Bradley and Bradley (No. 2)

[2007] FamCA 672

FAMILY COURT OF AUSTRALIA

BRADLEY & BRADLEY (NO. 2) [2007] FamCA 672

FAMILY LAW - CHILDREN - Orders - Application to vary interim orders
FAMILY LAW - PROPERTY - Injunctions - Application to vary

Family Law Act 1975 (Cth)

In the marriage of J (1979) FLC 90-718; 5 Fam LR 547
Sieling (1979) FLC 90-627; 35 FLR 458; (1979) 24 ALR 357

APPLICANT: MRS BRADLEY

RESPONDENT: MR BRADLEY

INDEPENDENT CHILDREN’S LAWYER: PEARSONS SCHETZER & ASSOCIATES

FILE NUMBER: MLF 877 of 2006

DATE DELIVERED: 4 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Melilli

SOLICITOR FOR THE APPLICANT: Campbell & Shaw

COUNSEL FOR THE RESPONDENT: Mr Butera

SOLICITOR FOR THE RESPONDENT: F Butera & Co

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr D. Schetzer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Pearsons Schetzer & Associates

Orders

Accordingly I make the following orders:

1. That by 4 pm on Tuesday 10 July 2007, the husband file and serve a notice prescribed by s 67Z of the Family Law Act (a Form 4).

2. The report of Mr H dated 20 June 2007 be marked as Exhibit ICL1 and it is directed that it remain on the Court file.

3. That noting the wife's denial for the necessity for the order, until further order she be restrained from bringing the children the elder son born in July 1998, and younger son born in February 2003 into contact with Mr N.

4. That by 4 pm on Friday 13 July 2007 each party provide to the other a list of names of three real estate agents for the purposes of the appointment of an agent to conduct an auction of the property at E referred to in paragraph 3 of the orders of Bennett J made 18 May 2007.

5. That by 4 pm on Friday 20 July 2007, if there is no agreement as to a nominated estate agent for the sale of the E property, nor agreement as to the terms and conditions of its sale, then the provisions of Rule 15.46 of the Family Law Rules shall apply and the Court shall appoint an estate agent as a single expert.

6. For the purposes of paragraph 5 of these orders each party by 4 pm on 27 July 2007 shall provide to the Registrar of this Court:

   (a)a list of names of three people prepared to act as a single expert and who have agreed to prepare a report and give evidence if necessary for a set fee;

   (b)the terms and conditions proposed for the sale of the E property.

7. Upon the presentation of the list of names and the terms and conditions referred to in paragraph 6 hereof, a Registrar in chambers shall:

   (a)appoint an estate agent as a single expert to conduct the sale of the E property;

   (b)fix the date of an auction of the E property and choose between the terms and conditions of sale from the information provided by each or either of the parties

   and make formal orders accordingly.

8. The parties have liberty to apply in respect of the implementation of paragraphs 5, 6 and 7 of these orders.

9. That the Independent Children's Lawyer be at liberty to seek a further report from Mr H in respect of the issue referred to in paragraph 12 of the husband's affidavit filed 14 June 2007 with a direction that copies of any answer or further report be provided to all parties and to the Court.

10. That the interim applications of the parties be otherwise dismissed.

11. That within 14 days the husband comply with the disclosure requirements of the Family Law Rules and provide to the wife all documents relevant to the agreement made on 8 August 2005 with Mr G

12. That the proceedings be placed in the Trial Notice List for listing before a Registrar on a date to be fixed. 

IT IS CERTIFED

1. I certify for the attendance of counsel

2. I reserve all questions of costs of these interim proceeding.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  877  of 2006

MRS BRADLEY

Applicant

And

MR BRADLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Yesterday in the Judicial Duty List I heard submissions from counsel for both parties and the independent children's lawyer about two primary issues.  The first was the appropriateness of the interim parenting orders, and secondly whether an existing order for the sale of a real property should be discharged.  At the end of the day and after submissions were effectively complete, Senior Counsel for the husband asked me to adjourn the proceedings to enable his client to put into affidavit form some evidence to support what was put in oral form as the basis to discharge the existing orders for the sale of the real property which is the second issue I have to deal with.

