BRENT & BRENT
[2020] FamCA 496
•23 June 2020
FAMILY COURT OF AUSTRALIA
| BRENT & BRENT | [2020] FamCA 496 |
| FAMILY LAW – CHILDREN – interim orders – application by father for overnight time – where children live with the mother – orders for children to spend gradually increasing time including overnight time with the father – both parents retain equal shared parental responsibility. FAMILY LAW – PROPERTY – interim orders – order for sale of the former matrimonial home – order for payment of outgoings with respect to the former matrimonial home. |
| Family Law Act 1975 (Cth) s 61DA, 62B, 65DA |
| APPLICANT: | Mr Brent |
| RESPONDENT: | Ms Brent |
| FILE NUMBER: | MLC | 12743 | of | 2019 |
| DATE DELIVERED: | 23 June 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 9 June 2020 |
| ORDERS MADE: | 11 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson QC |
| SOLICITOR FOR THE APPLICANT: | Coote Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders Made 11 June 2020
THE COURT ORDERS, BY CONSENT, THAT:
Parenting
Until further order, the parties have equal shared parental responsibility for the children, X born … 2015 and Y born … 2018 (together, ‘the children’).
THE COURT ORDERS THAT:
Parenting
Until further order, the children live with the wife.
Order 4 of the interim orders made 11 February 2020 be discharged.
Until further order, the children spend time and communicate with the husband as follows:-
(a) commencing 11 June 2020:-
(i)each Sunday from 10.00am until 6.00pm;
(ii)each Tuesday from 10.00am until 6.00pm;
(iii)each Thursday from 9.00am until 6.00pm; and
(iv)otherwise as agreed in writing between the parties.
(b) commencing 13 July 2020:-
(i)each Monday from 10.00am until 6.00pm;
(ii)each Thursday from 9.00am until 6.00pm with the child X spending further time with the husband being overnight and from 6.00pm Thursday until 10.00am Friday; and
(iii)each Sunday from 10.00am until 6.00pm; and
(iv)otherwise as agreed in writing between the parties.
(c) commencing 10 August 2020 as follows:-
(i)each Tuesday from 10.00am until Wednesday 5.00pm;
(ii)each Sunday from 10.00am until 6.00pm; and
(iii)otherwise as agreed in writing between the parties.
(d) commencing 12 October 2020:-
(i)in week one:-
A. each Thursday from 10.00am until Friday 10.00am save for 27 November 2020 when such time spent with shall conclude at 2.00pm;
B. each Sunday from 10.00am until 6.00pm.
(ii)in week two, each Wednesday from 12 noon until 6.30pm Friday; and
(iii)otherwise as agreed in writing between the parties.
(e) in 2020 from 3.00pm on Christmas Day until 6.00pm on Boxing Day;
(f) on Y’s birthday in 2020, as agreed, and in default of agreement from 12 noon until 4.00pm;
(g) on the husband’s birthday in 2020 (…), in accordance with order 4(d)(ii);
(h) on Father’s Day 2020 from 10.00am until 5.00pm; and
(i) otherwise as agreed in writing between the parties.
Until further order, the children live with the wife on the following special days and any provision of time under these orders that is inconsistent with this paragraph be suspended during these periods:-
(a) from 12 noon on Christmas Eve 2020 until 3.00pm on Christmas Day 2020.
There is liberty to the husband to apply as to any holiday time in the December 2020/January 2021 period.
Until further order, changeover shall occur at B School or otherwise at the wife’s residence.
The parties are hereby restrained by themselves, their servants and/or agents from denigrating, criticising and/or otherwise demeaning the other party or any other member of that party's family in the sight and/or hearing and/or presence of the children.
The parties are hereby restrained by themselves, their servants and/or agents from denigrating, criticising and/or otherwise demeaning the other party to any media outlet or on any online platform.
Each party keep the other party informed at all other times of all professionals consulted in relation to the welfare, care, health and development of the children.
Each party keep the other advised of their respective residential address and mobile telephone number and notify the other in writing of any change to same within 48 hours.
THE COURT ORDERS, BY CONSENT, THAT:
Property
Within 21 days hereof, the parties do all such things and sign all documents as may be required to list the former matrimonial home situate at and known as C Street Suburb D in the State of Victoria (‘the C Street property’) for sale (‘the sale’) with a real estate agent as agreed between the parties in writing and within 14 days hereof, or failing such agreement, with F Real Estate (‘the selling agent’).
