Deakin & Parry
[2008] FMCAfam 590
•15 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEAKIN & PARRY | [2008] FMCAfam 590 |
| FAMILY LAW – Property – need for resolution of parenting orders before property orders are resolved – injunction – manner in which the value of the property should be apportioned between the parties. FAMILY LAW – Contravention – serious issue of psychological abuse of a child by reason of the conduct of the parties – interim parenting arrangements – all parenting orders to be suspended – child live with the mother. |
| Family Law Act1975 (Cth) |
| Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MS DEAKIN |
| Respondent: | MR PARRY |
| File Number: | BRC 7391 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 15 May 2008 |
| Date of Last Submission: | 15 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Page |
| Solicitors for the Applicant: | Bell Dixon Butler |
| The Respondent appeared on his own behalf |
ORDERS
That the applications for contravention filed 28 August 2007 and
15 April 2008, and the application for contempt filed on 15 April 2008 be adjourned to 24, 25 and 27 November 2008.That the applications for parenting orders shall be adjourned to a date to be fixed for hearing.
That the Child [A] born in 2001 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Brisbane.
AND IT IS ORDERED UNTIL FURTHER ORDER
That all parenting orders shall be suspended.
That the child shall reside with the mother.
That the child shall spend time with the father for periods of not less than two hours duration every alternate weekend which shall be spent at and supervised by the [X] Contact Centre.
That the father shall be at liberty to telephone the child on Wednesday and Saturday in each at 5.00pm by using the wife’s mobile telephone number.
That neither party shall remove or attempt to remove the child from Australia without the consent in writing of the other or an order of this Court.
That the proceedings for property settlement shall be adjourned to a date to be fixed.
That the parties shall forthwith appoint a single expert for the purpose of valuing the vessel “Z” being a 13 metre full cabin steel hull vessel Australian registration [1] and Queensland registration [2] and in the event that either party fails to engage such expert, then the other party shall be at liberty to call an expert valuer as an adversarial expert.
That until such time as the vessel has been inspected by the single expert or valuer the husband shall be restrained and an injunction issue so restraining him from moving the vessel from its present location and thereafter the husband shall not move the vessel without providing to the solicitors for the wife the date of such proposed move and the p place to which it is intended to move the vessel.
That this matter be adjourned for mention at 9:30am on 8 September 2008 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Deakin & Parry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7391 of 2007
| MS DEAKIN |
Applicant
And
| MR PARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came on today for trial in respect of property matters, a property application having been filed on 16 February last year. At the outset, the applicant in respect of the property matters, being the wife, makes application for an adjournment of the application for reasons that will become apparent shortly. The application is one which is extremely complicated by events which have followed upon orders which were made on 8 August 2006 concerning parenting matters.
It is apparent from events that have occurred since 8 August 2006 that there has been considerable difficulty in terms of the implementation of those orders for reasons that I am not going to explore today and I am certainly not going to make any findings about today; but in any event, it is apparent by reason of the number of contravention applications that have been filed in this Court, particularly by the father, that there are serious issues in relation to the way in which the original parenting orders have progressed.
It is premised upon that difficulty and the difficulty with parenting orders that Mr Page contends, first, that by reason of the matters of credit which will have to be resolved in respect of the contravention applications, it would be inappropriate for me as the judicial officer assigned to hear that case to hear the property case if it were to be adjourned or, in any event, that by reason of the contribution issues that will arise out of a necessary review which is contended for in respect of parenting orders that, in any event, the property matter should not proceed today.
Clearly, if the property matter proceeds today the first matter will not be an issue but I think there is something in the submission made that in respect of the resolution of parenting orders such should occur before property orders are resolved, particularly when consideration is necessary in terms of any property orders concerning s.79(4) contribution factors and s.75(2) factors, which are contribution factors which are significantly affected by the underlying parenting orders.