2. As I will indicate in my reasons that follow, I propose to refuse to entertain that adjournment application, and to the extent that it might be said to have been already put, I decline to adjourn the case.  Another troubling matter which I also propose to deal with in these reasons is an allegation relating to what I can only describe as sexual abuse of one of the children (if not both), by a third party.

3. That was not one of the two substantive interlocutory issues each party initially canvassed, but it was of sufficient concern to me that I asked what each party saw happening with it. I will deal with that as well, but suffice to say I will not make an order under s 91B of the Family Law Act1975 (Cth) (“the Act”), but I will make an order in relation to the issue.

4. The background of this case is difficult to describe briefly, but I feel it is important to make my own observations as I suspect the case is gathering a litigious life of its own.  The simple facts are that the husband is a health practitioner and business man aged 55 years and this is his second marriage.  The wife is a manager aged 44 years and this is her first marriage.  The parties commenced living together in 1993 and married in 1995.  The children's dispute revolves around their two children the elder son, who was born in July 1998 so he is almost nine, and younger son, born in February 2003 so not long turned four.

5. The husband has two adult children who are university students.  They have sworn affidavits supporting their father as a parent.  The separation process has been tumultuous.  I will not endeavour to define when it finally occurred because the parties seemed to disagree about many things in their relationship.  The husband filed an affidavit in February 2007 decrying the lack of intimacy, affection and other things in the relationship.  My interpretation of what he said is that the only intimacy for most of the marriage seemed to be around the time of the conception of the two children.

6. The remarkable thing now is that the parties are embarking on a parentage testing process under the guidance and control of the Independent Children's Lawyer and at the husband's expense.  I shall return to that. 

7. These proceedings began on 6 December 2006 when the wife filed an application seeking parenting and property orders.  Nine months earlier, the wife had issued similar proceedings but they were shortly thereafter discontinued.  The current proceedings went through a case management process in February 2007 when orders were made for an appointment with a family consultant in respect of children's issues and a conciliation conference relating to financial matters.  On 24 April 2007, the parties attended a conciliation conference at which time the interim case issues were ordered to be heard by a judge on 14 May 2007.  On that day the matter was adjourned to 18 May and the Independent Children's Lawyer was appointed.

8. Until that point in time, the record shows that the wife was seeking residence of the children and for the husband's time with them to be reserved.  She was seeking spousal maintenance, payment of school fees by the husband, an unencumbered home, Mercedes car and otherwise an undefined additional sum or property settlement.  The husband sought equal time with the children, a division of the K home, furniture and a variety of other orders.  The husband to that point had not been represented by lawyers. 

9. The interim hearing came on before Bennett J on 18 May 2007.  The wife was represented by counsel, the husband represented himself again.  Her Honour made a long list of orders and delivered a 28 page judgment.  Her Honour's orders dealt with some of the issues of the parties and adjourned others to the hearing before me yesterday.  The issues left untouched included child support questions and a litigation funding order.  It is common ground that these issues lacked evidentiary support before Bennett J and frankly still do.  I was not asked to deal with those.

10. I paraphrase her Honour's orders by saying that in respect of the children, she ordered a split of nine days and five days, with the wife having the nine days, injunctions concerning the removal of the children from Australia, the appointment of a clinical psychologist to do a welfare or family report, the husband to vacate the K home giving the wife exclusive occupancy, the sale of an E property from which the husband was conducting his part-time health practice and parentage testing orders.  It transpires that the parties do not agree that the vacating of the home went smoothly, but it certainly has occurred.  It also transpires that the parentage testing orders have not been carried out but that seems still to be likely.  Bennett J ordered that in anticipation of the hearing before me each party file any further material by 2 July.

