Brandella & Brandella

[2008] FamCA 275

FAMILY COURT OF AUSTRALIA

BRANDELLA & BRANDELLA [2008] FamCA 275

FAMILY LAW – PROPERTY – interim injunctions of a financial nature

FAMILY LAW – CHILDREN – interim parenting orders – need to accord matter an adequate interim hearing where final hearing is not available and would be premature and before interim issues become too unwieldy to accommodate

FAMILY LAW – PRACTICE AND PROCEDURE - hearing of two days allocated to interim issues

Family Law Act 1975 (Cth)

APPLICANT: Mrs Brandella

RESPONDENT: Mr Brandella

INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

FILE NUMBER: MLC 10215 of 2007

DATE DELIVERED: 5 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Wilson

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr M.M. Ramsey

SOLICITOR FOR THE RESPONDENT: Secombs

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr P.A. O'Connell

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Septimus Jones & Lee

Orders

1. That the further hearing of the wife’s application filed on 15 November 2007 and the husband’s application filed on 21 November 2007, wherein he seeks a discharge of orders made on 26 September 2007, be adjourned for a hearing of not more than 2 days duration to commence on Monday 21 April 2008 at 10am. 

2. That the husband forthwith do acts and things necessary to cause to be withdrawn from the Westpac Maxi Direct Account, number … the sum of $3000 such monies to be paid to the solicitors for the wife for payment out to the wife without deduction for legal fees. 

3. That the husband forthwith do all acts and things necessary to withdraw from the Westpac Choice Account, number … the sum of $2000 and with that to forthwith acquire the owner builder insurance and thereafter the Certificate Occupancy deposed to by him in paragraph 19 of his affidavit sworn 4 February 2008. 

4. That pending compliance by the husband with the two preceding paragraphs hereof, the husband be restrained by injunction from causing, permitting or suffering the balance of the funds which would remain after the withdrawals to be used for any other purpose. 

5. That upon compliance with paragraph 3 hereof the husband notify the wife via their respective solicitors of having obtained building insurance and forthwith upon same becoming available to him a copy of the Certificate Occupancy. 

6. That insofar as the wife’s form 2 application filed 15 November 2007 constitutes an enforcement application the wife be relieved from compliance with the Family Law Rules 2004 in respect of any specific requirements for enforcement applications. 

7. That in anticipation of the hearing:-

   (a)by not later than 25 March 2008, the husband file and serve any further affidavit material or proofs of evidence upon which he proposes to rely in relation to matters to be determined on 21 April 2008; and

   (b)by not later than 7 April 2008, the wife file and serve any further affidavit material upon which she proposes to rely. 

8. For the avoidance of doubt, my reversal of the order in which the applicant and respondent are to file affidavits does not alter the order in which their cases are to be presented at the hearing (which is a matter within the discretion of the presiding Judge). 

9. That by way of limited discovery and/or disclosure the husband and the wife each comply within 14 days with any reasonable request from the other, via their respective solicitors, for the production of documents relevant to the interim matters. 

10. That in the event that there arises some issue relevant to the interim hearing and/or the preparedness of the matter to proceed on 21 April 2008 the parties may contact my Associate and request that the matter be mentioned before me. 

BY CONSENT IT IS FURTHER ORDERED:

1. That each party forthwith do all acts and things and sign all documents to authorise R Real Estate to sell the property at B by public auction in about 8 weeks time upon such terms as the selling agent may recommend provided always that the reserve price is in the range of between $900,000 and $1,000,000.

2. That in the event either party fails to sign any document required to give effect to paragraph 11 of these orders the Registrar of the court is authorised to sign on behalf of the that party pursuant to section 106A of the Family Law Act 1975.

3. That the husband forthwith comply with all requests or recommendations of the selling agent with respect to presentation of the property for sale. 

4. And it is noted that the three preceding orders which were sought by consent are to be read in addition to the orders for the sale of the former matrimonial home made on 26 September 2007. 

