Dees and Dees
[2010] FMCAfam 682
•8 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEES & DEES | [2010] FMCAfam 682 |
| FAMILY LAW – Children – expert report in general terms on Asperger’s Disorder compared with family consultant’s very recent observations of child – interim proceedings – shared care arrangement & “best interests” of children – sole occupation of former matrimonial home (general principles) – spousal maintenance (general principles) – notice to & joinder of third parties in property proceedings – necessary parties – principles of advocacy. |
| Family Law Act1975, ss.60B, 60CA, 60CC(2), 60CC(3), 9a), (b), (c), (d), (e), (f), (g), (i), (l), 60CC(4), 60CC(4A), 65DAA, 72, 74, 75(2) Federal Magistrates Court Rules 2001, Part 11 |
| In the Marriage of Bevan (1994) 19 Fam LR 35 Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition: Text Revision) (Arlington, VA: American Psychiatric Association, 2000 [reprint 2007]) |
| Applicant: | MR DEES |
| Respondent: | MS DEES |
| File Number: | CAC 322 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 19 April 2010 |
| Date of Last Submission: | 15 June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 8 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Gould |
| Solicitors for the Applicant: | Farrell Lusher Solicitors, Wagga Wagga |
| Solicitor-Advocate for Respondent | Ms. Keogh |
| Solicitors for the Respondent: | KJB Law, Canberra |
ORDERS
The Parents have equal shared parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2001.
Subject to agreement in writing between the parties, the children continue to live in a shared care/equal time week-about arrangement with their parents in accordance with the Orders of this Court made on 4th March 2010.
Notwithstanding Order 2, and subject to agreement in writing between the parties, the Mother spend time and communicate with the Children as follows:-
(a) From 12:00noon Christmas Eve until 2:00pm Christmas day in 2010 and each alternate year thereafter;
(b) From 2:00pm Christmas Day until 5:00pm Boxing Day 2011 and each alternate year thereafter;
(c) For not less than four hours on each of the children’s Birthdays should they not otherwise be in her care and likewise the Father is to have the Children for not less than four hours if they are otherwise in the Mother’s care.
Notwithstanding Orders 2 and 3:-
(a) The children spend time with the mother:-
(i) Each Mother’s Day from 9am until 5pm;
(ii) On the Mother’s birthday each year:-
A.if the Mother’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
B.if the Mother’s birthday falls on a weekend from 9am until 5pm on the birthday.
(b) The children spend time with the Father:-
(i) Each Father’s Day from 9am until 5pm;
(ii) On the Father’s birthday each year:-
A.if the Father’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
B.if the Father’s birthday falls on a weekend from 9am until 5pm on the birthday.
For not less than four hours with their Mother on each of the children’s Birthdays should they not otherwise be in her care and likewise the Father is to have the Children for not less than four hours if they are otherwise in the Mother’s care.
Neither party shall denigrate the other nor their family in the presence of the children; and the parents will use their best endeavours to ensure that no other person does so either.
Each parent shall authorise any treating medical practitioner, psychologist, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child.
If the child (or children) falls ill, one of the parents shall notify the other parent. Each parent shall have the doctor’s, psychologist’s or alternative therapist’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
In the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
Each parent shall authorise any educational institution that the children attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as is practicable.
Pursuant to section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for the children.
The Legal Aid Office, New South Wales, is requested to make arrangements as soon as practicable for appropriate representation for the children.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Each party is to make available to Legal Aid NSW within 7 days copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports (if applicable, including the Children and Parents Issues Assessment).
Within 7 days of the date of these Orders, the husband vacate the property situate at Property W in the state of New South Wales [“the [W] property”] and thereafter, unless otherwise authorised in writing to do so, stay away from the [W] property.
Until further Order the wife have the exclusive use, enjoyment and occupation of the [W] property. For the duration of this occupancy, the Wife is to be responsible for any and all rates and outgoings in relation to the [W] property.
With reasonable notice in writing, Mr Dees be granted access to the former matrimonial home for the purpose of collecting any of his personal items.
Ms Dees be restrained from removing or disposing of any items currently kept at the former matrimonial home without the prior written consent of Mr Dees, or order of the Court.
Ms Dees return to Mr Dees any personal affects belonging to Mr Dees within 28 days of her resuming occupation of the former matrimonial home. If he has not already done so, within 14 days of the date of these orders, Mr Dees is to provide Ms Dees with a list of items to be returned pursuant to this Order.
