CARLSON & CARLSON

[2015] FamCA 708

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON [2015] FamCA 708

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Parental Responsibility – Children to live with the mother – Children to spend time with the father each alternate weekend – Father otherwise restrained from approaching the mother or the children – Mother to have sole parental responsibility, except for education, in which the parties are to have shared parental responsibility

FAMILY LAW – PROPERTY SETTLEMENT – Husband cause to be paid to the wife the sum of $25,000, such sum to be characterised on the making of final orders – Certain restraints placed on the husband – Wife’s application for spousal maintenance dismissed – Husband to meet the mortgage and rate payments on the former matrimonial home, where the mother and children will again reside

FAMILY LAW – PRACTICE & PROCEDURE – Review of a Registrar’s Decision – Application dismissed

Family Law Act 1975 (Cth), ss 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Carlson

RESPONDENT: Ms Carlson

FILE NUMBER: NCC 1538 of 2015

DATE DELIVERED: 12 August 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 10 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Mark Graham Solicitor

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Rankin Ellison Lawyers

Orders

Parenting Orders

1. That the children B born … 2002 (“B”) and C born … 2004 (“C”) (together known as “the children”) live with the mother.

2. That the parties have equal shared parental responsibility for the education of the children, and for all other long term decisions the mother shall have sole parental responsibility for the children.

3. The parties shall forthwith do all acts and things to ensure the immediate return of the children to their respective schools namely D School, Suburb E and F School, Suburb G and thereafter each is restrained from changing the enrolment of the children or either of them (other than for progression to High School by C) without the prior written consent of the other or Order of the court.

4. That the children spend time with the father each alternate weekend from Friday after school until Sunday 5.00 pm with the father to collect the children from school at the commencement of the period and cause a family member or known family friend to return the children to the home of the mother at the conclusion of the period time to commence on the second weekend after the mother and children have re-occupied the home pursuant to Order 5.

5. Within 14 days the husband must vacate the property situate at and known as H Street, Suburb G, and thereafter the wife have exclusive occupancy of the property with the children.

6. Mr Carlson is restrained by injunction from approaching Ms Carlson or the children B born … 2002 and C born … 2004 except in accordance with these Orders and is restrained from attending the property at H Street, Suburb G.

7. The husband is restrained by injunction from removing from the property at

   
   

   H Street, Suburb G, any chattels, furniture, artwork, appliances, linen or other items of property except his own clothes and personal effects.

8. The husband must do all acts in his capacity as director of I Pty Ltd to cause the company to:

   8.1Permit the wife the use of the 4WD motor vehicle in the possession of the wife;

   8.2Ensure that the vehicle is kept registered and insured and all registration fees, insurance premiums and other amounts necessary to comply with this Order are paid as and when they fall due;

   8.3Permit the wife to use the fuel card in the wife’s possession and that the accounts attached to that card are paid as and when they fall due;

   8.4OR in the alternative to Order 8.1 the husband shall make available to the wife for her exclusive use a motor vehicle of the same or similar make, year and value as the 4WD motor vehicle prior to the company requiring the return of the 4WD motor vehicle if that step is to be taken by I Pty Ltd.

9. The husband is restrained from transferring, encumbering, or otherwise dealing with his interest in the property situate at and known as H Street, Suburb G, being the whole of the land contained in Certificate of Title, folio identifier ...

10. The husband must pay:

    10.1To the Australia and New Zealand Banking Group Limited all periodic payments necessary to service the loans secured by mortgage over the property at H Street, Suburb G, being registered dealings numbered … and …;

    10.2To J Town Council in payment of rates levied on the property as and when same fall due;

    10.3To K Corp in payment of rates levied as and when same fall due.

11. Each of the parties do all acts and things and sign all documents and the husband cause I Group or I Services to do all acts and things and sign all documents necessary to give effect to these Orders.

12. If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the defaulting party and that:

    12.1The Registrar do all necessary acts and things to give force and effect to these Orders;

    12.2The defaulting party pay the costs of the other party on a solicitor/own client basis.

Interim property payment

1. Within 14 days of the date of these Orders the husband cause to be paid to the solicitors for the wife the sum of $25,000.00.  Such payment to be characterised on the making of final Orders by way of court determination or agreement of the parties.