IT IS FURTHER ORDERED BY THE COURT:

1. That until the hearing on 21 April 2008 the children of the marriage W born … April 2002 and D born … January 2004 live with the husband as follows:-

   (a)On a two out of three weekend cycle from the conclusion of school on Thursday (or if it is not a school day from 2pm on Thursday) which the conclusion of school on Monday (or if Monday is not a school day, 10am on Monday) to commence Thursday 8 February 2008;

   (b)On the Wednesday which immediately precedes a weekend on which the children do not reside with the husband, from the conclusion of school on the Wednesday (or if Wednesday is not a school day, 2pm) to the commencement of school on Thursday (or if Thursday is not a school day, 10am) to commence on 20 February 2008;

   (c)At such further or other times as may be agreed. 

2. That pending the hearing on 21 April 2008 the children live with the wife at all other times other than those provided for in the preceding paragraph.

3. That pending the hearing on 21 April 2008:-

   (a)Any changeovers for the children between the wife and the husband which are expressed to be at the conclusion or commencement of school take place at R School;

   (b)Any commencement or conclusion of the living arrangements which falls on a non school day is to take place outside the station of Victoria Police at R;

   (c)The husband be in personal attendance with each of the children during all times that the children live with him and the husband not leave the children in the care of any other person save for in the event of an unforseen emergency and then:-

   (i)that person be a responsible adult carer;

   (ii)the husband take reasonable steps to notify the wife of the name and address of the responsible adult carer and the location of the children and a brief description of the emergency;

   (iii)the husband take reasonable steps to have the children made available to her for the period of his inability to care for the children himself.

4. That without limiting the operation of the provisions of paragraph 17 hereof, the husband ensure that neither of the children are left in the company of J Brandella without a responsible adult being present. 

5. That the parties do all acts and things reasonable required to enable a further report to be prepared by Mr P, psychologist, to be ready and released for the hearing on 21 April 2008.  Such report to be at the sole expense of the husband initially.  In the event that a further assessment report can not be released by Mr P prior to the scheduled date of hearing no such further assessment take place.  In the event that the husband is unable to pay the cost of the report he detail on affidavit the circumstances giving rise to his inability and IT IS NOTED that the husband informed the Court that he would borrow one half of the cost of the report estimated at $3000 in total from his father. 

6. That in relation to parenting matters the parties observe the time frame for the filing of further affidavit material as is set out earlier in these orders in relation to property matters in paragraph 7 hereof. 

7. That the parenting arrangements in paragraph 15 hereof continue throughout any school holiday period. 

8. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the court file.

9. That the independent children’s lawyer be at liberty to photocopy any documents produced on subpoena including for the purpose of publishing same to any single expert witness such as Mr P. 

10. That until further order the husband not cause, permit or suffer the children or either of them to travel in his truck unless they are appropriately restrained. 

11. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

AND THE COURT NOTES that the husband did not oppose the restraint contained in paragraph 18 of these Orders but does not admit the need for same. 

IT IS NOTED that publication of this judgment under the pseudonym Brandella & Brandella is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10215 of 2007

MRS BRANDELLA

Applicant

And

MR BRANDELLA

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me as an application for interim financial orders and parenting orders involving the two children of the marriage W born in April 2002 and D born in January 2004.

2. The applicant is the wife and the respondent is the husband. The parties commenced living together in 2000.  The parties married in June 2001 and they separated under the one roof on 14 August 2007. 

3. The husband has two children from a prior relationship, J Brandella who is 10 years old and R Brandella who is 16 years old.  Since about 2002 he has had sole care of those children.

4. The wife's application was filed on 15 November 2007. The husband's response to that application was filed on 21 November 2007.

5. I will deal with the financial matters first. This matter is in the long‑defended judicial duty list where matters are allocated up to half a day for hearing.  That is not sufficient time for this case.  After hearing the competing applications in relation to interim financial matters it is clear that the financial dispute should be determined as a matter of urgency. The parties need a proper opportunity to put their case before the issues become too unwieldy to manage on an interim basis.  A two‑day place is available for this matter commencing on 21 April 2007 and I adjourn this matter to be determined on an interim basis in full, at that time. 

FINANCIAL MATTERS

1. The wife's application is that the husband be ordered to pay some moneys on account of funds owing to her under previous orders.  She says that the arrears owing under the orders of 26 September, 2007 amount to about $6600, exclusive of any moneys which may be owing for health insurance. 

