) 166 CLR 69 at [78] identified that the formulation of parenting orders depend on the nature and degree of risk presented. The formulation of orders in this case are about balance. The Full Court in SS & AH [2010] FamCAFC 13 confirmed that it is not feasible when dealing with the immediate welfare of children to simply ignore an assertion because the accuracy has been put into issue. In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”) the Full Court said that the assessment of risk cannot be postponed until the last piece of evidence has been given and tested. In Deiter, the Full Court said when making an interim order a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children. It is likely that the interim parenting arrangement under consideration will be in place at least until mid-2022. It further appears uncontroversial as between the parties, and a submission was actively promoted by the Independent Children’s Lawyer that any orders as to the terms of the time spent by the father with the children wold be subject to potential review after the issue of the Court Parenting Expert’s report.Discussion and assessment of risk In this matter the risk posed by the father as in spending time with the children is identified as being the as yet unknown short and long term impacts from exposure to significant family violence and conflict, as to the impacts of the father’s consumption of alcohol, as to the absence of capacity of the father to regulate his behaviour, and as to the impact of the children’s engagement in the criminal law proceedings on their relationship with each of their parents. Risk is not the only, or necessarily the determinative, factor at play in the crafting of appropriate interim parenting order in this matter. It remains one factor to be taken into account (noting sections 60CC(2A) and 60CG of the Act) in the determination of what is in the children’s best interests (see, for example Mallory & Mallory [2019] FamCAFC 221 at [78]).