Bradbury & Lander (No. 3)
[2020] FamCA 982
•25 November 2020
FAMILY COURT OF AUSTRALIA
Bradbury & Lander (No. 3) [2020] FamCA 982
File number(s): CAC 239 of 2017 Judgment of: GILL J Date of judgment: 25 November 2020 Catchwords: FAMILY LAW – Interim proceeding – cross applications to vary interim orders with respect to the 2020/2021 Christmas school holiday period – best interests of the child – interim orders made – application for appointment of a Single Expert – application dismissed – application for interim property relief – uncertainty as to whether the orders sought would undermine the making of final orders as to the property – application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 62G, 79, 80 Cases cited: Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166
Wenz v Archer (2008) 40 Fam LR 212
Zadenev v Zadenev [2013] FAMCA 838
Number of paragraphs: 36 Date of hearing: 20 November 2020 Place: Canberra Solicitor for the Applicant: Infinity Legal Solicitor for the Respondent: Self-representing Solicitor for the Independent Children's Lawyer: Ms Burgess ORDERS
CAC 239 of 2017 BETWEEN: MR BRADBURY
Applicant
AND: MS LANDER
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS THAT:
1.Orders 12 and 13 of the Orders of 24 January 2019 are discharged.
2.It is noted that the orders currently provide for Y to live with the father.
3.That the child Y shall spend time with her mother during the 2020/2021 Term 4 school holiday period as follows:
(a)From 2 pm 23 December 2020 to 12 pm 25 December 2020;
(b)From 2 pm 31 December to 2 pm 2 January.
(c)From 3 pm Saturday to 3 pm Monday each weekend of the holidays beginning on Saturday 9 January 2021, except for the last weekend of the holidays on which weekend there shall be no visit.
4.Unless agreed otherwise in writing, the changeovers for school holiday time shall take place in Canberra.
5.The parties may vary the arrangements provided for in these Orders by agreement in writing (including by text message).
6.Changeover during the 2020/2021 Term 4 school holiday period shall occur as follows:
(i)Where a party nominates to the other parent in writing (including text message) a third party to undertake that handover, then the third party may deliver Y to the other parent's home.
(ii)In the absence of a nominated third party, handover shall occur on R Street outside the Suburb D police station, within view of the station security cameras, and the parents shall not approach within 3 metres of each other or communicate directly other than by text message.
Single Expert
7.The mother’s application for the appointment of a single expert is dismissed.
Family Report
8.Further order to that of the orders made on 5 November 2020, pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)Either of the child’s parents; or
(ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has/have been living;
including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;
(a)The capacity of:
(i)Each of the child’s parents; and
(ii)Any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;
(a)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;
(b)If the child is an Aboriginal or Torres Strait Islander child:
(i)The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)The likely impact any proposed parenting order will have on that right;
(c)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;
(d)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;
(e)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.
9.In preparing the family report the Family Consultant is entitled to have regard to the trial affidavits of the parties and their witnesses.
Interim property settlement
10.The mother’s application for interim property settlement is dismissed.
IT IS FURTHER ORDERED THAT
11.The trial is tentatively listed for a period of 5 days commencing at 10 am on 7 June 2021.
12.Unless a party has otherwise sought relief from the Court, the trial listed for June 2021 is to be an in-person appearance.
13.The matter is further adjourned for further directions to 12 pm on 4 February 2021 on which occasion the matter will be an in-person appearance.
14.The next time the matter is listed either before the Registrar or the Court it is a designated a court event for the notification of costs pursuant to Rule 19.04.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This judgment concerns three matters, being the arrangements for the child of the relationship, Y, born in 2013, across the Christmas 2020-2021 school holiday period, the potential appointment of a Single Expert to prepare a report for the proceedings, rather than the current order for the preparation of a family report pursuant to s 62G, and an interim property distribution.
Material relied upon
The mother relied upon:
(a)Her application in a case filed 29 October 2020;
(b)Her affidavit filed 29 October 2020;
(c)Her balance sheet filed 18 November 2020; and
(d)Her financial statement filed 21 December 2019.
