CERNY & SEIDLER

[2017] FamCA 874

FAMILY COURT OF AUSTRALIA

CERNY & SEIDLER [2017] FamCA 874

FAMILY LAW – CHILDREN – Interim parenting – Where there is a young child – Where the father seeks increased time, block holiday time and time during the week with the child –Where the child is about to start school – Where there is no family violence reported – Where there is no expert evidence – Where the difference between one night and two nights is non-justiciable – Where an expert report is ordered – Interim orders made by consent for the father to spend overnight time with the child on alternate weekends and during the week – No order made for block holiday time.

FAMILY LAW – PRACTICE AND PROCEDURE – Where orders were previously made for a single expert report and the necessary arrangements have not been made – Where the mother has had contact with the appointed expert –Where it is preferable for the parties to engage in the process without fear of bias – Orders made by agreement for a new expert to be appointed.

FAMILY LAW – COSTS – Where the father seeks an order for interim costs – Consideration of whether it is appropriate to exercise the Court’s power on an interim basis – Where the Court’s power depends on there being an identified net pool of assets – Where no clear net pool of assets is identified – Where the father seeks as an alternative that the mother borrow funds as part of the costs order or a dollar for dollar order is made – Where the Court cannot make the undertakings and the collateral commitments that a borrower has to make in borrowing funds - Where borrowing would mean another change in the ownership of the property –Where regard is had to the capacity of creditors to be repaid and the impact of one party having a financial advantage over the other – Where there is to be a conservative exercise of power under s 79 – Costs application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 79, 114

Barro & Barro (1983) FLC 91-300 In the marriage of Hogan (1986) FLC 91-704 In the marriage of Poletti (1990) 15 Fam LR 794 Strahan & Strahan (interim property orders)(2011) FLC 93-466 Zschokke & Zschokke (1996) FLC 92-693
APPLICANT:	Mr Cerny

RESPONDENT: Ms Seidler

INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW
FILE NUMBER:	SYC	6696	of		2014
DATE DELIVERED:	9 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaum

SOLICITOR FOR THE APPLICANT: McGirr Lawyers

SOLICITOR FOR THE RESPONDENT: Appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

Orders

1. By consent, orders are made in the terms of the document titled “Consent Orders” (Exhibit 1 dated 9 October 2017), as set out hereunder:

   1.      That Order 2 of the Orders made 28 April 2015 be varied to substitute the name “Dr B” for the name “Dr C” and any reference in the orders of 28 April 2015 to “Dr C” shall be a reference to “Dr B”.

   2.      That Order 3 of the Orders made 28 April 2015 the date “1 December 2017” be substituted for the date “8 July 2015”.

   3.      That the child of the marriage namely D born … 2012 (hereinafter referred to as “the child”) spend time with the father as follows:-

   (a)From 5.00 pm 24 December 2017 to 5.00 pm 25 December 2017.

   (b)From 5.00 pm 25 December 2018 to 5.00 pm 26 December 2018

   and any orders inconsistent with those times shall be suspended.

   4.      That the mother shall spend time with the child as follows:-

   (a)From 5.00 pm 25 December 2017 to 5.00 pm 26 December 2017.

   (b)From 5.00 pm 24 December 2018 to 5.00 pm 25 December 2018.

   and any orders inconsistent with those times shall be suspended.

   5.      That order 12 of the Orders made 28 April 2015 be discharged and the child shall spend time with the father as follows:-

   (a)Each alternate weekend from 8.00 am Saturday to 5.00 pm Sunday commencing 14 October 2017.

   (b)Such other time as agreed between the parties and pursuant to further orders made by the Court.