2. That former matrimonial home was the property at B.  Pursuant to orders made on 26 September 2007 by Young J, the wife vacated that property.  The husband became responsible for some moving costs, a payment to the wife of $260 per week, which is not characterised but is to be paid by way of periodic rental for the wife.  The husband was also ordered to pay the sum of $400 per week direct to the wife.  Those payments are also not characterised.

3. The wife relocated to a property at R.  The husband has paid some of the rent pursuant to the order, but by no means all of it.  He last made any payment on 16 December but that did not bring the rent up to date.  It is agreed that there is at least $1820 owing by way of rent today. 

4. It is agreed that the husband last made a direct periodic payment of $400 per week at the end of December, 2007 but that he was in arrears of payments at the time.  The wife claims the husband is now $4800 in arrears of those payments.  The husband says it is more like $3200.  There are also arrears owing to the health insurer for the family of $260, representing one month's premium.

5. The wife's affidavit material refers to pre‑cohabitation contributions.  The limited reference I have had to it, indicates that during the marriage she was primarily a home‑maker and parent.  She tended to some of the book work for the husband’s business, and the husband was the income‑earner.  The husband’s position is that the wife controlled the purse strings and had a superior knowledge of the parties' financial dealings. 

6. It is a case with a lot of detail but, it seems to me, not much direction in a commercial sense.  Some of the detail includes the 2006 returns of the husband's business of $361,000 from a business he operates as a sole trader.  His expenses in that year were something like $256,000.  With the benefit of carried forward losses, he took a profit and there was available to the family, an operating profit of about $105,000. The husband paid tax on the 2006 profit of $81,000.  The profit margin seemed to be about 30 per cent. That is, expenses accounted for about 70 per cent of the gross receipts.

7. I am informed that in 2007 the gross income of the business rose to $543,700, but the expenses rose very significantly, so that they, if the financial returns are accurate, accounted for some 99 per cent of the gross earnings.  According to those returns, there was only $420 available to the husband with which to support the family.  The husband says that the wife was in control of the financial records at that time.

8. The picture that I have of the husband's financial affairs is that his financial situation is dire indeed.  He says he has control of something less than $9,000 in the bank and very significant debts.  Many of these debts are debts related to his business and they are debts of a periodic nature.  For instance, he is not meeting lease payments on various machinery.  A significant amount of debt is attributable to credit cards, which he has operated and probably lived from. 

9. In October last year the husband spent some $18,000 on furniture and bed linen for the former matrimonial home.  All of that expense was placed on credit cards.  He also accepted $2,700 from his father.  It is unclear as to whether these funds were advanced by way of loan or to pay for some part of a lounge suite.  In the scheme of things, they appear to have been extravagant expenditures having regard to his available means.

10. Getting back to what funds are now available, the husband says:-

    a)there is $3,984 in a Westpac Max‑i Direct account, against which the husband has earmarked liabilities of $4684 for truck repayments and $2277 for a repayments on equipment for his business.  Also earmarked against the $4367 is his liability to Diners Club in the sum of $5000;

    b)there is $4367 in a Westpac Choice account, against which the husband has earmarked $5310 for two months of instalments which are owing for repayments on equipment for his business and a Voyager motor vehicle which the parties purchased during the marriage and which is worth, on his estimation, about $52,000 and in respect of which the payout figure would be in excess of $70,000. 

11. On the evidence, the husband is attempting to preserve monies for payment of business debts.  Yet these debts have not been paid.  If the husband had intended to meet the significant business expenses then he has had the last two months in which to do so from the monies he held but he has not done so, for reasons that have not been advanced.  If the husband’s assertions are correct, he could not have met all of the business expenses, but he could have met some and he could have come to court today less in arrears of business outgoings than he is.

12. I asked Mr Ramsey for the husband to address me on why I should not consider the husband's financial situation to be hopeless.  He responded by submitting that it was the husband’s sincere position that he sought to trade out of debt.  He submitted that if the husband just has some respite from his responsibilities toward the wife and the two younger children, in a financial sense, and to be able to negotiate with his creditors, then he could work his way back into a profitable business. The difficulty with that submission is that the husband has not been making any contributions to the wife's finances for at least one month now, if not before that, and still his financial circumstances remain bleak. 

13. I verified with counsel for the husband and the wife that there is no entity involved, that the husband operates his business as a sole trader. 