Within 7 days the Applicant Husband provide to the Respondent Wife the sum of $30,000.00 (thirty thousand dollars) and the wife be at liberty to use those funds to purchase a motor vehicle.
Contemporaneously with the payment in order 20, the Respondent Wife make available to the Applicant Husband the Mercedes Benz motor vehicle registration number [D].
IT IS NOTED that publication of this judgment under the pseudonym Dees & Dees is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 322 of 2010
| MR DEES |
Applicant
And
| MS DEES |
Respondent
REASONS FOR JUDGMENT
A. Introduction
These interim proceedings involve four discrete issues. They are:
(a)whether the two children of the relationship ([X], who is 11 years old, and [Y], who is 8) should continue to live in a shared care/equal time arrangement with their separated parents, or live predominantly in one household;
(b)whether the Respondent Wife/Mother should have sole occupancy of the former matrimonial home;
(c)whether the Applicant Husband/Father should pay spousal maintenance (and if so, what amount should be paid);
(d)whether (and how/when) certain personal items of Mr Dees should be returned to him by Ms Dees.
In a number of respects, the first three matters, in my view, are somewhat related, if not mutually dependent. I say that because, to some degree, the parenting arrangements are affected by the living situation of both parents. In turn, the living situation of the parents, and the parenting arrangements, affect the spousal maintenance application.
For the sake of completeness, I set out in full the formal [amended] interim orders sought by each of the parties.
Applicant’s Interim Orders Sought
(1) That both parties have joint parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2001 (“the children”).
(2) That the children live with the Father.
(3) That the Mother spend time and communicate with the Children as follows:-
(a) Each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
(b) Each Wednesday from after school until 7:30pm;
(c) Half of all school holidays being the first half in 2010 and each alternate year thereafter and the second half of school holidays in 2011 and each alternate year therafter;
(d) From 12:00noon Christmas Eve until 2:00pm Christmas day in 2010 and each alternate year thereafter;
(e) From 2:00pm Christmas Day until 5:00pm Boxing Day 2011 and each alternate year thereafter;
(f) For not less than four hours on each of the children’s Birthdays should they not otherwise be in her care and likewise the Father is to have the Children for not less than four hours if they are otherwise in the Mother’s care;
(g) From 9:00am to 5:00pm on Mother’s Day should the Children not otherwise be in the Mother’s care and likewise the Father is to have the Children from 9:00am to 5:00pm on Father’s Day should the Children otherwise be in the Mother’s care;
(h) Such other times as arranged and agreed;
(i) Telephone time each Tuesday, Thursday and Saturday between 5:00pm and 6:00pm.
(4) That neither party shall denigrate the other nor their family in the presence of the children;
(5) Each parent shall authorise any treating medical practitioner, psychologist, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
(6) If the child falls ill such that one of the parents shall notify the other parent and both parents shall have liberty to attend that appointment. Each parent shall have the doctor’s, psychologist’s or alternative therapist’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
(7) That in the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
(8) That each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
PROPERTY ORDERS
(9) That within 7 days the respondent wife transfer to the applicant husband the Mercedes GL 320 Diesel motor vehicle.
(10) Contemporaneously with the transfer ordered in Order 9 above, the applicant Husband provide to the Respondent Wife the sum of thirty thousand ($30,000) which sum is to be deemed and acknowledged to form part of her property settlement on a final basis.
(11) That the Respondent Wife’s application for exclusive possession to Property W be dismissed and the applicant husband have exclusive use of the property hereinafter.
(12) That within 14 days of the date of these orders, the Respondent Wife do all things necessary to transfer and deliver to the applicant Husband:-
(j) All of his personal items including jewellery, gold medallions, personal papers, documents, and anything whatsoever of a personal nature belonging to the Applicant Husband;
(k) The lawn mower and filling cabinet inclusive of all contents;
(l) All of the children’s jewellery.
Respondent’s Interim Orders Sought
(1) The parties have equal shared parental responsibility for the children:-
(a) [X] born [in] 1999 [“[X]”]; and
(b) [Y] born [in] 2001 [“[Y]”];
(“the children”).
(2) The children live with their Mother.