   6.      That each of the parties shall ensure that the child attends sport commitments of a Sunday morning.

2. By way of further interim orders the father spend time with the child as follows:

   (a)     Commencing 18 October 2017 and each alternate Wednesday thereafter from completion of pre-school/daycare/school Wednesday to commencement of pre-school/daycare/school on Thursday;

   (b)    Commencing 25 October 2017 and each alternate Wednesday thereafter from after school or 3.00 pm in the case of a non-school day until 6.30 pm or such other time as the parties may agree; and

   (c)    Commencing 5 January 2018 the time referred to in Order 1. (5)(a) herein be extended to commence from completion of pre-school/daycare/school on Friday or 3.00 pm in the event that the Friday is a non pre-school/daycare/school day.

3. Until further order the weekly regime identified herein shall continue during school holidays subject to the orders made today in relation to 24, 25 and 26 December.

4. The father’s Application in a Case filed on 4 September 2017 seeking orders for interim costs and a dollar for dollar order is dismissed.

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 < Cerny & Seidler 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 SYDNEY

FILE NUMBER:  SYC6696 of 2014

Mr Cerny

Applicant

And

Ms Seidler

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting and financial orders.  The father is 42 years of age, he lives at Suburb E.  The mother is 40 years of age, she lives at Suburb F.  They were married in 2009 and separated in January 2014.  They have one child, D, who was born in 2012 and he is five and a half years of age.  He is due to start at Suburb F Public School next year.  He is healthy and doing well.  He has not had any significant overnight time with the father.  There was some overnight time for a while after separation, but orders were made by Chief Judge Pascoe of the Federal Circuit Court in April 2015 putting in place an arrangement for day only time on Thursdays and Saturdays.

2. The father says there were some informal changes to that arrangement whereby he had the boy for a bit longer on Thursdays, a bit longer on Saturdays and sometimes he had the child on Sundays.  The father says that his mother was extensively involved in the child’s care in the first two years of his life.  After separation, the parties lived under one roof for about seven months.  On 6 September 2014, the mother and child moved out to the maternal grandmother’s home.

3. By agreement, there were two nights overnight with the father after that, but I think that was only for a month to six weeks.  At about that time the parties agreed to sell a property they owned at Suburb F.  The father says that the mother cancelled the Suburb F auction on 18 October 2014, and stopped his overnight time.  The mother started proceedings – these proceedings – as to financial matters in the Federal Circuit Court in October 2014.  The father responded in relation to parenting, or commenced his own proceedings in relation to parenting shortly thereafter. 

4. The Court was told that the parenting and financial matters were agreed on 10 March 2015 but by 17 March, there was no agreement.  Interim parenting orders were made by the Chief Judge, as I have indicated, on 28 April 2015.  The matter was transferred to this Court in July 2015.  It came up before me for a first day of the Less Adversarial Trial in July 2017, and the proceedings have been expedited.

5. The orders made in the Federal Circuit Court included an order for a single expert, Dr C, to prepare a report and for the parties to share the cost of that report.  From 2015 to today, the parties have not arranged for that report to be prepared.  I understand that the father indicated that he could not or would not meet his half share of the costs.  The report was estimated to cost about $20,000 and orders were made providing for the payment of that money.  In the meantime, there was some contact between the mother or connections of the mother and Dr C.

6. The father now opposes Dr C being the single expert.  The Independent Children’s Lawyer (“ICL”) does not disagree with that.  The mother would like to retain Dr C.  I have indicated to the parties that Dr C is one of a small number of forensic psychiatrists who provide reports in proceedings before this Court.  He is a very senior and respected expert, but for the reasons that I gave earlier I think it is preferable that the parties go into a process where they feel as though there has been no special access between one of the parties and the expert.  A change of expert has subsequently been agreed, and I have been given a minute of agreement by the ICL.  That includes substituting the name Dr B for Dr C in the relevant order from 2015.  The parties have also agreed to some changes in relation to the child’s time with his father.  They have agreed to start overnight time each alternate weekend, and that is going to commence next weekend.  They have agreed to arrangements to share Christmas for the next two years.  They have agreed that whoever has the child will ensure that he attends his summertime Sunday morning sport arrangements. 