The father relied upon:
(a)Amended Initiating Application of Mr Bradbury filed 29 October 2020;
(b)His affidavit filed 29 October 2020;
(c)Affidavit of Ms E filed 29 October 2020;
(d)Affidavit of Ms S filed 29 October 2020;
(e)Affidavit of Ms T filed 29 October 2020;
(f)Financial Statement of Mr Bradbury filed 29 October 2020;
(g)His balance sheet filed 18 November 2020; and
(h)Case outline dated 19 November 2020.
The school holiday issue
The current orders relating to school holiday time, being the orders of 24 January 2019, do not provide for the shortly upcoming holiday period. Both parties seek orders for that period, and say that the orders made for the previous Christmas school holiday period are unsuitable.
The non-holiday arrangement is for Y to live with the father and have overnight time with the mother each Saturday.
The orders for the mid-year school holiday periods provide for Y to spend time with the mother from the first Saturday to the following Wednesday of those holiday periods.
The mother’s position is that there should be week about time for the Christmas holiday period, with particular arrangements for Christmas Eve-Day and for Y’s birthday.
The father’s position is that Y should spend time with the mother from 2 pm 26 December until 2 pm 28 December, and 2 pm 31 December until 2 pm 2 January. Aside from that, he proposes that from 9 January, Y spend time with the mother each weekend from Saturday to Monday. He proposes that the time be in Brisbane for the period up to 2 January, then in Canberra. This aspect occurs in the context that each of the parties has family in Brisbane, but that the mother says that she cannot fund travel to Brisbane and that the father would need to pay her expenses.
This issue falls to be determined by the best interests of Y, on consideration of the matters set out at s 60CC, in the context of interim proceedings in which evidence is unable to be tested and the court is called upon to rely, where possible, on non-controversial, or corroborated matters, while still assessing the potential risks associated with the proposed arrangements for the child.
Those considerations fell narrowly in relation to the Christmas holiday issue.
Firstly, neither parent thought that the arrangements for the previous Christmas, which saw Y changeover between her parents each 48 hours, was in Y’s best interests. Each identified Y to have been unsettled by the arrangements.
The material from the father and his family members described that the previous Christmas arrangements had led to Y being tired, irritable, rude and aggressive.
Secondly, whatever arrangements are to be put into place occur in a context of grave limitations in the parent’s ability to cooperate or communicate, illustrated by each having obtained a Family Violence order against the other. The mother currently faces criminal proceedings in relation to alleged breach of the father’s Family Violence order.
Thirdly, the currently restrictive arrangements for Y to spend time with her mother have been in place since January 2019. At that stage they marked a reduction in Y’s time with the mother. The restrictive arrangements occur in a context of opposing cases as to parental capacity and risk.
Fourthly, the material relied upon by the mother in support of the change to holiday time lacked substance. As with previous iterations of the mother’s affidavit material, it was replete with argument and submission, and limited in evidential content.
Although there is no principle that presumes the preservation of the status quo, the impact of a change in a child’s circumstances forms one of the considerations under s 60CC. The mother sought a sharp change in the arrangements for Y, without leading evidence to show such a change is desirable.
The material spoke to the desirability of some change in the Christmas holiday arrangements for Y, without supporting a major change in her circumstances. One aspect of change submitted for by the mother was to avoid a replication of the pattern that sees her not see Y for one and a half weeks across each school holiday break. She submitted that such an arrangement presented too long a gap for Y.
The proposal of the father would see an increase in Y’s time with the mother across school holiday periods by one day each week, to give her two nights each weekend. This reflects the same frequency as is currently in place during term time, and avoids the gap the mother asserted should be avoided. It does not result in the sharp change submitted for by the mother, but does avoid the frequent changeovers that were problematic across the previous Christmas break.
The general pattern sought by the father should be adopted. It takes advantage of the school holiday time by increasing Y’s time with her mother across the holidays without disturbing the current pattern of time. It allows for consistency in the current arrangements, without the greater need for interaction between the parties that may be required as a result of the mother’s orders sought.