(3) The children spend time with their Father as follows:
(a) During school terms:
i)Each alternate weekend from after school on Friday until 1:30pm on Sunday starting on 5 March 2010;
ii)Each alternate weekend from 5:00pm on Saturday until 5:00pm on Sunday starting on Saturday, 13 March 2010;
b) In the school holiday periods that fall at the end of Terms 1, 2 and 3 for the second half of all school holiday periods that start in 2010 and each alternate year thereafter, and the first half of all school holidays periods that start in 2011 and each alternate year thereafter;
c) In the school holiday periods that fall at the end of Term 4 for the third, fourth and sixth weeks in school holidays that start in 2010 and each alternate year thereafter and for the first, second and fifth weeks in school holidays that start in 2011 and each alternate year thereafter; and
d) At such extra or alternate times as agreed between the parties.
(4) For the purposes of Order 3(b) and (c) above, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
a) The first half of school holidays is deemed to start at the end of classes on the last day of school;
b) The second half of school holidays is deemed to start at 5:00pm on the middle Saturday of the school holidays;
c) The second half of school holidays is deemed to end at 5:00pm on the day before the first day of the next school term;
d) The first week of the end of Term 4 school holidays is deemed to start at the end of classes on the last day of school;
e) The second week of the end of Term 4 school holidays is deemed to start at 5pm on the Sunday that falls at least one week after the last day of school;
f) The third week of the end of Term 4 school holidays is deemed to start at 5pm on the Sunday that falls one week after the start of the second week;
g) The fourth week of the end of Term 4 school holidays is deemed to start at 5pm on the Sunday that falls one week after the start of the third week;
h) The fifth week of the end of Term 4 school holidays is deemed to start at 5pm on the Sunday that falls one week after the start of the fourth week; and
i) The fifth week of the end of Term 4 school holidays is deemed to end at 5pm on the Sunday that falls one week after the start of the fifth week.
(5) Notwithstanding Orders 2 and 3:-
a) The children spend time with the Mother:-
i) Each Mother’s day from 9am until 5pm;
ii) On the Mother’s birthday each year:-
(1) if the Mother’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
(2) if the Mother’s birthday falls on a weekend from 9am until 5pm on the birthday.
b) The children spend time with the Father:-
i) Each Father’s day from 9am until 5pm;
ii) On the Father’s birthday each year:-
(1) if the Father’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
(2) if the Father’s birthday falls on a weekend from 9am until 5pm on the birthday.
c) On each of the children’s birthdays each year the parent with whom the children are living will make the children available to spend time with the other parent:
i) If the birthday falls on a weekday for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5pm until 7pm; and
ii) If the birthday falls on a weekend for a period of at least four hours at a time to be agreed between the parents, but failing such agreement from 3pm to 7pm.
d) On Christmas Day each year the parent with whom the children are living will make the children available to spend time with the other parent for a period of at least four hours at a time to be agreed between the parents, but failing such agreement from 2pm until 6pm.
Property and Spouse Maintenance
6) Within 7 days of the date of these Orders, the husband vacate the property situate at Property W in the state of New South Wales [“the Property W”] and thereafter stay away from the Property W.
7) Until further Order the wife have the exclusive use, enjoyment and occupation of the Property W.
8) The Applicant pay to the Respondent for the maintenance of the Respondent, the sum of $948.00 per week, the first of such payments to be made on 20 April 2010 and weekly thereafter.
9)
Within 14 days of the date of these Orders, the husband provide to the wife the keys to the Mercedes Benz motor vehicle registration number [D] which is registered in the wife’s name.10)
The wife be at liberty to sell the Mercedes Benz motor vehicle registration number [D] upon condition that the wife provide to the husband, within 7 days of the date of the sale of that motor vehicle, documentary evidence of the funds received from the sale of that motor vehicle and the Wife shall thereafter be at liberty to use the proceeds of sale of the Mercedes Benz motor vehicle for the reasonable living expenses of her and the children.11) The Wife have liberty to amend this Response once she has obtained expert advice in relation to the needs of the children and once the husband has made full and frank disclosure in relation to this financial circumstances.
12)Within 7 days the Applicant Husband provide to the Respondent Wife the sum of $30,000.00 (thirty thousand dollars) and the wife be at liberty to use those funds to purchase a motor vehicle.
13)Contemporaneously with the payment in order 12, the Respondent Wife make available to the Applicant Husband the Mercedes Benz motor vehicle registration number [D].
14)If the Mercedes Benz motor vehicle registration number [D] is sold, the proceeds of sale of that motor vehicle shall be placed in the trust account of the solicitors acting for the Respondent Wife and shall not be disbursed otherwise than in accordance with a written agreement between the parties or an order of the court.