14. Another financial impost on the parties is that the former matrimonial home has not been the subject of a certificate of occupancy, notwithstanding that there is agreement to sell this property. There is also an order that it be sold pursuant to orders made by Young J on 26 September, 2007.  I am not addressed by either counsel as to whether or not a certificate of occupancy is issuable for this property. I am unable to assess the accuracy of paragraph 19 of the husband's affidavit sworn 4 February 2008 wherein he deposes:

    Save for obtaining of a certificate of owner/builder's insurance and paying for same (it will cost $2000) all other necessary steps have been undertaken by me to ready the property for sale.  Attached hereto and marked "MB2" is a copy of the certificate of occupancy which means the property can now be listed for sale.  The parties -

    he means himself and the wife -

    will have to obtain a Certificate of Owner/Builder Insurance and somehow fund the $2000 fee payable to obtain same.  Myself and my family and friends have spent a lot of time preparing the property for sale as best as possible.

15. However, upon examination, it is not a certificate of occupancy, it is a certificate of final inspection issued by WestSide Building Surveying (Victoria) Pty Ltd, which has next to the Date of Inspection a blank, in addition to both a blank Date of Issue and Certificate Number.

16. The husband's case has remained that $2000 is required to secure house insurance and once that insurance has been obtained, a certificate of occupancy will issue.  Counsel for the wife says that the husband ought to be responsible for obtaining a certificate of occupancy and should do from the invested funds.  I accept that submission.  I also accept the wife is living in rental accommodation with two young children and the rental is in arrears. She is in urgent need of support. 

17. In the circumstances of this case I am prepared to make an order that the husband pay the wife $3000 from the Westpac Max‑i Direct account and $2000 from the Westpac Choice account, the latter sum being applied only for the purpose of obtaining the insurance referred to by him in paragraph 19 of his most‑recently‑filed affidavit.

18. It is not a straightforward matter.  Each party makes allegations of profligate or inappropriate or extravagant spending on behalf of the other.  The husband says that since separation the wife has had access to some $80,000 of funds and has increased her credit card liability significantly.  It seems to me that some of the funds have been taken from credit cards, so there is likely to be some double counting in that respect.  There is evidence of the husband spending $20,000 on furniture, to which I have referred earlier.  I am confident that such furniture could have been purchased for significantly less, although perhaps not to the quality of that desired.

19. Counsel for the husband has drawn my attention to the uncontested fact that the wife proposes to take herself and the children to Disneyland.  That is based on the wife having deposed at paragraph 32 of her affidavit sworn less than a week ago, on 31 January, 2008 as follows:

    Whilst living with the husband in late 2007 he and I agreed that I take our children to Disneyland in April 2008 for [W’s] sixth birthday and that I use Frequent Flyer points earned on credit cards in my name to pay for the airfares.  The husband was to take his two children to a rodeo in Las Vegas.  Accordingly, in September 2007 I purchased the air tickets and paid a deposit for our accommodation.  My god‑daughter [M] (who is travelling with us), through her parents, paid for all our accommodation and meals.  Accordingly, I will not have any expenses with that travel plan.

    I am advised by counsel for the wife that she is not going to take the trip to Disneyland.

1. I am confident that there is a surfeit of claims and counter-claims between the parties.  However, what is required is a proper appraisal of the financial situation on an interim basis so the court can make orders which it is satisfied will do justice between the parties. 

2. For the above reasons, I make the orders in the matter of Brandella, and a further order, by consent, in the terms of the minute, which I mark exhibit "A", and direct that they remain on the court file.  The court will engross that minute.  It is noted that the three preceding orders which were sought by consent are to be read in addition to the orders for the sale of the former matrimonial home made on 26 September 2007. 

[DISCUSSION]

PARENTING ISSUES

1. The parties also seek a determination of some interim parenting issues.  The order made on 26 September, 2007 by Young J, by consent, provides that the children of the parties, being W, who was born in April 2002, and D, who was born in January 2004, are to live:-

   c)with the husband for two out of each three weekends from 12.20 pm on Friday to 9 am on Monday, and each Wednesday from 5 pm until Thursday morning at 9 am, and

   d)with the mother for the balance of each three week cycle.