11. Accordingly, when it came before me yesterday I had the advantage of reading her Honour's orders and reasons, together with affidavits filed on behalf of the husband by his two adult sons, his mother, and most importantly three affidavits of his own.  The husband's affidavits were filed on 14 June and two on 29 June.  These affidavits have cover sheets indicating that the husband was legally represented, although some were not internally endorsed with the name of the person who drew them.  This bears on my decision to decline the adjournment sought by the husband.  The wife filed a further affidavit on 2 July 2007 which in essence is a response to the husband's material in updating some matters.  I have read all of these documents.

12. I was also handed a report from Mr H who is a clinical psychologist about the parenting issues.  Before determining the two issues to which I have earlier referred, I must say something about the abuse issue.  In the husband's affidavit filed 14 June 2007 he said referring to a man by the name of Mr N who he has described as the wife's boyfriend:

    During the course of the evening and without any prompting on my part the children have recounted some disturbing events in relation to the situation at home.  The most distressing and which is most concern is the description of a game that the new boyfriend plays with both children.  I was told that they play a game of "hide and seek" and that when he caught the children he would pull their pants down.  [The elder son] stated that the man would look at their genitals and that he had fondled [the elder son’s] penis.  They also complained that he smoked heavily in front of them and in the mother's car. 

    The boys have also complained to me that since the new boyfriend has moved in their mother spends very little time with them preferring the company of the other man, not only sleeping with him at night but also during the day.  This has been very distressing for [the younger son] as he was used to his mother sleeping in his room…

13. The wife filed an affidavit on 2 July by way of reply and she said:

    …[Mr N] (“[Mr N]”) is a person I have known from the age of sixteen.  He and I came from the same town in Malaysia.  I have not seen [Mr N] for some twenty-five years until I met him again at my father's funeral in April 2007.  I stayed for five weeks -

    I presume that means at the funeral:

    The children were with me and I introduced them to him.  [Mr N] is 45 years old and divorced and has four children.  I made [Mr N] aware of the difficulties that I was experiencing with the Husband.  He came to Australia on a visit from the 25 May 2007 until 11 June 2007.  He was staying at a hotel in [K] but following the Husband's behaviour on vacating the house and his threats to me which left me feeling vulnerable and frightened I asked [Mr N] to stay with us. 

    …I made no secret of the fact that [Mr N] was staying at the house.

14. The wife then referred to the specific allegation and said:

    …I say that the children were with me at all times whilst [Mr N] was with us.  [Mr N] played hide and seek and other games with the children.  I deny there was any form of abuse, as the Husband attempts to imply.  [Mr N] does smoke but not inside the house.

15. The allegation is serious because if true apart from amounting to the children being at risk of abuse, there are potential criminal law issues involved. Notwithstanding the fact that the husband was represented by a lawyer who presumably drew the affidavit, no notice of risk of abuse, or notice of abuse itself was filed. Section 67Z of the Act became operative from 1 July 2006. It says:

    Where party to proceedings makes allegation of child abuse

    (1)      This section applies if a party to proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.

    (2)      The party must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

    (3)      If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.

16. The provision is mandatory.  The section applies where a party alleges abuse.  In my view this would include allegations made not only in the affidavit material but allegations raised for the first time in Court.  This is not just some covert allegation, it is a sworn version of what the husband says the child told him.  It is unequivocal.  My view is that having specific regard to s 60CC(1) and (2) where a court is obliged as a primary consideration to protect the child from physical harm or psychological harm, the provision is not to be read down.  The husband's counsel says the husband does not wish the children to be put through an ordeal.  In addition, as will be evident from my orders, there is now an injunction in place without admission, for the wife to preclude the children coming into contact with Mr N. 

17. The rather odd fact also is that I am advised that the psychologist was aware of the issue and made no comment about it. Mr H referred on page 2 of his report that he had read the material and did refer to the husband's affidavit in which the allegation appears. I raised the issue of whether I should make an order under s 91B inviting the Department of Human Services to intervene. Having regard to the more important issues in s 67Z I propose to follow the mandatory path rather than the invitation in s 91B. Just to make abundantly clear, it seems to me that this is not an issue within the control of the parties such that they may have a right to simply retract the affidavit or even agree to discharge my order.