7. That leaves a number of issues.  The father wants a progression in his time with the child.  He wants block holiday time, he would like overnight time during the week.  The ICL agrees that the father should have an overnight time during the week.  She joins with the father’s application for that to be, rather than Thursday overnight, Wednesday overnight and she proposes that from the start of January next year the father’s weekend time extend to Friday evening on alternate weekends starting after school or at 3.00 pm Friday through to Sunday.

8. There is some confusion about the parties’ applications.  The mother has an Application for Final Orders that is inconsistent with what she wants me to order today.  She filled in a parenting questionnaire in August of this year which is inconsistent with the orders she wants me to make today.  I do not understand why there are those discrepancies.  Both parties are health professionals and they are obviously highly intelligent.  I am not really sure what has happened.  It is said in the mother’s case, “Chief Judge Pascoe said we shouldn’t make a progression to something more extensive until we hear from the single expert.”

9. The parties have not funded a single expert report for two years and, without the single expert’s report, they now agree that there should be a significant change in the child’s time with the father.  It is submitted in the mother’s case that the Court should be cautious, and should not do anything more than the bare agreement that has been reached between the parents.  That is a legitimate point of view.  Obviously, the Court’s powers are not limited to the terms of the parties’ agreement.  However, the regime that was appropriate for a three year old child may not adequately meet the needs of a five year old child.

10. As Ms Smith says, the child is about to put up with quite a significant change in his life, and it is probably best to settle him down into a regime with his father prior to him having to cope with so significant a change as spending five days a week at school.  On the positive front, there is no sign that he is suffering any stress.  He is doing well, he is happy.

11. There seems to be meaning in the parties’ relationship with the child.  There is no evidence of the child suffering harm from abuse or neglect or violence.  The child is too young to express a view.

12. There are loving relationships between the child and each of the parents.  The father says – and I have no reason to doubt it – there has been a loving relationship between the child and his paternal grandmother.  The mother is supported by her mother, and the father says – and there is no challenge to it – that there has been even overnight time between the child and connections on the maternal side.  I assume there are loving and supportive relationships there, too.

13. Not all of the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) are going to be relevant to every proceedings. It is impossible to make findings about some of them, some of them are likely to be not relevant to this child. As to the extent to which each of the parents has taken or failed to take an opportunity to participate with the child, decision to spend time and communicate with the child, there is no suggestion of the father not taking the time he was offered or failing to be involved in decisions about the child. There are no such criticisms of the mother.

14. As to a failure to maintain the child, there is a dispute about that.  The mother contends that the father has not provided adequate financial support.  The father says that he has paid the assessed child support; that he took on, after the parties’ separated, matrimonial debt, whereas the mother has had the benefit of an asset.  I cannot make a finding about the truth of that.  The truth of that is likely to come in a decision of the Child Support Agency or ultimately the Administrative Appeals Tribunal (“AAT”).  As to the likely effect of changes in the child’s circumstances, the parties have agreed that the child should start overnight time now.

15. We do not know about the impact of an additional night or an additional two nights of overnight time. Some of the matters in dispute are non-justiciable. One night versus two nights in a fortnight or a week is a non-justiciable issue – there will be no clear learning in relation to children, nor a provision of Part VII of the Act, that could be used to distinguish between those propositions.

16. That is not to say that such a decision is arbitrary, just that one is left with the fact that individual children can react differently to changes, and we do not know how the child will react.  The Court looks to the parents to display insight into the needs of the child.  The parents will have the opportunity to observe the child and react if he is not coping.  Of course each increase in the father’s time is an extra night away from the mother.

17. A child might cry at the point of handover for several reasons.  The child might be afraid of going to the other house; the child might cry because he is going to miss the parent he is leaving.  However, the child might also cry because he is insecurely attached to the parent he is leaving and so feels that he cannot safely leave that parent without the comfort of an assurance that all is well.  In my view it is sensible to progress cautiously. 

18. As to practical difficulties and expense:  the parties are both very busy with their work.  The mother has two jobs and they both have extensive commitments.  As a general proposition, time with a parent would take priority over time in a childcare situation where that is just for that purpose alone.  There is something to be considered there. 

