Blatch & Blatch (No 5)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Blatch & Blatch (No 5) [2022] FedCFamC1F 651

File number(s): SYC 1613 of 2021
Judgment of: REES J
Date of judgment: 31 August 2022
Catchwords:

FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility – The mother seeks sole parental responsibility and that the father spend no time with the children – Where the children’s views are to be given weight – Where the parents present with all the features of a high conflict dispute – The father poses no physical risk of harm to the children – Orders made for the children to live with the mother and spend time with the father

FAMILY LAW – PROPERTY – The wife seeks 65 per cent of the net assets by way of property distribution –Where the wife has paid for majority of the children’s private school fees – Where the husband is in arrears of child support – Orders made pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth) for the husband to pay child support by way of lump sum – Orders made for the husband to pay half of the children’s school fees – Orders made for the wife to receive 60 per cent of the net assets – Orders made appointing the wife as the trustee for sale of the matrimonial property in the event that the husband is unable to retain the property

Legislation:

Child Support Assessment Act 1989 (Cth) s 123(1)(a), s 123(1)(b) and s 123A

Child Support (Registration and Collection) Act 1989 (Cth) s 113A

Family Law Act 1975 (Cth) s 65L, s 69ZX(3), s 75(2), s 79(2) and s 79(4)
Division: Division 1 First Instance
Number of paragraphs: 286
Date of hearing: 17, 18, 19 & 22 August 2022
Place: Sydney
Counsel for the Applicant: Mr Blackah
Solicitor for the Applicant: Justice Family Lawyers Sydney
Counsel for the Respondent: Mr Othen
Solicitor for the Respondent: Lander & Rogers
Counsel for the Independent Children's Lawyer: Mr Jackson
Independent Children's Lawyer: Brian Samuel & Associates
Table of Corrections
14 December 2023 In paragraph 33(d) of the orders reference to number “24” has been corrected to show number “30”.

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

ORDER MADE BY:

REES J

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS:

Par 33(d) amended 14.12.2023 pursuant to slip rule, Rule 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021

1.That the mother have sole parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).

2.That the mother immediately inform the father of any decision she makes in the exercise of her parental responsibility for the children.

3.That the children live with the mother other than as provided in these orders.

4.That the children live with the father during school terms…

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Details
Case
[2022] FedCFamC1F 651
Decision Date

CaseChat Overview and Summary

In the matter of Blatch & Blatch (No 5), the court dealt with issues concerning both parenting and property distribution in a high-conflict dispute. The father sought equal shared parental responsibility, while the mother sought sole responsibility and that the father spend no time with the children. The court acknowledged the high-conflict nature of the dispute but observed that the children appeared to be coping well despite the conflict, with positive interactions during supervised contact with the father. Regarding property distribution, the wife sought 65 per cent of the net assets, partly due to her payment of the majority of the children's private school fees and the husband's arrears in child support. The court determined that the wife should receive 60 per cent of the net assets, with specific orders regarding the payment of child support and school fees, and the sale of the matrimonial home if the husband could not retain it.

The court's reasoning was grounded in the need to balance the well-being of the children with the parents' rights and responsibilities. The father was deemed not to pose a physical risk to the children, and the court found that the children expressed a desire for more time with him. Therefore, the court ordered that the children live with the mother but spend significant time with the father, including alternate weekend visits during school terms and portions of the school holidays. The court also made detailed provisions for the communication between parents, attendance at school and sporting events, and the sharing of information regarding the children's welfare and education. For property distribution, the court ordered that the wife receive 60 per cent of the net assets, with specific directions for the payment of child support, costs, and the sale of the matrimonial home if necessary. The court also appointed the wife as the trustee for sale of the property if the husband could not retain it, reflecting the unlikelihood of cooperative action between the parties.

Orders

Orders of the court

THE COURT ORDERS:

Par 33(d) amended 14.12.2023 pursuant to slip rule, Rule 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021

1. That the mother have sole parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).

2. That the mother immediately inform the father of any decision she makes in the exercise of her parental responsibility for the children.

3. That the children live with the mother other than as provided in these orders.

4. That the children live with the father during school terms each alternate weekend, commencing on the first weekend of each school term, from the end of school on Thursday until school starts on Monday, or Tuesday if the weekend is a long weekend, the father to collect the children from school on Thursday and return them to school on Monday.