It, therefore, seems to me that the first issue to be resolved today is whether or not there is, in fact, a real basis for there to be a review of the parenting orders made on 8 August 2006. That requires, really, at the outset, for me to have regard to the principles in Rice v Asplund in respect of the review of parenting orders. A significant change of circumstances has to be identified. In this case, it seems to me, having regard to the history of this case premised upon the contraventions alleged, premised upon the fact that the parties have not been able to agree in relation to simple matters such as overseas travel and premised upon the matters which are contended for by the father in his submissions today, it is more than apparent to me that the regime which is presently in place is entirely unworkable for reasons that I am not going to investigate today.
It seems to me that, when one has regard to that fact and particularly when one has regard to the fact that the arrangement that was put in place was a consensual arrangement, it was not one that was reached following a full ventilation of matters at trial, but rather reached by way of consent orders. It follows that it is important in this case, I think, for there to be a trial of these matters so that a regime can be put in place which involves the Court's intervention. In those circumstances, I think that the mother has in this case successfully hurdled the Rice v Asplund[1] barrier and accordingly it is appropriate that there be a review of parenting orders.
[1] [1979] 6 LF 570
Given that I think that it is appropriate there be a review of parenting orders it is obvious in my view that the property matter should not be disposed of until the parenting matters are resolved and, to that end, both the property and the parenting matters should proceed to be determined together. On that basis the application for the adjournment will be allowed.
So far as the other Minutes of Order that are submitted by Mr Page are concerned, other matters that need to be resolved concern what interim regime is put in place and, secondly, matters concerning an injunction in relation to a vessel which is presently used by the father.
Injunction
I deal with the injunction first. The evidence is that the principal asset of the parties is a vessel which is known as the [Z]. The [Z] is said to have a value of about $150,000 but I have no reliable evidence to assist me in that regard. Notwithstanding that matter, apparently it is about a 13 metre full cabin steel hull vessel. It bears an Australian registration number [1]. Without traversing the facts in full, it seems that this vessel was the subject of a report by the husband to the Maritime Safety Authority of Queensland and it was alleged the vessel was sunk and a complaint or Maritime Incident Report was made.
The matters are particularised, as I say, in Exhibit 1, but the long and the short of it is that the whole story about the vessel being sunk was clearly a false story. Indeed, it seems that by reason of the false complaint the father was dealt with in the Brisbane Magistrates' Court in respect of three charges of providing false or misleading information under s.177 of the Transport Operations Marine Safety Act 1994. He was charged also with two charges under s.205 of that Act for giving Queensland Transport officers false and misleading information. He pleaded guilty to those charges and was fined a sum of $4,000. It seems, when one has regard to those matters, that there is a real basis for concern on the part of the wife that the husband may seek to do something with the vessel.
Going then to first principles, in order to obtain an injunction, of course, it is necessary to establish that there is a serious issue to be tried. There is undoubtedly a serious issue to be tried in this case. The vessel, arguably, is matrimonial property and the issue in relation to it is the manner in which its value should be apportioned between the parties having regard to the provisions of the Family Law Act. As to where the balance of convenience lies, it strikes me that having regard to the history which is apparent from the events reported in Exhibit 1 that there is, indeed, a real concern that the father may seek to do something with the vessel between now and trial which may result in either the vessel's loss, damage or disappearance and that in those circumstances it is appropriate that the vessel be protected for the benefit of the parties for the purpose of litigation and, to that end, I am content to make an order in terms of para.7 of the draft orders.
The vehicle is presently located upstream from [Y].
Orders
I will direct the wife file and serve any further contravention applications on or before 13 June and any such applications will proceed to hearing immediately following the hearing of the husband's contravention and contempt applications.
So far as direction one is concerned, I will direct that they be adjourned to the date that I have already set.
I will make an order in terms of paragraph 3.
Parenting Issues
This is an application where, as I have already noted, there are in place orders. Mr Page, for the mother, requests that those orders be suspended until there be a further hearing of this matter in order to resolve an appropriate parenting regime for the child of the marriage in this case, that being the child [A] who was born in 2001. For her part, the mother contends for orders in terms of para.4 of the wife's Minute of Order. For the husband's part he contends for orders that are consistent with those that were made by Slack FM by consent of the parties on 8 August 2006. He also, in the meantime, contends for other orders which involve the child living with him.