19. As to the capacity of the parents: each of them wants me to make orders for unsupervised time overnight with the other.  That means they must think that the other parent is capable of meeting the child’s practical needs and emotional and intellectual needs.  I have no reason to doubt that that would be the case.

20. As to the maturity, sex, lifestyle, background, culture and traditions of a child:  I am told that there is a relevance to religion for the child.  I do not think there is any other reference to any cultural aspects.  He is a young boy.  That is what I know about him.  He is not an Aboriginal child. 

21. As to the attitude to the responsibilities of parenthood demonstrated by the parents, the child is apparently well and happy, and that must be attributed to the parents.  He has mainly been in the care of the mother.  That must be a particular tribute to her.  The parents cannot agree, and that is a bit vexing.  The parents have changed their minds, and that is a bit vexing.  They have a terrible relationship, and that is something that will be a burden to the boy, unless they can manage to try and insulate him from that.

22. I do not think there is any evidence of family violence.  I am not told of any family violence order that issued.  These are interim proceedings, and so I cannot avoid further proceedings.  The father seems to want now all of the orders that would ever be made for the child.  The mother’s case is that there has been an interim hearing and there should not be more interim changes.  There is something in what they both say.  The weakness of the mother’s case is that the child is substantially older than he was when the orders were put in place. 

23. If the Court system was properly resourced for families who cannot reach agreement, this case would have been over.  It is a disgrace that we have not been able to get to it before now, but it is just a function of resources.  The only cases being listed in this registry at the moment are expedited cases.  The cases of all of the families who do not have any urgent problems are just sitting in a pool. 

24. In my view the orders proposed by the ICL provide a safe, measured course.  Minds differ about the speed at which change should be implemented.  The thing that most concerns me is that the child is facing the biggest change of his life at the beginning of February next year when he will commence school.  There is something in the idea that we should bed down some changes now and have them in place.  The parents are on watch to make sure that he boy copes with the changes.  Under the proposed regime both parents are involved in the school week.  That is one of the measures of substantial and significant time.

25. Where there is to be equal shared parental responsibility, the Court is required to consider with a view to ordering equal time.  It would be reasonable not to order it where neither of the parties has asked for it.  If the Court does not order equal time, it is to consider with a view to ordering, substantial and significant time.  That means time whereby parents are involved in all aspects of a child’s life and the child is involved in all aspects of the parents’ lives, that it includes time during the working week and time during the weekend and so on.  I believe that the prescription from Ms Smith addresses that need. 

26. There is no need to go to seven days block time in a school holiday.  With a fair wind we will have interviews with Dr B in March 2018 and a report, presumably, in April/May.  I will list the matter for mention at about the time of the interviews and we will find trial dates at or about the time shortly after the report has been released and will make the orders for the evidence of the lay witnesses and any treating practitioners.  In that way we will hopefully have timely evidence and a current report.  Hopefully, the trial should be held in about the middle of next year. 

27. The next issue is an application for interim costs.  The father seeks a sort of cascade of orders.  First he seeks payment of $250,000, then a drawing down or a borrowing of $250,000, then that he able to borrow $250,000, leading, ultimately to a dollar for dollar order whereby if the mother pays money for her own legal fees, she pays money for the father’s fees. 

28. The main jurisdiction for this comes in s 79, and that is the way the application is crafted.  The application is opposed.  It is to be a conservative exercise of power under s 79.  That is the effect of a decision of Strahan & Strahan (interim property orders) (2011) FLC 93-466, and that means that the party seeking the orders must describe an exercise of power under s 79 whereby there would be a payment to that party that would not interfere with the ultimate discretion of the Court on a final basis.

1. This is an exercise of power when there is no expert evidence and no testing of lay evidence.  There might be an error in relation to valuations.  There might be an error in relation to contributions.  There might be error in relation to adjustments.  If the Court cannot adjust or undo the effect of the interim order at a later time, then the exercise of power under s 79 might be ultimately frustrated. 