5. That the operation of Order 4 commence on Thursday 8 September 2022.

6. That the father is entitled to attend any school or sporting event on the days that the children live with him and the mother is restrained from attending such events on any day, including Thursday and Monday, or Tuesday if the weekend is a long weekend, that the children live with the father.

7. That the mother is entitled to attend any school or sporting event on the days that the children live with her and the father is restrained from attending such events on any day that the children are not in his care.

8. That each parent is restrained from enrolling the children in any activity which occurs when the children are in the care of the other without the written consent of the other parent.

9. That the mother authorise the school which the children attend to provide to the father all information which is usually provided to parents including but not limited to newsletters, school reports, bulletins and photographs.

10. That the children live with the father in the holidays at the end of Terms 1, 2 and 3 for the first half of each school holiday period commencing at the end of school on the last day of the school term and ending at 5.00 pm on the day which is the mid-point of the holiday and the father shall collect the children from school and return them to the mother at the end of the period by parking his car outside the mother’s residence and allowing the children to go inside. During changeover, the father is to remain in his vehicle and the mother is to remain inside the residence.

11. That in the Christmas holidays at the end of 2022 and in each even-numbered year thereafter, the children live with the father for the first half of the holiday commencing at the end of school on the last day of the school term and ending at 5.00 pm on the day which is the mid-point of the holiday.

12. That in 2022 and each even-numbered year thereafter, the children shall spend time with the mother on 26 December from 9.00 am until 6.00 pm, the father to deliver the children to the mother’s residence and the mother to return the children to the father’s residence.

13. That in the Christmas holidays at the end of 2023 and in each odd numbered year thereafter, the children live with the father for the second half of the holiday commencing at 9.00 am on the day which is the mid-point of the holiday and ending at 5.00 pm on the day before the first day on which the children attend school in Term 1 of the new year.

14. That in 2023 and each odd numbered year thereafter, the children shall spend time with the father on 26 December from 9.00 am until 6.00 pm, the mother to deliver the children to the father’s residence and the father to return the children to the mother’s residence.

15. That for the purpose of Christmas holiday changeover in accordance with Orders 11, 12, 13 and 14, and for the purpose of Orders 16 and 17, where changeover does not occur at school, the parent with whom the children has been living will deliver the children to the residence of the other parent, the delivering parent will remain in his or her car and the receiving parent will remain inside his or her residence.

16. That on the weekend of Fathers’ Day, if the children are not living with the father pursuant to Order 4, the children will spend time with the father from 4.00 pm on Saturday until 8.00 pm on Sunday.

17. That on the weekend of Mothers’ Day, if the children are not living with the mother, the children will spend time with the mother from 4.00 pm on Saturday until 8.00 pm on Sunday.

18. That each parent will permit the children to initiate telephone or electronic communication with the other parent at any reasonable time.

19. That each parent do all acts and sign all documents required to ensure that the children have valid passports at all times.

20. That, during the time the children spend with each parent pursuant to these orders, that parent is entitled to travel interstate and overseas with the children provided that the other parent is provided with contact information and a travel itinerary not less than 14 days before the departure date and provided that the travel takes place during the time allocated to the travelling parent pursuant to these orders.

21. That each parent keep the other advised of his or her residential address and contact details.

22. That the mother ensure that the father is provided with the telephone number of the children’s mobile telephones.

23. That each parent advise the other by text message or telephone call if either of the children suffers a medical emergency and provide details of the treating medical practitioners and, if applicable, hospital and the mother shall authorise the child’s medical practitioners and the hospital to provide to the father any information he seeks about the child’s condition and treatment.

24. That the husband pay, as and when they fall due, one half of any account issued by U School for the tuition of the children. In the event that the husband does not pay half of the school fees in accordance with this order and those fees are paid by the wife, then the husband shall reimburse the mother for the amount he should have paid.

25. That the payments referred to in Order 24 not be credited against any other liability of the husband to pay child support.

26. That the Court declares that the husband is in arrears of periodic child support payable to the wife in the sum of $31,115 as at July 2022.

27. That pursuant to s 113A of the Child Support (Registration and Collection) Act 1989 (Cth) the said sum shall be paid to the wife within 42 days in accordance with Order 30 or on the sale of the Suburb K property in accordance with Order 33.

28. That pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth), the husband shall pay to the wife the sum of $186,238 by way of lump sum child support the said sum shall be paid to the wife within 42 days in accordance with Order 30 or on the sale of the Suburb K property in accordance with Order 33.