18. Notwithstanding that the Court is not obliged to vet every consent order, there is in my view, a strong onus on the Court imposed by parliament to take abuse issues seriously.  I take that as a matter in which I should follow the mandatory path.  Before leaving the issue I should say that the Independent Children's Lawyer is troubled about the issue, but also understands the family dynamics and the further difficulties that my order will create, and also that the parties had agreed to pursue the question with Mr H.  It may be that after sober consideration, the investigation is not conducted if the parties can satisfy the relevant authorities that the psychologist has already dealt appropriately with it, and combined with my injunctive orders, the issue of protection of the children becomes no longer an issue. 

19. I turn then to substantive issues.  Firstly the children.  The wife's position was that she wanted to vary the orders of Bennett J to return the children earlier than so ordered, but extend the time for the alternate week giving the husband a greater amount of time than Bennett J ordered.  The husband's position was to leave the position as ordered by Bennett J.  The Independent Children's Lawyer's position did not support the wife.  The wife's position was based on two reasons.  The first was that the long weekend caused problems for organising the children and their requisite needs for the ensuing week.  They had to carry all of those needs with them over the long weekend, and when the wife ultimately got their goods and chattels back, not only had no laundry been done, but even their plastic lunchboxes were not washed.  The second issue was that the wife wanted to take the children to church on a Sunday evening, thus requesting the order be abridged to bring them back on Sunday afternoon at 4 pm. 

20. The wife highlighted the failing of the husband in respect of the laundry.  I agree, and as I indicated, it reflected poor parenting, but that is a matter for the final trial and I for one would take a dim view of that at trial if a parent sought major responsibility for children without any evidence of capacity to do simple things like laundry.  However, the issue seems to me to be more one of inconvenience for the wife rather than affecting the best interests of the children.  The religious issue also puzzles me in circumstances where the parties allege against each other irresponsible behaviour, yet want to have the children engage in limited weekend spiritual events.  There is a certain illogical notion here.

21. The husband says spiritual attendances have not been high in past priorities.  As with the laundry issue, it seemed more of an adult issue than one relating to the children's welfare.  Mr Schetzer agrees.  None of these issues were raised with Mr H or at least gave rise to a concern sufficient for him to mention them in his report.  Turning to his report which I found helpful and which I have relied on, Mr H said:

    …The literature and research on equally shared time and care indicates that for optimal outcomes in this arrangement a set of prerequisite conditions should prevail in the post parenting relationship.  These include amongst others, a high level of cooperative communication, a low level of conflict, a joint commitment to the concept, and a significant level of alignment in parenting values and social mores. 

    This provides the children with a relatively seamless transition between households and continuity of care in the absence of conflict, enabling the child to make the difficult transitions with as little disruption to their lives, relationships, schooling and social commitments as possible. 

22. He then said:

    …The periods of harmony, trust, and cooperation they may have experienced with each other, appear to be lost to them as a model to co-parenting the children at this point in time.  It is significant that [the elder son] identifies one of the positives of the separation as a lessening of the parental arguing and shouting.  Equally shared care is not recommended in this context at this point in time.

23. He then went on to say:

    …It is the report writer's opinion that the Honourable Justice Bennett's interim order from the 18 May 2007 has struck the appropriate balance of time required, given the issues addressed in this report, and the need to maintain a significant relationship between the children and their father. 

    However, [the mother’s] proposal would vary the current Orders by having the children return on the Sunday in week one, and extending the time to Thursday in week two.  There is some anecdotal clinical evidence to suggest that this minor alteration would be of some benefit to the children. 

    It is a common phenomena largely observed by clinicians and parents that children transitioning between households for the purpose of spending time with parents, at times, experience minor “spikes” of anxiety.  This usually manifests in minor behavioural difficulties as the child re-engages with the parent and settles.  The children may well benefit from having more time to settle with [the mother] and prepare for the school week ahead in their primary residence.  However, it is not a significant issue and I have no formal recommendation around it.