With respect to the sale:-
(a) the reserve sale price of the C Street property shall be $3,900,000 or such other sum as mutually agreed upon in writing by the parties;
(b) the parties are to follow all reasonable recommendations of the selling agent including any recommended repairs and/or improvements and/or styling with the costs of same to be borne equally between the parties;
(c) the wife facilitate access to the C Street property to the selling agent and for the purposes of all inspection times, private inspections, auctions and any and all other attendances at the C Street property including for photography of the C Street property by the selling agent or anyone appointed by the selling agent, for advertising or for other purposes as recommended by the selling agent;
(d) the wife do all things necessary to ensure the C Street property is kept in a clean and presentable state in the lead up to and including the sale of the C Street property; and
(e) the settlement date for any contract of sale be 90 days after the date of sale or such other date as the parties may agree in writing.
The parties do all acts and things to co-operate with the selling agent including the signing of all documents forthwith requested by the selling agent in relation to the listing of the C Street property for sale.
Each party shall have the right to bid at auction and/or make an offer for the purchase of the C Street property.
Within 14 days of the date of these orders the husband remove from the C Street property, through the agency of a professional removalist of his choice, the following chattels and items:-
(a) his gym equipment;
(b) his personal possessions;
(c) his memorabilia;
(d) any agreed furniture, with the wife to provide to the husband within 7 days of the date of these orders, a list of furniture that the husband can remove from the C Street property and retain in his possession; and
(e) the gardening tools of the parties save for the hedger and mower which shall remain at the C Street property until further order.
Save for the chattels and other items as described in paragraph 16 above, the wife shall not dispose of any chattels or other items of the parties on and in the C Street property without first offering, in writing, the ownership and/or possession of such chattels and/or items to the husband.
Upon settlement of the sale of the C Street property, the proceeds of sale be paid in the following manner and priority:-
(a) first, in payment of all costs, commissions, expenses and fees in relation to the sale;
(b) second, in discharge of the mortgage encumbering the property in favour of the Commonwealth Bank of Australia;
(c) the balance then remaining be held in trust for both parties by the Applicant husband’s solicitors in an interest-bearing account pending the final resolution of this matter or Court order.
THE COURT ORDERS THAT:
Property
Pending the settlement of the sale of the C Street property:-
(a) paragraph 6(b) and 6(c) of the interim orders made on 11 February 2020 remain in full force and effect; and
(b) neither party shall further encumber the C Street property without the consent in writing of the other.
There is liberty to apply on short notice.
Otherwise all extant applications are adjourned for case management hearing on 7 December 2020 at 10.00am.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) 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 are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brent & Brent has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12743 of 2019
| Mr Brent |
Applicant
And
| Ms Brent |
Respondent
REASONS FOR JUDGMENT
Preliminary
This proceeding commenced upon the Applicant husband (‘the husband’) filing, on 12 November 2019, an Initiating Application wherein he sought both final and interim parenting orders. Relevantly, he sought interim orders that:-
a)the parties have equal shared parental responsibility for the children X born in 2015 and Y born in 2018 (‘the children’);
b)the children live with him and that the children spend time with their mother on a weekly and daily basis; on a weekend overnight basis; on special occasion days; and otherwise as agreed between the parties; and
c)the parties attend upon a family consultant for the purposes of the preparation of a family report with the costs of the report to be met at first instance by the husband.
On 17 December 2019, the Respondent wife (‘the wife’) filed a Response to the final and interim orders as sought by the husband. The wife joined the husband in seeking that the parties have equal shared parental responsibility for the children. The wife sought otherwise that the children live with her and that she be relieved from any obligation to further specify final parenting arrangements pending the release of a family report in the proceeding. The wife also sought final orders as to the property of the parties and/or either of them.
In the interim orders as sought by the wife in her Response filed 17 December 2019, the wife sought orders that the children live with her and spend time with the husband, in essence, on a daily basis on three occasions each week and otherwise on special occasion days. The wife sought also that the parties do all things and sign all documents necessary to facilitate the child X’s attendance on Dr G of the F Centre and that the husband be restrained from causing or permitting the children to be in the presence of Ms H until such time as the parties otherwise agreed in writing.