Restraints

1. 14.1    That the husband shall give to the wife notice in writing of any intention he forms to take one or more of the following steps:

   14.1.1Altering or in any way causing to be altered the current shareholdings and directorships of I Group Pty Limited (ACN …) (“I Group”) and I Services Pty Limited (ACN …) (“I Services”);

   14.1.2Selling, transferring, mortgaging, encumbering, disposing of or in any way dealing with the shareholdings, loan accounts and other interests of the parties or either of them in I Group and/or I Services, whether held beneficially or on trust;

   14.1.3Resigning or permitting his removal as a director of I Group and/or I Services or either of them;

   14.1.4Appointing or causing to be appointed any other person as a director or officeholder of I Group and/or I Services;

   14.1.5Amending or in any way altering the Memorandum and Articles of Association of the I Group and/or I Services and from issuing any further shares or altering the rights attaching to any shares in those companies or either of them;

   14.1.6Disposing of, transferring, converting, charging, encumbering or otherwise dealing with the assets of either I Group or I Services except in the ordinary course of business and with 7 days written notice of the wife;

   14.1.7Taking any steps to appoint or remove any trustee of any trust in respect of which he exercises a power of appointment;

   14.1.8Causing either I Group or I Services to appoint or remove any trustee of any trust with respect to which either of those entities exercises a power of appointment;

   14.1.9Taking any steps to alter in any way the Deed establishing any trust of which he is a Trustee;

   14.1.10Causing I Group or I Services to alter in any way the Deed establishing any trust of which either I Group or I Services are trustees;

   14.1.11Taking any steps to divest himself of any powers as appointor or guardian of any trust in which he has been appointed as such;

   14.1.12Taking any steps as to alter a trust in which either he, I Group or I Services has power to so effect such an alteration;

   14.1.13Taking any steps to increase the remuneration or expenses paid by I Group or I Services to himself or for his benefit;

   14.1.14Taking any steps to increase the remuneration or expenses paid by I Group, I Services or himself, either in his own right or as a trustee, to third parties whether employed or contracted to any entity over which he exercises control.

   14.2The husband is restrained by injunction for a period of 42 days following the giving of that written notice from taking any such step without the prior written consent of the wife or Order of the court.

Spouse Maintenance

1. The Application of the wife for spouse maintenance is dismissed.

2. The Application in a Case filed 19 June 2015 for review of decision of a Registrar is dismissed.

3. This matter is listed before a Registrar of this Court at 11.30 am on Friday 21 September 2015 for a Case Assessment Conference.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Carlson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 1538 of 2015

Mr Carlson

Applicant

And

Ms Carlson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. The parties, aged in their early 40’s, are the parents of the two children, boys B and C, aged 13 and 11 respectively. 

2. They met in 2000 and married the following year. They separated after an incident on 19 December 2014 but remained living under the one roof, with separate bedrooms, but cooperative parenting.

3. In mid-June 2015, physical separation was effected by the wife leaving with the children and travelling to stay with members of her family in Victoria.

4. Final applications have been made by each party.

Evidence

1. The documents relied on in these proceedings are:

   a)Interim Orders sought in the Amended Initiating Application filed by the husband/father (hereafter known as the father) on 10 July 2015;

   b)Interim Orders sought in the Response filed by the wife/mother (hereafter known as the mother) on 6 July 2015.

Short History of Relevant Events

1. The orders sought by the father were that the parties share parental responsibility, that the children live with him, that they be delivered back to him within 48 hours and that the mother spend substantial and significant time with them.

2. The orders sought by the mother were somewhat more wide-ranging and included property orders by way of interim property payment, some spousal maintenance orders, orders restraining the conduct of a company directed by the father and some other matters. 

3. The matter came before a Registrar and was transferred to a judge of this Court on 30 July 2015, from where a date was allocated before me on

   
   

   10 August 2015.

4. The matter proceeded on affidavits and submissions.  Affidavits were numerous on both sides but other than in the case of each of the parties, were brief evidence by friends and family of each of the parties.

Parenting Issues

1. There is a pathway through Part VII of the Family Law Act 1975 (Cth) established by the decision in Goode & Goode (2006) FLC 93-286.

2. These are competing applications for parenting orders and the making of a parenting order triggers the application of a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility.

3. That presumption must apply unless there are reasonable grounds to believe that a parent or relevant other has engaged in abuse of a child or family violence. There is also provision for the presumption not to apply to interim orders if a court considers it would be inappropriate for that to happen

   
   

   (s 61DA).  This is such a case. 