1. The children have lived primarily with the mother since separation.  She lives in rented premises at R.  W started grade 1 at R School this year, and D goes to R Kindergarten four mornings a week.  The fee for both children’s education is presently $2177 per term, in total. 

2. The father lives with his two children from a previous relationship, R, who is 16 and J who is 9 or 10 years old.  The current regime of time spent with the husband was structured in terms of both of the boys being preschoolers last year.  The changeovers provided for within the orders were that changeovers are to take place at the R School where appropriate and, otherwise, at the Subway restaurant, R.  Somehow, and I am not sure how, the changeovers venue became outside the police station at R.  Both parties accept that any changeovers which practicably can take place at school should take place at school.  On holiday or weekend occasions, when school is deserted, changeover is to take place at a neutral venue, which is to remain the R Police Station. 

3. Today the wife's position is that there is an interim hearing in April (allocated by me to 21 April 2008) and that the current orders ought to remain on foot until then.  When the court considers the matter in April, the wife will contend that the father should have time with the children from the end of the school day each Friday to 5 pm each Sunday, but no midweek time. 

4. The position of the husband and the independent children's lawyer is contrary to that of the mother.  It is that the children should be with the father from after school on Wednesday to the commencement of school each Monday each fortnight.  It is then proposed that they spend time with the father in the off‑week and stay overnight with the father on Wednesday nights.  The father and the independent children's lawyer say that this arrangement can and should be implemented now.

5. There are two expert reports including those of psychiatrist Dr E and psychologist Mr P.  There are conflicting accounts from each of the parents about events relevant to decisions about the long-terms interests of the children.  The conflict in the parent’s perspectives, while understandable, mean that the court must make orders in the interim based on the more objective reports of the experts until the evidence can be tested at trial.

6. I have read the affidavit and attached report of Dr E, psychiatrist, filed 19 December, 2007.  He is a consultant psychiatrist well known to the court.  He makes an assessment of both the husband and the wife. He says that in his opinion the wife may be struggling more than she admits at the moment and does have certain mental health problems.  Of the two parents, he prefers the version given by the wife.  It is clear that, in relation to the husband, Dr E is relying on the husband's explanations of previous events, such as the poor mental health of the mother and of his other children. It may also be relevant that the husband says that he has had no previous psychiatric condition and that no‑one in his family has a mental illness.  These factual matters are in dispute.  They are matters upon which evidence can ultimately be adduced and the opinion of Dr E tested.

7. I have also considered the report of Mr P, a clinical psychologist, filed on 18 December, 2007.  He saw the parents and the four children concerned on 27 November 2007.  He made an assessment of the relationship between each of them and the children.  Mr P makes the following conclusions in his report:

   [The wife] and [the husband] give very different accounts of what transpired over the course of their relationship.  According to [the wife], she was subjected to both verbal and physical abuse, that this contributed to her depression and ultimately she made the decision to separate because of a combination of financial matters, domestic violence and [the husband] being involved in another relationship.  I do note however that both [the wife] and [the husband] agree that just prior to separation, there was discussion between them about the possibility of having another child.  According to [the husband], his decision that this was not the right time for them to bring another child into the family given the stresses with which they were struggling was what precipitated the final separation.

   The wish by [the wife] to have another child suggest that regardless of how now she reconstructs what transpired, that at that time, she was at least considering the possibility of remaining in the relationship, notwithstanding her concerns regarding the alleged violence, financial difficulties and his involvement in another relationship.  This may ultimately be an issue that needs to be thoroughly tested and explored.  I do note that according to [the husband], the way in which [the wife] now portrays their relationship is very different to his experience, that is, that there was not the violence and maltreatment as is alleged by her, and that her retrospective reconstruction is a significant distortion of the realities of what occurred.

   The description by [the husband] was that he was patient and attentive, that he is calm and not an aggressive personality, that he was not abusive either to [the wife] or the children, and that to the contrary, it was [the wife] who was particularly aggressive towards [J].