On 18 December 2019, the proceeding was listed before Registrar Mestrovic who made orders by consent on that day. The parties agreed that they should have until further order equal shared parental responsibility of the children such that the presumption as set out in s 61DA of the Family Law Act 1975 (Cth) (‘the Act’) not be rebutted. The parties also agreed until further order that the children live with the wife. The children were to spend time and communicate with the husband as set out in, and on the conditions as set out in, orders 3, 5, 6 and 7 of the agreed orders of 18 December 2019. Those orders were, relevantly, as set out below:-
3. That until further order, the children spend time with the Husband as follows:
3.1 Monday from 2pm to 6pm;
3.2 Thursday from 2pm to 6pm; and
3.3 Saturday or Sunday from 1pm to 6pm.
…
5. That until further order, the children spend time with the Husband on special days as follows:
5.1 From 2pm to 6pm on Father's Day;
5.2 From 2pm to 6pm on the Husband's birthday,
5.3 From 10am until 5pm on Christmas Eve in 2019;
5.4 From 2pm to 6pm on Boxing Day in 2019,
and that any provision of time under these orders that is inconsistent with this paragraph be suspended during these periods.
6. That until further order, the Husband be in fulltime attendance when the children are in the Husband's care.
7. That until further order, the Husband be and is hereby restrained from causing or permitting the children to be in the presence of [Ms H] until such time as the parties may otherwise agree in writing:
(a) That until further order:
(i) The parties do all things and sign all documents to facilitate [X's] attendance on [Dr G] of the [F Centre] on dates and at times directed by her
(ii) The parties attend upon [Ms J] for the preparation of a family report (15/1/2020) the cost of same to be shared equally at first instance with the issue of whether the husband should meet the entire cost to be determined upon the husband filing a Financial Statement and providing disclosure.
The proceeding was adjourned to the Judicial Duty List on 11 February 2020.
On 11 February 2020, the Court made various orders, both by consent and by the Court. For the purposes of these reasons, which relate only to the orders made on 11 June 2020, the orders of 11 February 2020 provided (by consent) a continuation of the interim order for equal shared parental responsibility of the children and for the continuance of orders 3, 5, 6 and 7 of the orders made 18 December 2019 until 26 February 2020, at which point such orders were to be discharged.
By consent of the parties, order 4 of the orders made 11 February 2020 provided that:-
Until further order, from 26 February 2020 the children spend time and communicate with the father as follows:-
(a)each Tuesday from 10.00am until 6.00pm commencing on 3 March 2020;
(b)each Thursday from 10.30am until 6.00pm commencing on 27 February 2020;
(c)each Sunday from 10.00am until 5.00pm; and
(d)such other times as agreed between the parties in writing.
By consent of the parties, order 5 of the orders made 11 February 2020 provided that:-
The parties jointly request that the introduction of the children to the husband’s partner, [Ms H], be facilitated by [Dr G] and in this regard:-
(a)Dr G be provided with a copy of the family report of [Ms J] dated 28 January 2020; and
(b)The parties follow all reasonable recommendations of [Dr G] with respect to the introduction of the children to [Ms H].
An order made by the Court on 11 February 2020, which was not an order by consent of the parties, and which was an order which went to the property orders as then sought, was order 6 which provided that:-
Until further order, the husband continue to pay or cause to be paid the following expenses as they fall due:-
(a)repayments in respect of the loan secured by way of mortgage encumbering the former matrimonial home;
(b)rates (council and water), taxes, home and contents insurance, gas, electricity, telephone and Foxtel in respect of the former matrimonial home;
(c)the wife’s motor vehicle insurance costs.
In the period between 11 February 2020 and 9 June 2020, when the matter was next listed for an interim hearing, the COVID-19 pandemic impacted, amongst other things, the parties’ financial position. The husband unilaterally approached the parties’ bank which had security by way of mortgage encumbering the property of the parties known as and situate at C Street Suburb D in the State of Victoria (‘the former matrimonial home’). The husband’s approach was for the purpose of obtaining a moratorium with respect to ongoing monthly mortgage payments. The husband’s request was granted and as a consequence he has not made any repayments in respect of the mortgage encumbering the former matrimonial home since prior to 11 May 2020. The moratorium will remain in place for six months. That has left the husband to pay only those expenses as set out in order 6(b) and (c) in paragraph nine above. The husband nevertheless continues to claim that he cannot afford to meet such payments. Rather, he seeks such expenses to be borne by the wife who is in occupation of the former matrimonial home together with the children.