4. The parties separated in circumstances where a threat was made by the father to burn down the salon flat which the mother uses for her paid work as a beautician.  This came in the context of a conceded angry dispute over money, although the mother does not consider that the threat was made in anger.   I infer from her evidence that she therefore attributed more weight to the possibility of the father acting on the threat.

5. The dispute came in the context of six months of separation under the one roof, with all the likely tension and difficulty associated with that situation.  My impression is that the mother was monitoring the situation closely and left with the children when simmering conflict flared.  She reported her intention to police. 

6. It is the mother’s statement that she did not have any fears for her safety or the safety of the children, which was one of her reasons for remaining in the family house in separated circumstances.[1]

   [1] Exhibit 1

7. The children have been adversely affected. It has to be said that they would also likely have been adversely affected by any further exposure to conflict between the parents.  They have missed school and lost contact with the father, restored to date only by phone calls. 

8. They had been personally present in December 2014 for the open conflict which triggered separation under one roof.  Both children told the Family Consultant something of their observations and feelings of that night.[2]  Such comments as “afraid”, “worried about their mother”, “fearful of being hurt themselves by their father, embarrassed in front of their friends and family”.

   [2] Child Inclusive Memorandum dated 15/07/2015

9. There is another factor. 

10. The father has on two occasions in the past been committed to trial (in 2008) and acquitted of serious sexual assaults on teenaged boys.

11. The mother was supportive of the father, giving evidence in one trial and apparently certain of his innocence in other matters where charges were withdrawn and dismissed.   The mother now entertains doubts about the father and has come to see him as a source of unacceptable risk of sexual abuse of the children.

12. The mother concedes that there has been no complaint or allegation of that type whatsoever by or in relation to either of the children.  However, she has lost trust and confidence in the father and asserts that she does now hold such fears.

13. The children have apparently been appropriately protected from knowledge of criminal charges and outcomes, since there is no reference by them or anyone on their behalf to them having any knowledge of those matters.

14. The children themselves, in conversation with the Family Consultant, have made the following comments. B said that prior to December 2014, “Mum and Dad have been nice to each other and did not argue”.  C said that his parents used to get on all right and he wondered how his life would be without a dad or a mum.

15. Both children expressed to the Family Consultant clear, strong views to live with the mother in future.  She has undoubtedly been their primary carer throughout their lives. At 13 and 11 years of age, such strong, clear, informed views could hardly be disregarded.

16. They also both expressed a wish to spend time with the father.  C, in a straightforward way, thought once every couple of weeks.  B, who was a little more upset and embarrassed than C by events of December 2014, wanted a few weeks to pass.  In that sense, they already have. 

17. It is appropriate for an Order to be made for the children to live with the mother.  In any event, communication which has been deteriorating for eight months has now fallen down entirely. 

18. The one area where the parents unite is the need for the children to continue at their present schools, which are faith-based schools with attendant school fees. 

19. Parental responsibility for that area can be shared, but in all other areas the necessary communication, consultation and compromise is unlikely to be possible in the present state of flux over where children should live, anger over their removal, dispute over financial matters, in addition to the impact of serious past allegations being raised as present concerns.

Time and Communication

1. Taking the conservative approach which is required at an interim level with untested evidence, there is still no proper basis for ordering two hours of supervised time in a contact centre as proposed by the mother, or supervised time at all.

2. The father was charged with offences and acquitted. That evidence cannot rise further in significance.  The evidence supports a finding that the father has displayed odd, irritating, disinhibited conduct with other adults. 

3. The father’s witness, Mr L, refers to an incident 15 years ago, where he says the father grabbed his testicles and that he told the mother of his own feelings of anger in that moment.  Mr L also ventured the opinion that his friend, the father, “might have done something stupid to be funny”. 

4. Ms M gave evidence that the father regularly pulls down his shorts, exposing his bottom to say goodbye. 

5. Mr N gave evidence that the father has exposed his genitals in adult company, and Ms O gave evidence that late in 2008, the father grabbed her in her genital area. 

6. All or some of those matters, other than the father’s witnesses, may be contested, but taking that evidence at its highest, it falls well short of possible future risk which would be unacceptable, of abuse by the father of the children. 

7. There is also a risk of emotional abuse of the children if they are closely supervised, particularly in a contact centre.