15) The Applicant Husband shall pay all outgoings in relation to the Mercedes Benz motor vehicle registration number [D] including but not limited to registration, insurance, ongoing maintenance and repairs.
The reasons that follow, proceed thus: (a) after setting out some quite brief factual background sufficient to provide context and relevant information in relation to the matters to be determined, I then (b) set out summarily, and only so far as is relevant to each of the current controversies, basic legal principles. In the course of that discussion I set out some matters which, I hesitate to hope, may assist the parties in their consideration of these proceedings and the litigious resolution of matters. Finally, I will deal with the determination of the matters currently before the Court, on an interim basis.
Issues of Advocacy: The current proceedings provide a convenient vehicle for an observation or two to be made in relation to the conduct of interim proceedings. I do not seek to single these proceedings out in this regard, because, increasingly the Court is faced with very large quantities of material, but which does not, necessarily, assist the Court in resolving the issues before it. The comments may also be taken to apply, perhaps in some modified form, to final hearings as well.
Since the commencement of proceedings on 1st March this year, excluding Notices to Inspect, there have been 14 documents filed. They include an Application and Amended Application, Response and Amended Response, and affidavits of very significant (if not prodigious) length.
For example, (excluding annexures) Mr Dees’s original affidavit in support runs to 92 paragraphs and 44 pages. Also excluding annexures, Ms Dees’s original affidavit, which deals essentially only with children’s issues, runs to 62 pages and 233 paragraphs. Helpfully, at the conclusion of that affidavit she informed the Court that a second affidavit would be filed that dealt with property orders.
That second affidavit was duly filed, but totalled a rather more modest 9 pages and 37 paragraphs.
Mr Dees filed an affidavit in support of the property orders he seeks, as well as by way of [partial] reply to Ms Dees’s earlier affidavits. Excluding annexures, this affidavit runs to 16 pages and 46 paragraphs.
Notwithstanding the regular pronouncements by the Full Court about interim proceedings and the inability (or extreme difficulty) of any Court to make any findings, particularly in the absence of independent evidence and or cross-examination,[1] with greater and greater frequency, this Court is asked to make interim orders on the basis of little more than an assault of competing, clanging affidavits of very significant length. To say the least, it is unhelpful.
[1] For example, see Goode v Goode (2007) 36 Fam LR 422 at [74] & [82].
By way of general observation, in family law litigation in particular, regrettably it is clear that fewer and fewer practitioners have regard, or pay sufficient attention, to the High Court’s observation (admittedly in a different context) that “the best advocacy is selective and economical.”[2] I take the liberty of assuming that their Honours did not intend their remarks to be confined to oral advocacy, but could and should be applied more generally to include all material placed before the Court.
[2] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [18] per Gleeson CJ, McHugh & Gummow JJ. For a recent, helpful discussion of the art of advocacy, see the collection of papers and essays in J.T. Gleeson SC & R.C.A. Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (Sydney: The Federation Press, 2008). In his typically detailed paper, Heydon J stated: “Those who wish to persuade seek to influence their hearers or readers to hold a particular opinion. Forensic advocacy is a form of persuasion directed to a particular audience. In one central meaning, forensic “rhetoric”, like other types of rhetoric, is the art of using language so as to persuade others.” Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, op. cit., p.217. Emphasis added. Also by way of general reference, see Justice John Phillips, “Practical Advocacy: The Peripatos,” (1997) 71 Australian Law Journal 346-347. Phillips J said (at p.347): “... we must constantly keep in mind what Aristotle dinned into his pupils – that the essence of the art of advocacy is persuasion. How often, in our assemblage of proofs, do we substitute volume for quality? How often, in our presentation of them, does tedium dominate attraction? How often do we, in our audience, assume interest rather than earn it?”
Of course, the Court must, and does, plough through the material placed before it. Emphasis must be placed on “ploughed.” Indeed, in the light of the admonitions from the Full Court about the virtual impossibility of a Court, in interim proceedings, to make any findings (and presumably even more so in courts like this one with extremely burdensome lists), one is very tempted to follow the recent “suggestion” from Keane CJ of the Federal Court. His Honour has suggested various steps to expedite the efficient conduct of commercial cases, such as putting limits on the number of documents filed and to be relied upon, and in relation to the limitation on issues to be addressed.[3] Respectfully, his Honour’s suggestions about circumscribing the material placed before the Court has, it seems to me, wider application, not least in interim proceedings.