Prior to the interim hearing of 9 June 2020, the husband filed, on 4 June 2020, an Amended Application in a Case, together with affidavits of evidence affirmed by him on 4 June 2020 and 8 June 2020 upon which he relied. The husband also relied upon a Financial Statement affirmed by him on 4 June 2020.
The wife filed an Amended Response to an Application in a Case on 4 June 2020, and in support of the orders as sought by her she relied upon affidavits of evidence sworn by her on 4 June 2020 and 6 June 2020.
The parties also, in both senior counsel and counsel’s submissions, referred to the evidence as contained in the expert report of Ms J dated 28 January 2020 and annexed and marked as exhibit ‘MsJ2’ to her affidavit sworn 6 February 2020. Ms J is a registered psychologist. The contents of that report are challenged by the husband, but the necessary cross-examination as to those matters which are to be challenged has not yet been able to occur. Ms J’s expert opinion was the only one before the Court on the hearing of this matter. Whilst the parties and their children have attended upon Dr G of the F Centre, those attendances have been for therapeutic counselling, and no report (to date) has been prepared by Dr G.
The substantial issues before the Court, by way of a telephone interim hearing on 9 June 2019, and being a hearing constrained to that extent, were the issues of parenting orders and what time the children would spend with their father. The parties differed significantly in that respect. Those differences included the speed with which overnight and more extended periods of time spent with would occur; and whether the children would spend time with the husband together, or whether a differing regime would be applicable to each of X and Y on the basis that X is four years and seven months of age and Y is one year and eight months of age. Y was approximately nine months of age when the parties separated. His primary attachment figure is the wife.
The husband proposed orders whereby the children would be together when they spent time with him, which would include overnight time. The wife proposed orders whereby the children would be separated, such that X could commence spending overnight time with the husband from 1 August 2020 and where, until at least December 2020, the child Y would spend no overnight time with the husband.
Background
The husband was born in 1983 and is now aged 36 years. Prior to the impact of COVID-19 he was earning approximately $170,000 gross per annum, as set out in his own case summary document prepared for the 11 February 2020 interim hearing. He lives in a rental property in Suburb K with his partner Ms H.
The wife was born in 1985 and is now 35 years of age. She is a business owner who was earning prior to any impact of COVID-19 approximately $108,000 gross per annum. She resides with the children in the former matrimonial home. She and the children also spend considerable time, including overnight time, in the home of the maternal grandparents.
The parties commenced their cohabitation in 2010. They married in 2014 and separated in July 2019, being almost 12 months ago.
Consideration of Children’s Matters
Each of the parties seek both interim and final orders for equal shared parental responsibility. These reasons go to, in particular, the interim parenting arrangements for the children in the months ahead.
As part of his interim application the husband sought an order that both he and the wife do all acts and things and sign all necessary documents to attend upon P Service by no later than 16 June 2020 for a hair follicle test for the use of illicit substances. Each party was to meet the cost of their own hair follicle test with the results to be provided to the solicitor for the other party. There was no evidence by either party to support such an order in respect of the husband.
The wife opposed the making of such an order denying any assertion by the husband that she is, or may be, taking drugs.[1] The wife’s evidence noted that the husband had raised her alleged drug use as a concern in his affidavit affirmed 7 February 2020, yet consented to orders providing that the children reside with the wife. The wife asserted, as to the order as sought by the husband “I have been consistent in this denial and am offended by it.”[2]
[1] Affidavit of Ms Brent sworn 6 June 2020, [10].
[2] Ibid.
The Court declined to make the order as sought as there was before the Court no proper evidentiary basis for the making of such an order. The husband did not particularise in any meaningful way any factual matters upon which he relied to support the making of such an order at the present time. If the husband has evidence he needs to put his case. Otherwise, the allegation does nothing more than heighten the acrimony that already exists between the parties, being acrimony which does not promote the best interests of their children.