8. Children of 13 and 11 years of age would quickly realise that the adults in their lives regarded the father as a risk to them and this is a particularly vulnerable moment for them because of their lives having been considerably disrupted by recent events. 

Conclusion on Parenting Matters

1. Accordingly, it is most appropriate for the father to spend alternate weekends with the children from after school on Friday until Sunday evening. That will meet the children’s expressed wishes as well as their needs.

2. It is essential that the father stay away from the mother and the children, other than in accordance with the Orders given recent events, but it would be appropriate for them to be collected from their schools by the father and for a friend or family member or well-known friend to deliver them home to the mother on Sunday evening.

3. That time should not commence until the children and the mother have resettled in the home and I will come to that Order shortly, so that their own stability is established before time with the father begins.

4. For his own sake, the father could decide to include family members in weekends in order to ease the restoration of relationships and settle the children down, but that will be a matter for him. 

Interim Property Settlement

1. There is an application for an interim property payment.

2. The evidence of the father is that he has, without reference to the mother, recently sold a boat for $39,500 and a jet ski for $9,200.  This may well be an issue at final hearing, since it is asserted on behalf of the mother that the boat was purchased four years ago for $100,000 and that the purchaser of the equipment is not somebody who was an arm’s length buyer.

3. Dealing with the facts as they are now at this moment though, the items were sold without consultation and the best evidence the father gives is that $30,000 or more of it was used to repay debt to his parents. 

4. It is entirely appropriate that half that amount is paid to the mother and an order for $25,000 will be made to her.  Obviously, she too has had legal costs associated with this urgent litigation, but in any event, the matter can be categorised at final hearing.

5. The financial statement of the father indicates that he has been slowly repaying a debt incurred to his parents for the building of the home and he has the capacity to go on paying periodic debt in that way, if that is what it comes to, to make that interim payment.

Personal Restraining Orders

1. As previously stated, there is an Order restraining the husband from coming near the mother or the children other in accordance with the Orders.  Recent exposure to conflict has sensitised the children and the risk of further exposure to conflict has the capacity to do damage to their relationships with both parents, but especially the father, who at this time they are inclined to hold responsible for events in December 2014. 

1. There will also be an Order for exclusive occupation. The mother has been the children’s primary carer. It is convenient and comfortable for the children to return to their home.  That is effectively acknowledged by the father, although his application was that they would do so to live with him. However, there is a secondary benefit in that the mother runs a small business from the salon or granny flat area of the property and she will be able to return to doing that work.  It is also convenient to the children’s schools.

2. The father will need to find suitable rented accommodation and I will take that matter into account in respect of the spousal maintenance issue. 

3. There are Orders for restraints on the actions of the company. Appropriately, no submissions were made against those restraints. There is provision for the father to give notice of any proposed action and for a time lapse until that action is taken.

Spousal Maintenance

1. In relation to spousal maintenance, the mother seeks an order for payment of $500 per week.   She presently has an income of $350 per week net, with about $50 of expenses. 

2. The father is an electrician. He is employed by the parties’ company, I Services Pty Limited.  He discloses gross salary of $980 a week from the business and a further $340 a week from investment income.  He has tax and bank debt and personal debt to his parents. The father will be obliged to obtain rental income and will, no doubt, also be assessed shortly for child support. 

3. However, the mother is presently precluded from obtaining Centrelink benefits due to her interests in family entities.  Accordingly, she will struggle to run the family without support.  For that reason, the mortgage debt secured on the family home should continue to be met by the husband together with land and water rates. 

4. The mother will also require for her use and the benefit of the children a vehicle as she has been used to having.  An Order is made for the current vehicle to be provided with a petrol card, with an alternative provision in the event that the company requires the recall of the vehicle for non-company purposes, of a substitute vehicle of similar make and age.

5. Having returned to the home, the mother will have the capacity again to generate income from her small business, and with the provision of a car and petrol, the use of the home, with rates of all kinds paid, she may not find it easy, but will be in a position to meet her needs and those of the children that are not met by child support paid by the father.

6. Taking into account the father’s obligation to find rented accommodation, to pay child support and to meet the payments on the house, I do not consider that any additional cash sum should be ordered and to that extent the spousal maintenance application is dismissed. 

7. I make Orders according. 

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 12 August 2015.

Associate:

Date:  27 August 2015