2. The parties do not agree about the net asset pool.  The father’s case is that there is a valuable net pool of assets (with the main asset valued at $1.8 million), I have made contributions, I am entitled to an adjustment but even if I only get 35 per cent, I should get perhaps $140,000 and that is a proper amount to order now.

3. I have no idea about the net asset pool.  The balance sheet describes a potential insolvency.  The balance sheet shows on one side of the table no assets and on the other $67,000.  It shows $1.5 million and $1.7 million in debts and $140,000 in super. 

4. As I tried to tell the father earlier, without much success, the Court’s power depends on there being a net pool of assets.  There is no power without that, and on this document there is no suggestion that there is a net pool of assets.  It may be that there is, but I cannot guarantee it, and I am not permitted to take a chance that there is a net asset.  That is the end of that argument. 

5. The father’s fall-back position is that the mother be forced to borrow the money.  The Court should be very cautious about an order for interim costs which required a borrowing.  That is because the Court cannot make the undertakings and the collateral commitments that a borrower has to make in borrowing funds.  The next fall-back position is, “Transfer the house to me, or allow me somehow to borrow against the property myself.”  The father’s case is that he has not been able to afford to pay for a single expert’s report.  Although his financial statement seems to show a small surplus each week, it is not a surplus that is going to service a borrowing of the sort that he has proposed. 

6. For the father to borrow it would mean another interference in the ownership of the property.  It has already been transferred to the mother under interim orders so that she could borrow.  In an earlier judgment the Chief Judge explained that he was doing that in aid of exclusive occupation so that the mother could keep a roof over her head.  The Chief Judge referred to action under s 114 rather than dealing with the matter purely under s 79.

7. There is power to grant a mandatory injunction under s 114 in relation to the availability of a former matrimonial, but, I am not going to transfer this home again on an interim basis. As I say, that runs contrary to the father’s case. In the event that there are no net assets it would create a whole new problem. One of the provisions of the Act requires the Court to have regard to the capacity of creditors to be repaid.

8. Once the situation goes from zero to minus something there will be creditors looking for payment where the Court has taken a step to prejudice their rights.  In theory, once you get to that point the Court would require that notice be given to every creditor the parties have.  That proposal of the father is not viable.

9. The final application is a dollar for dollar order.  Minds differ about such orders.  The theory is that it is unfair for one party to have access to matrimonial funds for their legal fees and thereby obtain an advantage in the proceedings.

10. In cases such as In the marriage of Poletti (1990) 15 Fam LR 794, Zschokke & Zschokke (1996) FLC 92-693; In the marriage of Hogan (1986) FLC 91-704 and Barro & Barro (1983) FLC 91-300, interim costs orders were made where there was some financial complexity to the dispute, where one party had a significant advantage over the other, and one party controlled the patrimony or the knowledge about the parties’ financial affairs. In circumstances where there are no funds available for legal fees, the Court has on occasions made an order whereby if a dollar goes to the costs of the party in a superior position, that party is responsible for paying a dollar towards the costs of the other party. A difficulty with this case is that there is no evidence that matrimonial funds have been applied to the mother’s costs. The mother says that she has borrowed money from members of her family. The problem is that they cannot be ordered to pay the father’s costs. We are well into the proceedings now and heading towards a final trial. It might be that neither of the parties will have legal representation. The father misstated the legal position. He said both parties should have legal representation. There is no such principle. The sad fact is that there is no right to legal representation. I agree with him, however, that there is an advantage if the parties have legal representation.

11. The father has made a nice job of his submissions today.  The father is a man of intelligence and is able to marshal documents and arguments together.  He tried to cram two hours’ worth of submissions into half an hour, but I cannot blame him for that.  I agree with him, that it would be better if both parties had equal access to legal representation but, unfortunately, even in a rich country like this, we do not have that facility.  There is little legal aid available and then only in parenting cases. 

12. The father’s applications for interim costs and for a dollar for dollar order will be dismissed. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 October 2017.

Associate: 

Date:  6 November 2017