29. That the sum of $186,238 is to be credited against 100 per cent of the husband’s assessed child support liability.

30. That within 42 days of the date of these orders, the husband pay to the wife the following sums:

(a) $1,006,527

(b) $186,238

(c) $31,115

(d) $21,586 pursuant to orders made 10 August 2022 together with interest payable at the rate prescribed in the Family Law Rules from the due date until the date of payment.

(e) $20,000 pursuant to orders made 8 February 2022 together with interest payable at the rate prescribed in the Family Law Rules from the due date until the date of payment.

31. That upon payment of the sums referred in Order 30 the wife shall do all acts required to transfer to the husband her interest in the property at L Street, Suburb K (“the Suburb K property”) and the husband shall indemnify the wife against any and all liability arising from any mortgages secured against the Suburb K property.

32. That the husband pay the interest on any mortgage secured over the Suburb K property from the date of these orders.

33. That in the event that the husband does not pay to the wife the sums referred to in Order 30 by the due date, then within 14 days of the date for payment specified in Order 30 the husband shall vacate the Suburb K property and the wife is appointed trustee for sale to sell the Suburb K property at the best price available and to distribute the proceeds of sale in the following manner and priority:

(a) To discharge the mortgages secured over the property.

(b) In payment of the agents’ commission, legal fees on the conveyance and costs of sale.

(c) In payment of 60 per cent of the balance remaining, less the sum of $49,556 to the wife.

(d) In payment to the wife of the sums referred to in Order 24 30(b), (c), (d) and (e).

(e) In payment of any arrears of interest payments arising by the husband’s having failed to pay interest on the mortgages in accordance with Order 32.

(f) In payment of the balance remaining to the husband.

34. That, absent agreement, the husband do all things required to sell the furniture and whitegoods in the Suburb K property and account to the wife for half of the proceeds of the sale.

35. That other than as provided in these orders, each party is solely entitled to any item of property, including any entitlement to superannuation, in his or her possession at the date of these orders.

36. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Since the children were returned to their mother, the unsupervised contact with their father has continued.THE EVIDENCE OF MR J Mr J conducted interviews in March 2022 and his report is dated 4 April 2022. In his report, Mr J summarised the parameters of the dispute between the parents. The father’s version is that the mother:5.…is insightless as to her contribution to the problems in the relationship, that she is aggressive, belittling, negative, condescending and engages in a mirroring of allegations such that that about which she accuses him is the behaviour displayed by her, and that her behaviour places the girls at risk of parental alienation. The mother’s version is that the father:6.…physically assaulted her in [late] 2018, that he has a history of problems with alcohol consumption, emotional and behavioural dysregulation, and that he is unable to elevate the needs of those around him ahead of his own. [Ms Blatch] refers to family violence, gas lighting, emotional abuse and physical intimidation all having continued in the post separation period. She has been anxious about the impact of his behaviour upon the girls, and the risks to which they may be exposed as a consequence; she has been frustrated by the interference created by [Mr Blatch] in so far as her efforts to obtain psychological assistance for the children. Each parent complained to Mr J about the damage that the other continues to do to the children and he described their conflict as “highly polarised and unresolved”. He stated:7.Their presentation suggests that their dispute falls well within the realms of what is described as high post separation conflict, and I note that with the passage of time, and notwithstanding all that has transpired, including various hearings in different Courts, the involvement of Police and therapeutic endeavours, that they remain fixed and their concerns pertaining to the other parent remain unwavering.(As per the original) Mr J observed:8.It is however particularly noteworthy that notwithstanding the concerns, the history, the conflict, the litigation, and the continuing allegations and counter allegations, that what is conspicuous by its absence is any real concern regarding the behaviour of the children, notwithstanding that both parents harbour a construction of concern that reflects their concern for what they believe to be the risks to the children, predominantly as a consequence of the behaviour of the other parent. Both rely in part on emotional facts, that is, they elevate their beliefs about what has occurred, and their belief about the level of influence by the other parent upon the children to a level of fact, when the objective consideration of the girls and their behaviour suggests that they are doing considerably better than might otherwise be anticipated. Mr J was provided with the reports of the supervised contact and observed that they were all “unequivocally positive” as to the interaction between the children and the father and that the supervisors noted that the children wanted more time with the father.