   It is the contradictions in this matter that deserve careful consideration.   Not only did [the husband] and [the wife] give very different accounts of what transpired over the course of their relationship, but their respective account of the relationship with the children is equally disparate.  [The wife] portrays herself as having been close to all of the children, having been supportive of [R] and [J], and having been concerned about the emotional fallout associated with their mother’s absence in their lives.  According to [the husband], [the wife] was particularly negative towards [J], that she was physically and emotionally abusive of him, and that she contributed significantly to [J’s] problems.  This is certainly the view suggested by [J], supported by [R], and described by [the father].  Both [J] and [R] denied categorically that their father was physically aggressive even though all family members seemed to agree that [the husband] did “occasionally smack [J] on the bottom”.  [J] himself conveyed no fear or apprehension of his father, but was critical and negative about [the wife].

   In the midst of the allegations and the counter allegations, the two younger children appear to be coping well.  There is no suggestion that [the wife] is not able to care for them and [the husband] himself described this as a very good relationship, that the children love their mother and that she takes good care of them.  According to [the husband], things became difficult in the relationship when [W] was born because this immediately created a distinction between [the wife’s] biological child and [R] and [J], and thereafter [J] in particular bore the brunt of her frustrations.

   My observation of the children in the company of their mother was unequivocally positive.  They interacted with her warmly, confidently and comfortably.  Similarly, however, the children also related very well with their father and older brothers, there was no semblance of anxiety or apprehension, and as far as I can ascertain, the time the younger children have spent with their father since separation has also progressed uneventfully.  It was of concern that [W] referred to [J] as a person who has “special needs”; this being the language of [the wife] and clearly [W] had no understanding about what this meant other than it was somehow attached to his older brother and conveyed a message of caution. When however seen in the company of his brothers [W] and [D] for that matter related warmly and comfortably, and played very easily with both.

   Inevitably, any recommendation now needs to be qualified insofar as further information that may subsequently emerge or a testing of the evidence.  In reality however, [the husband] is spending significant and substantial time with all four of this children, he sees them on a regular basis, and this appears to be progressing well.  He would like a shared care arrangement on the basis that he spends five days with the boys in one week and two days with the boys the following week, albeit that [the wife] strongly opposes this as he believes it is not in the best interests of the children, that [W] in particular would prefer only one night with his father and because of concerns regarding [J].  Ostensibly however there is no suggestion that the current arrangement is not working at least well enough, albeit that the obvious problem is that [the wife] does not have an equal share of weekend time.  The other consideration is that [D], by virtue of his age, may find significantly longer periods difficult, albeit that [W] appears to be coping quite well.

   On the basis that this matter will need to be reconsidered and that there will need to be a testing of the evidence and consideration of the allegations and counter allegations, my suggestion is that the arrangement change in the sense that provision needs to be made for the children to spend time with their mother each alternate weekend and consideration needs to be paid to at least the two younger children and what might be a better arrangement for them.  Accordingly, I suggest that the children spend time with their father each alternate weekend from a Wednesday evening until a Monday morning, and a night overnight in the alternate week.  This consolidates the contact, reduces fragmentation, minimizes the amount of movement across the two households, provides real and meaningful time for the children to spend with both parents, and provides a greater sense of continuity of care.  There should be a sharing of school holidays and significant dates.  This recommendation of course is premise on the assumption that [the husband] is able to care for the children, and either to be with them before and after school, or to be able to make the necessary arrangements for them to be cared for in his absence.  I very strongly recommend that this matter be reviewed, and that only tentative arrangements be implemented until there is at least testing of the evidence.

8. This is an interim parenting case. The court must apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422, a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006.

9. Before setting out the steps in an interim hearing, the Full Court in Goodes’ case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-

   “…..Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

10. The Full Court then noted (at paragraph 72) that:-

    “…..it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.” 

11. It continued:-

    “…..where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the acre arrangements for the child.” 

12. The Full Court then said (at paragraph 73):-

    “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

13. In this case the second of the primary considerations to which I have referred: the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence, are highlighted because the wife has filed a Notice of Child Abuse or Family Violence (Form 4).  The mother has said previously that J, who is nine years old, has punched the younger children, particularly W.  It is now alleged in the notice filed today that last Wednesday 27, January, that W stated to her that J put his hands down his pants and that he touches his penis.  The mother said that on 15 January, 2007 W said to her that he was afraid of being punched.  She alleges in the Form 4, that in December 2005 she entered a bathroom and found J with his mouth around W’s penis.  At that time W would have been three and a half years of age and J would have been seven years of age.  Her recollection is that both boys had erections. 