In broad terms, the most significant departure from the arrangement that is presently in place involves questions of spending time with. Presently the orders provide that the child lives with the mother and spends time with the father and put in place a regime for spending time. The regime on the part of the orders provides for alternate weekend time from 4 pm Friday to 4 pm Sunday, unless the father is travelling to Brisbane for the weekend, at which time he may spend time with the child until 7 pm. It seems, by reference to that particular order alone, that the orders that were made at that time had in contemplation the residence of the parties principally at [B]. There are further orders in place that involve the usual specific occasions and school holiday time. The regime contended for by the mother is one that involves supervised contact at a contact centre.
As with all these proceedings one starts on the premise, of course, having regard to the objects set out in s.60B of the Act and the principles provided for there, one starts from a premise that there is a presumption of equal shared parental responsibility in relation to the making of parenting orders. That presumption applies, of course, in the making of interim orders unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order. The presumption, for instance, is provided not to apply if there are reasonable grounds to believe that a child or parent is engaged in abuse of the child or family violence.
There are no serious suggestions in this case of family violence, but it strikes me, having regard to the history of the conduct between the parties, that there is a serious issue in this instance of psychological abuse of a child by reason of the conduct of the parties. One only has to look at the allegations in the contravention application made by the father to develop an appreciation of that matter. For instance, it is alleged that in May and June, on numerous occasions, the respondent has terrorised the child by her conduct. Likewise, the mother has taught the child to lie to the father.
The events that have been related by the father in the course of his submissions to me lend support to all of that by the manner in which he says that the parties have been tearing at the child in a manner which seems similar to that of two children tearing at a rag doll. It is quite clear that in those circumstances, where the parties cannot agree upon even the simplest of matters, that it would be quite inappropriate for there to be, at least on an interim basis, an arrangement which involves equal shared parental responsibility, and that is without regard to questions of whether there be equal time or significant and substantial time as one would ordinarily be time to address if the presumption was to apply.
It seems to me in these circumstances it would not be appropriate, having regard to the history of this matter, that the presumption be applied. It is entirely unworkable and could be resolved on that basis alone without the need to necessarily addressing all the s.60CC considerations; but by addressing one in particularly, namely the consideration of the Court to make an order that would be less likely to result in the institution of further proceedings. On that basis alone it would not be in the best interests of the child for the presumption to apply because it is inevitable that this child is going to simply be embroiled further into the dispute between her parents.
On that basis, then, it leaves me to resolve these interim arrangements on the basis of what are simply the best interests considerations, bearing in mind that the Court must have regard to the best interests of the child as a paramount consideration. Those matters require the Court to address the considerations provided for in sub–s.2 and 3 of s.60CC. Insofar as the primary considerations are concerned, first is the need to put in place a regime which will ensure that the child has the benefit of having a meaningful relationship with both of her parents.
Bearing in mind that there will be a trial later this year in relation to parenting orders, I am giving that matter consideration against that background. I am not assisted, unfortunately, with any contemporary family reporting, or any family report to assist me in this regard, but irrespective, it strikes me that having regard to the toxic relationship that exists between both the husband and the wife in this instance it seems to me that the only reasonable arrangement that can be put in place is one that involves the intervention of third parties to ensure that the child is able to make seamless transition from one parent to the other on occasions where there is to be time spent. To that end I think that the intervention of a contact centre is appropriate and is clearly in the child's best interests, at least until this matter can be further investigated and, on that basis, the wife's application appears to present the best interests arrangement.
The need to protect the child from the physical or psychological of being subjected to abuse in this instance
As is apparent, as I say, from the contravention application brought by the father, he clearly is of the view that the child has been subjected to abuse and psychological harm on the part of the mother. Of course, that is not going to resolve itself in the short term. It seems to me that the best way to minimise – and that is all one can do in this instance – the exposure of the child to physical, and in particular, psychological harm, is to put in place a regime which involve the intervention of an independent third party, again, to ensure that the child is able to seamlessly make the transition from one parent to the other for the purpose of spending time and again. To that end, it strikes me that the proposal made by the mother represents the best interest outcome in this case.