Decision

Reasons for decision

The disparity in income warrants a small adjustment in the wife’s favour of 5 per cent. CONCLUSION The wife will receive 60 per cent of the net assets together with the arrears of child support and the lump sum child support. She will also be paid the two outstanding amounts ordered to be paid by the husband to her by way of costs on 30 November 2021 and 10 August 2022. The husband wishes to retain the Suburb K property and the wife is content that he be given the opportunity to do so. The wife is entitled to receive $1,347,789. She already has net assets of $341,262 so the husband must pay her $1,006,527 plus the additional sums referred to above. If he is unable to do so, then the proceeds of sale of the Suburb K property will be paid so that the wife receives an overall adjustment of 60 per cent of the assets. In order to achieve that result, the wife has net assets of $341,262 and the husband of $144,915, a total of $486,177. The wife is entitled to 60 per cent of their net assets or $291,706. Thus she must make an allowance to the husband of $49,556 and then receive 60 per cent of the net proceeds of sale of the Suburb K property and the amounts I have ordered to be paid by way of child support and costs. APPOINTMENT OF TRUSTEE FOR SALE In the event that the husband is unable to retain the Suburb K property, the wife seeks to be appointed as trustee for sale, relying on the husband’s history of non-compliance with court orders and their complete inability to act co-operatively since they separated. No submissions were directed to this application but I assume that it is opposed by the husband. I am satisfied that there is no possibility that the husband and the wife can act co-operatively in relation to the marketing and sale of the property. It is in both of their interests that the property be sold for the highest possible amount but it is in the interests of the husband, who is in occupation, to delay and obfuscate. In those circumstances, I am satisfied that it is appropriate for the wife to be appointed as trustee for sale and for the husband to vacate the property to allow her to market and sell it.

Ratio Decidendi

Legal Principle Established

Having seen both of the parents cross-examined over the period of the trial, I accept that the father is likely to have behaved in a manner that was intimidating and aggressive towards the mother. Equally, I accept that the mother would have behaved in a manner which was seen by him as provocative and this was particularly so in her refusing to engage with him in response to his various propositions and proposals about how they were going to arrange their lives, the children’s lives and their financial affairs.AFTER PHYSICAL SEPARATION On the evening of the incident, when the mother left the house with the children, she went straight to the police station, taking the children with her. In cross-examination, she said that she did not take the children to her parents’ home, which was reasonably close by, because she thought the husband might be following her. She conceded that she did not see him following her. When the police told the mother they wanted to interview the children and take statements from them she did not demur and she did not seek legal advice about whether she was entitled to refuse to allow the children to be involved. She took the children to the police station the next day to be interviewed. As a consequence, the children, then aged six years and eight years, were interviewed by the police and called as witnesses and cross-examined both before the Local Court and in the appeal. Within a very short time the mother engaged with her therapist, Ms EE and she also consulted a Separation Strategist. The mother did not agree to the father’s spending time with the children other than by attending at their sporting and school functions. In January 2019, the father reported to the police that the vehicle driven by the mother, which was registered to his company, had been stolen. He was well aware that this was false and he also demanded its return from the mother. Without consulting the father, and without his consent, the mother engaged Ms AA, a clinical psychologist to whom she was referred by NN Services, as therapist for the children. The referral letter from the mother’s doctor, dated 24 January 2019, stated that the referral was “for supportive counselling post witnessing physical assault to her mother…” Ms AA’s records refer to three consultations with the children on 21 December 2018, 22 January 2019 and 6 February 2019 although the mother recalled that one of those consultations might have been a phone call and the last did not proceed. Thus it appears that the children had one face to face session with Ms AA. The mother provided “updates” to Ms AA by email. An email of some two pages from the mother to Ms AA dated 31 January 2019 is in evidence. That email sets out the mother’s version of the events of the past week or so. The father was told of the engagement of Ms AA by the mother’s solicitors by letter dated 1 February 2019 by which time the children had engaged in two sessions of therapy. He objected to Ms AA’s continuing to see the children on the basis that she was neither independent nor neutral, an assessment with which Ms AA seemed to disagree. In an email to the father sent on 21 February 2019, Ms AA stated that her purpose was for the children to “talk about what they have been through… in a neutral, safe environment”. It is difficult to understand how Ms AA might have come to the view that her engagement with the children was neutral, having regard to the fact that she had not engaged with the father; had received such information as she had only from the mother; had told the father already that she did not feel comfortable allowing him to come to her office and had not responded to his request that she see him with the children.