14. The need to protect children from harm is one of the primary considerations that the court must take into account, and must do in interim proceedings where the evidence has yet to be tested.  The need to assure protection can often outweigh any other relevant considerations.  In this case I am satisfied that any unacceptable risk to the young boys is met by the husband agreeing to an order that he will personally supervise both W and D during all periods that they live with him, save for in the event of unforeseen emergencies.  In any such emergencies he must advise the wife that he is leaving and otherwise leave the children in the care of a responsible adult and under no circumstances alone with J.

15. The regime which I propose to order also takes into account the additional considerations outlined in the Family Law Act, 1975 at s60CC(3). 

16. I take into consideration the views of the children.  In this case there is sufficient material in Mr P’s report for me to question the accuracy of some of the views expressed by each of the children, particularly W. I specifically refer to his statement when asked if he knew the purpose of the interview, where he said: ‘I want to stay with my daddy for only one or two days and with my mum for the rest of the time.”  This statement would appear to be most unusual to emanate from a child of his age, without some input from an adult.  In any event, these children are seven and four years of age and are simply too young to know or understand the long‑term implications of their views.  Therefore, their views are not matters to which I accord any significant weight. 

17. I do accord weight to the observation of Mr P of the children's interaction with the husband and with J, and do so favourably.

18. I take into account the disruption to the existing routine of the children.  The orders I make will be disruptive but I believe it is disruption that is worth having at this stage.  It will represent an opportunity for the young boys to spend extended time in the husband's household; that is, four consecutive nights rather than the current maximum of two.

19. I have regard to the capacity of the parties to parent the children.  The wife is doing the bulk of the parenting at the moment and has been assessed by experts to be exhibiting stress or lack of ability to cope.  The husband is untested to some extent.  My consideration does not favour the parental capacity of either parent.  At the same time it does not support a curtailment of the husband’s involvement to the extent sought by the wife. 

20. I take into account the extent to which the parties have discharged their responsibilities as parents.  I must say that I am concerned about aspects of the financial management of both parties. . The appearance of impetuous behaviour on behalf of both parties is of concern.  Neither has shown ability to forward‑plan. 

21. As I have already said, all of the evidence is not yet before me.  I do not suggest it is not in the affidavit material, but I was informed in the course of submissions that the wife has recently become pregnant.  She is apparently 12 weeks pregnant.  I asked counsel for the wife who the father was.  Counsel for the wife made the following submission:

    It is not a matter relevant in these proceedings.  It is a private, personal matter and can remain so until such time as it is demonstrated [to her] to be relevant.

    Counsel for the wife sought to modify that by saying that, if it were demonstrated to the court and I directed the wife to disclose the father, she would do so.  No‑one has made an application for the identity of the father to be disclosed.  It seems to me to be a matter worthy of the consideration in the context of the wife's responsibilities in relation to parenting the children of this marriage and the child to which she will give birth in eight or nine months. However, I do not make orders that require the wife to disclose the identity of the father of her unborn child.  That is a matter which remains in the hands of the mother. 

22. The husband sought, through his counsel, to press the application of himself and the independent children's lawyer that the wife be present with the children at all times that they are in her care.  That is a mirror order to the one I have imposed on the husband.  I have refused to do so.  I note that in the report of Mr P the husband is recorded as having referred to the mother as an appropriate parent.  These proceedings are not going to benefit the children if they are conducted on a tit for tat basis.  I am not persuaded that it is in the best interests of the children to make orders sought by the husband.

23. Moreover, the husband does not say that the wife leaves the children unsupervised.  The reason for the supervision arrangements in the father's household is the risk to the younger children posed by his child J, in the context of the risk of abuse alleged by the mother.  J is not present in the wife's house.  It is clear that the parties seek to control time that children spend with the other through the imposition of conditions such as substantial or complete attendance or supervision.  From what I have heard of the husband's case, there is not a factual basis for me to impose that restriction on the mother.

1. I am satisfied that the orders which I have pronounced in relation to the children, to operate between now and the hearing in April 2008, are in their best interests.

I certify that the preceding fifty two (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  21 April 2008