The wife formulated her proposals for the time the children should spend with the husband on the basis of her consideration of Ms J’s report and in line with recommendations of Dr G as claimed by the wife. The Court is mindful, however, there is no evidence from Dr G before the Court.
Report of Ms J
In her observation of the husband with the children, Ms J noted the following:-
20. [X] easily separated from his mother and was very excited to see his father, running up to him and hugging him, and the child remained excited for some time. [Y] was less directed and he was unwilling to be separated from his mother. It required [Ms Brent] to take him in her arms and bring him to the interview room where the father waited. [Y] did not immediately acknowledge his father and took a little time to emotionally separate from his mother, looking at the door from where his mother had left and trying a door handle. He then responded to [X’s] excitement, interacting firstly with him and then followed his brother to happily greet his father. In the first short observation period, [Y] tried to leave the room on two occasions to go to his mother. When the children were informed that they would be going with their father for an hour or so and upon leaving the interview room, [X] returned to the waiting room to touch base with his mother. [Mr Brent] happily engaged with the children and interacted with each of them individually and together and ensured that they both received attention. There was no awkwardness and the children in turn easily interacted with him. The father and children left the rooms to go to the café and nearby park, returning around 1 hour and 15 minutes later.
21. On return, both children wanted to see their mother and went to the waiting room, especially [X], where he assumed she would be.
22. At the second observation session, the children had toys and they played with their father. [X] played independently for most of the time, while [Y] took up much of his father’s attention. After some period, [Mr Brent] sat on the floor to play with [X] but the child still tended to play on his own. The father’s involvement was relatively minimal. [X] played well on his own and was absorbed in the play for much of the time. He was reluctant to answer questions posed by me, but easily answered the same questions when put to him by his father. The child’s shyness and awkwardness with strangers was evident, although when feeling safe and assured by his mother, he was able to separate from her to go with me to another room.
23. Although [Y was happy to be with his father, he again occasionally wanted to leave the room to return to his mother.
24. [Mr Brent’s] capacity to manage the two boys was well developed and he was observant and alert to their safety. [Y] was at times unsteady on his feet and on at least one occasion, nearly fell down. [X] related easily to his father, but there was a degree of independence and less interaction with his father than would be expected.[3]
[3] Report of Ms J dated 28 January 2020, [20]-[24].
In her observation of the wife with the children, Ms J noted that both X and Y interacted primarily with the wife or their maternal grandmother, and that Y:-
…initially would not separate from his mother to go to his father and could not be coaxed to go with me and his brother. He needed encouragement by his mother and it necessitated her having to take him in her arms, while continuing to persuade him to go to the interview room where his father waited…[4]
[4] Ibid, [40].
Ms J noted that X had difficulty transitioning between his parents and that the conflict between them at that time may have been a contributing factor. That conflict included X’s reporting of his “new mum” to the wife.[5]
[5] Ibid, [43].
In January 2020, the wife was of the view, as expressed to Ms J, that Y was:-
…far too young to spend overnight time and she clearly wants the two children to remain together. She acknowledged that the period of time needs to progress in the future and the children will need to spend overnight time with their father when they are older. I suggested and she agreed that the children could begin to spend overnight time when [Y] reaches around 2 years of age. In the meantime, the children’s time can be increased in the near future…[6]
[6] Report of Ms J dated 28 January 2020, [39].
Ms J concluded at that stage, in January 2020, that the husband’s desire that the children live with him, was “unrealistic.”[7] She recommended the children remain living with the wife and spend time during the day with the husband. It was her opinion that to maximise the children’s feelings of security, they should remain together when spending time with the husband as “this too will assist the younger child to better adjust to being away from his primary carer and for commencing overnight time.”[8] It was Ms J’s view that it was premature to increase spending time arrangements to any significant degree until X was better settled and more easily able to transition between the households.
[7] Ibid, [52].
[8] Ibid,[45].
Ms J noted in paragraph 44 of her report:-
There is no doubt that both children are primarily attached to their mother. [X] is only 4 years old and is securely attached to his mother. His attachment is continuing to develop in an optimal manner and was demonstrated by his ability to separate from her but periodically needing to assure himself of her presence. [Y’]s infant attachment is forming into the clear “cut attachment phase” and his need for his mother was more acute and readily evident. Secure attachments are developed as a function of responsive, consistent and sensitive care, in accordance with the child’s needs, at the time and in the circumstances required by the child. [Y] is yet too young to be away from his primary carer for too long a period, and he is too young to commence overnight time. He appears to be developing at a normal, healthy rate, and should there be no untoward events in the future, it is likely that he could commence overnight time when he reaches the next developmental phase, the preoperational stage of development, at approximately two years of age when the child is better able to understand language, separation anxiety decreases and he can develop bonds with others from the stability of the base of the attachment parent.