1. In the circumstances, and particularly having regard to my comments about the wife's reasons for varying Bennett J's orders, I decline to vary the orders.  I propose to mark the Mr H report as exhibit ICL1 and direct it remain on the Court file.

2. The second issue relates to the E property.  Bennett J made the following orders:

   3.   That parties do all acts and things necessary to enable the husband to sell the commercial property situate at and known as E being the land more particularly described in Certificate of Title volume … folio … (“the [E] property”) on such terms and conditions to be agreed between the parties and, in the absence of agreement, to be determined by the court on the return date.

   4.   That in the event that either or both parties seek that the Court determine any terms or conditions of the sale by the husband of the [E] property, he/she file and serve any evidence that he/she wishes to rely on in sufficient time to permit the other party to consider and respond to that evidence if he/she so desires.

3. Her Honour in her reasons said the following:

   The husband is a qualified [health] practitioner who has not been in full‑time employment as such for approximately 10 or 12 years.  He currently works part-time, some four days or so per week, from a commercial premises which he owns in [E] and derives income from share dividends and rent.  He doubts that he could work for anyone but himself.  As a consequence of orders which I have made, by consent, providing for the sale of the [E], the husband will either have to find alternative premises from which to operate a surgery or negotiate a tenancy with the purchaser.  I suggested that he seek employment on a PAYE basis.  He said that an employee [health] practitioner is not paid enough.  He rejected the proposition that some income is better than no income.  In the event that the husband does cease to actually earn an income, it is likely that his income earning capacity will be an issue in these proceedings.

4. Her Honour went on to say:

   …The husband strenuously resists any limitation or restriction on his ability to deal with property holdings of the parties, principally: a commercial property which the husband owned prior to the commencement of cohabitation at [E]...

5. Her Honour then went on to say the following:

   I have had extensive discussions with the husband in relation to the interlocutory relief which was sought by the wife.  The relief was sought in more narrow terms than the minutes that her Counsel handed up at the beginning of the hearing.  I formed the view that the orders sought by the wife at that time were unnecessarily broad and impracticable.  The injunctions which I have made are designed to allow the husband some flexibility to deal with various assets whilst retaining an asset neutral or asset positive position for the parties.  That means he can sell shares, he can sell cars, but if he does so he must apply the proceeds in reduction of debt.  He can sell the property in [E] but he must do so promptly having regard to his evidence that the property has been vacant for a year and that the interest payments in respect of that property are some $12,000 per month.

6. Her Honour then went on to say that something like $250,000 had been paid in periodic interest in respect of that particular property. The husband now seeks that I discharge her Honour's orders on the basis that he has paid out the encumbrance that her Honour saw as a dire problem for the parties. The wife's position is firstly that the husband had a right of appeal and did not exercise it, and secondly there is no jurisdiction to amend the order but in any event even if there is, there is no evidence upon which I could justify making any variation. Section 114 of the Act was the statutory basis for her Honour's orders. It reads:

   (1)      In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

   (a)an injunction for the personal protection of a party to the marriage;

   (b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   (c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

   (d)an injunction for the protection of the marital relationship;

   (e)an injunction in relation to the property of a party to the marriage; or

   (f)an injunction relating to the use or occupancy of the matrimonial home.

7. It seems clear that the orders relating to the E property were injunctions.  The authorities have always said that in making injunctions the Court should impose the minimum restrictions that are necessary to protect the applicant's  79 claim.  For example see the case of Sieling (1979) FLC 90-627; 35 FLR 458; (1979) 24 ALR 357. These orders were of an interlocutory nature. Although statutory, the provision refers to a court only making a discretionary order that it considers proper. There are authorities indicating that equitable principles apply here. For example see, In the marriage of J (1979) FLC 90-718; 5 Fam LR 547. The Act does not place any limit on the discretion and so a referral to the equitable principles is not particularly helpful. Having said that, this order is a positive injunction and one of a nature designed to protect the parties' resources for the reasons articulated by Bennett J.