Additional Considerations
Next are the additional considerations, which require me to consider any views expressed by the child. In this instance the child is, in my view, too young to express any views that are going to weigh heavily in the Court's mind, and so I will move to the next consideration, which is the nature of the relationship of the child with each of the child's parents. I am unable to make any formal finding in the context of this application in relation to that matter because of the dispute between the parties. It is quite clear, as I have already indicated, that there is an extremely toxic relationship in existence.
The father makes allegations that the mother denigrates the child in front of her; the mother likewise complains about the conduct of the husband, which includes having him charged by the civil authorities with offences involving stalking and various domestic violence offences. Quite clearly these parties have such a poor relationship that it is impossible, at this juncture, for the Court to draw any conclusion as to how either of these arrangements can be seen to advance the best interests of the child in terms of developing, or at least retaining, that relationship that presently exists; and so to that end the proposals are, in my view, each neutral.
The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent
That requires the Court to take into consideration the extent to which each of the child's parents have taken or failed to take the opportunity to participate in making decisions about major, long–term issues in relation to the child, spend time with the child and communicate with the child. Again, in the context of the dispute between these parties in what is clearly a high dispute environment, toxic feelings flying between both parties and the Court not being in a position to test those matters, it is impossible for the Court to draw any conclusion as to whether or not either party has failed to fulfil their respective obligations. It is a matter which will have to be resolved at trial; and accordingly, to that end, each of the proposals is neutral.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of her parents
In this instance the arrangement which is proposed on the part of the wife will largely see what could be regarded as the present situation prevailing, although one would hope that in the context of there being an appropriate supervised transition there will be now more contact between the child and her father than there has been to date, and to that end, again, when one has regard to the fact that the present arrangement which is contended for by the father has utterly failed, it can only be said that the proposal advanced by the mother is clearly the better of the two proposals.
The practical difficulty and expense of the child spending time with and communicating with the parent and whether that expense will affect the child's right to maintain personal relations and direct contact with both parents
Since the time of the original orders it seems the father has relocated to Brisbane and resides on his boat in Brisbane. The mother continues to reside at [B]. It seems the [X] Contact Centre is about halfway – perhaps a little closer to [B] than to Brisbane, but if so, only by a margin – and it seems that as a halfway point it represents, again, an equal difficulty to both parties but certainly one that is not impractical and not unreasonably expensive from the perspective of both parties and accordingly, when contrasted to an unworkable arrangement which otherwise existed, represents to my mind, having regard to the practical issues involved, the best proposal.
The capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs
It does not appear to be a significant issue in this case and so to that end the proposals are neutral.
Questions of the maturity, sex, lifestyle and background of the child and of the parents
In this case there are no particular matters, I think, that warrant comment, at least in the context of an interim application; and again, to that end, the proposals are neutral.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents
That requires me, again, to consider s.60CC(4) and the sub–s.(4)(a) requirements, which I have already commented upon and do not make any further remarks.
Questions of family violence
I do not think are particularly relevant in this case.
The issue of an order which would be least likely to lead to the institution of further proceedings in relation to the child, and I have already made earlier observations
The ongoing contravention applications speak for themselves. The earlier orders are clearly far too complicated for these parties by reason of their own toxic relationship. It is inevitable that if I simply leave the earlier regime in place it is more likely than not that there will be further contravention applications brought and accordingly it seems to me that having regard to that consideration the best proposal is that which is afforded by the wife.
Orders
Accordingly, when one weighs up all the matters that are required to be considered, both primary and additional, the overwhelming preponderance favours orders in terms of the wife's Minute in paragraphs 4(a) to (e) and I am going to make orders in those terms.
I certify that the preceding thirty–five (35) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 12 June 2008
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