The wife openly acknowledged to Ms J that the children loved their father and were excited to see him, and that he loved them too. She however “contradicted many of [the husband’s] assertions about the extent of his involvement in the care of the children.”[9] She acknowledged that her parents (the maternal grandparents) had been part of the children’s lives since birth, and that they had provided a great deal of care and support to her and, in particular, have done so since the separation.
[9] Report of Ms J dated 28 January 2020, [34].
It is clear in Ms J’s report that when she saw the parties on 15 January 2020, the husband was seeking for the children to live with him and spend six nights each fortnight with the wife. It was, as said by Ms J, “unrealistic” and showed some considerable lack of insight. The children were very young, especially Y, at the time of the parties’ separation which was in July 2019. They remained living with the wife at the former matrimonial home. The husband, at some time thereafter, commenced to reside with his new partner, Ms H. Acrimony between them was a feature of the parties’ relationship.
In January 2020, the wife was opposed to overnight time between the children and the husband, given the children’s ages, and in particular Y’s young age and attachment needs. She desired for the children to see the husband together, as recommended by Ms J and as sought by the husband. The issue was finding the balance as to when overnight time should occur given the children’s differing ages and differing attachment needs as a consequence. There remained significant disparity in the parties’ accounts to Ms J regarding the extent of the husband’s involvement in the care of the children during the marriage. The husband claimed that he shared a great deal of the responsibilities for the care of the children, whilst the wife acknowledged the husband’s care when it was given, but disagreed about the extent of his involvement because of his work commitments and interstate travel. The husband claimed that although the wife was self-employed, and her work hours flexible, she was a “very social person” and often out in the evenings. His view was that the maternal grandparents took on a significant caring role at those times, including overnight periods.
Whilst the husband initially claimed to Ms J to have cared for the children for eight nights whilst the wife travelled to the United States prior to separation.[10] The wife denied that allegation, claiming that the children were cared for predominantly by her parents during that time.[11] The wife’s evidence was “the husband and his mother cared for the children together for one night and the husband stayed with the children at [the maternal grandparents’] house for another night.”[12] Otherwise, the husband travelled to Sydney for the balance of the time that the wife was away, leaving the children in the care of the maternal grandparents. The husband made some concession in this regard.
[10] Affidavit of Mr Brent affirmed 9 November 2019, [33].
[11] Affidavit of Ms Brent sworn 6 June 2020, [16].
[12] Ibid.
Both children have been cared for by persons not being their mother and father over the course of their lives. Those persons have included, significantly, the maternal grandparents and, to a far lesser extent, a nanny engaged by the parties. Whilst the wife continues to engage a nanny each Friday, whom occasionally assists on a Wednesday with the children, the wife is, on her evidence mostly, if not entirely, present during those periods.
Some five months has passed since the observations of the children and the parties by Ms J and the expression of her recommendations. In that time, the parties have acted to ensure that the children have had consistent and frequent time spent with the husband. The children enjoy their time with their father and both have now transitioned between their parents households on many occasions, settling into that routine.
The children are not unfamiliar with being cared for by very limited others. That has included periods of overnight time with the maternal grandparents. X is of an age where ordinarily, and on the facts of this case, he would be spending overnight time with the husband and that would have commenced some time ago. Y is approaching that age. It is in X’s best interests that he be able to promote his relationship with the husband, which is supported by the wife, through the introduction of an overnight period of time in the near future. A further five week period can elapse before Y joins him. At that time, Y will be close to the age suggested by Ms J; further established in his primary attachment to his mother; and ready to join his brother.
The wife claimed that Dr G had recommended to her that any increase in time between the children and the husband “needs to be gradual, and undertaken with therapeutic oversight.”[13] The Court considers that leaving in place daily time spent with between the children and the husband for the next month until 13 July 2020 will enable therapeutic oversight of the then ordered move to overnight periods, ultimately for both children.