8. It is therefore an interlocutory mandatory injunction.  I think the principle therefore is set out in the fourth division of Meagher, Gummow and Lehane[1] at paragraph 21-405:

   An interlocutory injunction will last for whatever time it is expressed to last.  Usually it is expressed to last until the final hearing or further order.  However, whilst it lasts the court will not, except in the most exceptional circumstances, entertain an application to dissolve it.  Where, however, an application for an interlocutory injunction is stood over, on the defendant's undertaking in terms of the injunction sought, and the defendant at the time of proffering the undertaking intimates that he contemplates moving for the discharge of the undertaking, a motion to discharge his undertaking will be entertained before the final hearing.

   [1]          Equity: Doctrines and Remedies, 4^th edition, Butterworths LexisNexis, Australia, 2002

9. That clearly indicates that there is power for courts to vary injunctions where the needs for them change.  However, as the learned authors caution it should only be done in “the most exceptional circumstances”.  Here the injunction has not been implemented and the husband argues that there is now no need for it for reasons that I will turn to.  The husband says through his counsel that he has sold shares and paid out the pressing liability.  Furthermore, he wants to work from the premises.  Bennett J as I mentioned looked at all of this.  Notwithstanding what the husband's counsel put, all of these assertions were not admissible evidence and certainly not evidence upon which I could make a decision in any circumstances, let alone exceptional circumstances.

10. Counsel's position then was to seek an adjournment quoting authority that an adjournment should be granted if there was material available that could be called.  The issues for me however, are firstly that the prejudice that the wife suffers by having to return to court is not necessarily covered by the cost orders that would follow.  Secondly, the orders of Bennett J were not of a final nature, so there are other avenues open, including in my view a proper application based on comprehensive material to set aside the injunction, and again I refer back to the quote from the learned authors that I just mentioned. 

11. The other issue of course is the Court's resources which must be taken into account.  Here the husband was represented by a lawyer, he had the clear orders of Bennett J about filing material and filed affidavits which make no mention of what his counsel put as evidence justifying the discharge of the injunction.  The problem is exacerbated by the fact that chronologically, (a) the discussion before Bennett J highlighted the dire problem about not doing anything about the financial haemorrhaging, (b) the husband filed his material and counsel argued his case without referring to an adjournment until after having put his submission, (c) the husband in his affidavit sworn only last Friday said:

    …I say that the order to sell the [E] property will greatly inconvenience me in earning income from my [business] as a [health] practitioner.  My [business] has been conducted from the [E] building since 1988 and all of the [clients] know it.  I cannot move the [business] to another building, as the [clients] would not follow me.  It is difficult to find work as an employee because the employer will demand that I work hours to suit him whilst I desire to have flexible working hours so that I can look after my children.  My children are the most important thing in my life and I want to ensure that I continue to have a good relationship with them…

12. Part of that of course was raised by Bennett J in her reasons for judgment.  She in fact made the suggestion that the husband might negotiate with a potential purchaser.  In addition, I have the dilemma of the husband now saying that he only wants the limited time that her Honour ordered he spend with the children.  Another problem is that the wife's counsel produced a letter from the husband to the Child Support Agency dated 21 June 2007, only two weeks ago, saying as follows:

    I have submitted an application to have my CSA payments reviewed, asking for a zero assessment.  This is based on monthly expenses being higher than my income for the last 18 months.  A new Asset and Liability statement shows liabilities exceed assets. 

13. I do not have the confidence that the position of the husband is at all clear.  Bennett J made observations about the husband admitting in his conduct to producing false documents to trap the wife.

14. I do not accept therefore that I have any evidence of any new fact or circumstance which would justify me discharging the mandatory injunction.  To that extent, the orders of Bennett J remain in force.  As the terms of the sale have not been agreed as was anticipated by her Honour, I intend to use Chapter 15 of the Family Law Rules and direct that if no agreement is forthcoming, a registrar will appoint an agent along with making an order about the implementation of the sale. 

I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 10 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRADLEY & BRADLEY