That, however, does not resolve the other Christmas issues. The father seeks that time occur in Brisbane. The mother is supportive of that if the father is to pay for it. He resists such an order. He asserts a lack of capacity. His Financial Statement supports that assertion. That leaves the possibilities as Y spending a period at Christmas time in Brisbane with the father and his family, but not the mother, or both parties remaining in Canberra and Y having time with each of them.
While refusing the father’s application that the time occur in Brisbane would see Y miss out on time with her broader family, where the time with the mother is currently limited, it is appropriate that the Christmas and birthday events be shared between the parents. By their applications, they have each illustrated the importance that they assign to those events and, implicitly, the importance of Y having time with each in celebration of such.
Accordingly, orders will be made that provide for the sharing of both Christmas day and Y’s birthday, such being accommodated by the geographical proximity of the parties in Canberra. Given the mother’s pursuit of time with Y on Christmas morning, the orders will provide for such.
If it turns out that the mother is able and willing to fund travel to Brisbane, such an arrangement will be available on the parties’ written agreement.
Single Expert
In a complex case such as this, it is often useful to have a single expert with particular expertise give evidence. In this case, a family report has been ordered pursuant to s 62G in order to provide the Court with appropriate material to determine Y’s best interests. The mother seeks the appointment of a single expert, in substitution for the s 62G report. However, although she nominated a particular expert and asserted particular expertise held by that proposed expert, she produced no evidence as to that expertise. She adduced no evidence as to the expert’s availability or proposed cost. Similarly, the mother produced no evidence, merely assertion, as to the particular matters that should be reported on as requiring the special expertise that she attributed to the suggested expert.
In those circumstances, the mother’s application fails as she has not proven the matters necessary to justify the appointment.
Interim property adjustment
The mother’s evidence was highly suggestive of the mother being in very difficult financial circumstances. She asserts that she is on the brink of bankruptcy, which may well be the case.
She seeks, to remedy this, that there be a drawing against the equity in the former matrimonial home, it being undisputed that there is approximately $200 000 in equity for that property (see the parties’ balance sheets).
The mother’s application draws upon the power to adjust property contained at s 79 of the Act.
The law governing the making of an interim property distribution was set out in the Full Court case of Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166 (“Strahan”).
In Zadenev v Zadenev [2013] FAMCA 838, Watts J stated that there are two steps to interim property decisions, firstly that s 80(1)(h) is “enlivened” and secondly that ‘as was discussed in Harris and confirmed in Strahan, the second step in making an interim property order is to have regard to the usual matters in a s 79 order (ss 79(2) and 79(4) FLA).’
The first step involves the consideration of whether there should be an exercise of the s 79 power in advance of the final hearing, it generally being preferable that there be a single exercise of the power. In Strahan, the Full Court approved the analysis of Reithmuller FM in Wenz v Archer (2008) 40 Fam LR 212 that identified that what was required for a partial exercise of the power is that there be adequately justifying circumstances, justifying the step as in the interests of justice.
In Strahan, the Full Court identified the need for such an interim step to form part of the final exercise of the power. It was identified that it is necessary to be somewhat conservative at the interim stage to ensure that the final exercise of the power is not compromised.
Here, without embarking on a full analysis, it is the potential compromise of the exercise of the power that tells against the mother’s application.
In this case, there must be significant uncertainty as to whether the orders sought by the mother would undermine the making of final orders as to the property. On the mother’s balance sheet, excluding the loans/add-back in respect of the father’s legal costs, there is only approximately $100,000 in the net pool. Although the mother asserts that a different construction should be placed upon the pool such that only the former matrimonial home should count, on her construction of the balance sheet there is, at least, the prospect that the order she seeks, or in fact any order for interim distribution, would prejudice the remaining pool to such an extent as to work an injustice, incapable of being remedied by further adjustment.
The Full Court has spoken of the preference for a single exercise of the s 79 discretion at the end of the case. While circumstances may justify a departure from the preferred approach, this case is a good illustration of why a single exercise should be preferred.
The mother’s application for an interim property distribution is refused.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 November 2020
0