[13] Affidavit of Ms Brent sworn 6 June 2020, [3(b)]
In April this year, the husband and Ms H moved into a rental property in Suburb K. The husband has set up a bedroom for each of the children where they can be comfortably accommodated. The children are familiar with the husband’s home and, on the husband’s evidence, very settled in his care. The boys do share a close relationship which is a matter agreed to by all in this proceeding. It is not in their best interests that in the longer term they be separated and it is both reassuring and more enjoyable for each of them to have the other present when spending time with the husband.
Consideration of Financial Matters
On 16 April 2020, the husband received an email from his employer, L Company, to advise him that his income would be reduced to $1,000 gross per week for the months of April, May and June due to the impact of the COVID-19 pandemic. That correspondence said, relevantly:-
Hello [Mr Brent],
Confirming that we have suspended your agreement with [L Company], meaning you will receive no payment for the months of April, May & June – this due to Covid 19
The only payment you will receive are for your work on the [N project], which is $1000.00 per project throughout those three months…
By his Financial Statement affirmed 4 June 2020, the husband accordingly described his total average weekly income as $1,000 per week.
The husband’s evidence at the interim hearing was that he had not received further advice from L Company as to when his contracted salary would be reinstated. Further, given the significant changes to the work schedule, he did not expect it to be reinstated this year. There was no evidence to support that expectation. No doubt the husband will disclose, in his ongoing disclosure, when it is that his contracted salary or some other salary will be reinstated.
The husband’s partner, Ms H, is in receipt of an average weekly income of $1,300.
The rates currently paid by the husband in respect of the former matrimonial home are $150 per week. The husband’s weekly payment of home and contents insurance for the former matrimonial home is $114. His weekly payment for the wife’s motor vehicle insurance is in the sum of $42 per week. The wife’s other weekly expenses for which the husband was liable (see paragraph nine herein) were in the sum of approximately $287.50 (gas, electricity, phone and Foxtel).
As at 4 June 2020, the husband, in his Financial Statement, deposed to having $19,366 in a Westpac account ending #…31 in his name and $4,250 in a Westpac account ending #…39 in his name. He had a Commonwealth Everyday Offset account ending #…21 in his name with approximately $11,000 in it. His credit card was in the sum of $2,000DR. The husband deposed to having a tax liability for this financial year (which is not yet assessed) in the sum of $166,500. There is no assessment in place in relation to child support, but the husband is paying the monthly costs as ordered for the benefit of the wife and children, and for X’s attendance at B School early learning centre and swimming lesson fees.
As set out in paragraph 26 of the wife’s affidavit sworn 4 June 2020, the husband only recently disclosed to the wife the contents of a bank account which he asserts that he had “forgotten”. The bank account contained funds of approximately $135,119 which was only disclosed by the husband for the first time on 17 April 2020. Those funds were held by the husband in an account with the National Australia Bank which he had not disclosed to the wife prior thereto. The husband, without consulting with the wife, transferred the whole of the balance of the account to the Australian Taxation Office to discharge his tax liability for the year ending 30 June 2019 of $131,482.35.[14]
[14] Affidavit of Mr Brent affirmed 4 June 2020, [28].
In her Financial Statement sworn 17 December 2019, the wife deposed to receipt of a total average weekly gross income of $2,068 each week, derived from a business known as M Proprietary Limited. Her average weekly income tax was $527; she had National Australia Bank accounts in the sum of $156 and $466.04. [15] She was expending $600 each week in childminding, $250 each week in cleaning (house/pool), $50 in repairs and $600 each week in clothing and shoes for herself and the children. The wife had an outstanding taxation debt of $17,582.40 which is due and payable by 26 June 2020.[16] She had borrowed monies in large sum from her father to meet her legal fees and other necessary expenses.
[15] Affidavit of Ms Brent sworn 6 June 2020, [15(b)(ii)].
[16] Ibid, [15(b)(v)].
The husband no longer pays for the wife’s private health insurance, and she has no private health cover.
On the evidence, the husband is better placed to continue meeting the earlier ordered payments and in particular given the cessation of the mortgage payments, on an interim basis. The Court made orders accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 23 June 2020.
Associate:
Date: 23 June 2020
Key Legal Topics
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Family Law
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Property Law
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