[3] See, for example, the note “The Keane Solution” in (2010) 84 ALJ 208. This very short Note only deals with the limitation on documents.
In a not dissimilar vein, I have remarked in other cases to the following effect. I have no particular difficulty with parties narrating detailed histories of one kind or another. To the degree possible, such things not only give some background (sometimes rather jaundiced, sometimes not), but they also indicate, to some degree at least, something about the person telling their story. This is to say that, in seeking to tell the Court about the other party and all their faults, failures and other flaws and difficulties, the narrator often tells the Court more about themselves than their former spouse or partner. As well, in getting the history of the relationship ‘off their chest’, so to speak, it is hopefully somewhat cathartic – at least for them. It may be, perhaps optimistically, the beginning of some sort of therapeutic process by which they can start to move on from the trauma and other legacies of the broken relationship. I do not know if that is, or will be, the case here.
All of the above said, in these interim proceedings, the volume of material has not assisted the Court to any significant degree in the resolution of the issues. A more selective and judicious use and presentation of the trials and tribulations of the parties, and of the specific issues for determination, at this stage of the proceedings, would have been of greater benefit. Fortunately, I should stress, that the oral submissions were direct and contained to the issues that were before the Court.
B. Background information
The parties were married in 1996, and separated in December 2009. As I have noted, there are two children of the relationship, [X], who is aged 11, and [Y], who is aged 9.
[X] has Asperger’s Syndrome. The DSM-IV-TR describes this condition as a “disorder” characterised by:[4]
severe and sustained impairment of social interaction ... and the development of restricted, repetitive patterns of behaviour, interests, and activities. ... In contrast to Autistic Disorder, there are no clinically significant delays or deviance in language acquisition ... although more subtle aspects of social communication ... may be affected. ... Individuals with Asperger’s Disorder do not have clinically significant delays in cognitive development or in age-appropriate self-help skills, adaptive behaviour ... and curiosity about the environment in childhood.
[4] Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition: Text Revision) (Arlington, VA: American Psychiatric Association, 2000 [reprint 2007]) pp.80-84 at pp.80 & 81.
Later in these reasons I set out relevant evidence that deals with [X]’s adaptability and general handling of his parents’ separation.
[Y] has been diagnosed as having high anxiety, [perhaps] a degree of compulsive-obsessive issues, and [perhaps also] some depression. [Y] takes some medication in relation to her anxiety. There is some contest between her parents about [Y]’s need for, and or dosage of, her medication. This matter, too, must await examination at trial, notwithstanding it being canvassed at significant length in the affidavit material.[5]
[5] Somewhat rhetorically, I pose the question: ‘what can this Court do in contested interim proceedings about contests of this kind?’ Again, it is primarily a case of “she said – he said”, in relation to which the Court can make no findings at this juncture.
The Court does have the significant benefit of a very recent Report from an experienced Family Consultant (Ms D) dated 12th April 2010. At the interim hearing, after brief discussion with Counsel appearing for Mr Dees (Mr Gould), and the solicitor appearing for Ms Dees
(Ms Keogh), I admitted the Report into evidence.
In my view, the views of Ms D – who interviewed both parties as well as the children – should be given very significant weight, both because of her undoubted experience and expertise as a long-time Family Consultant, and because she is the expert who has most recently seen the children. I mention this because Ms Keogh sought to rely on the affidavit evidence of Professor T, who is an expert psychologist in Autism Spectrum Disorders.[6] Professor T’s Report in relation to [X] confirmed that the last time he had seen him was in November 2008. It may be that at the trial (assuming there is one) Professor T’s evidence will assume greater significance, assuming that he sees [X] again.
[6] Professor T’s affidavit was filed on 14th April 2010.
Moreover, in addition to Ms D’s much more recent observations of the children, [X] and [Y], Professor T’s comments are at a significant level of generality, as opposed to the individualised comments and observations of Ms D, as to make his three-paragraph report of relatively minimal value.
For current purposes, for the reasons already given (especially of how recently she has seen [X]), in my view, the expert evidence of Ms D should take precedence over, and be given much greater weight than, that of Professor T. I will come back to Ms D's Report presently.
On the medical records available to the Court, there is also no contest that Ms Dees has been dealing with depression for some years. She has taken, and continues to do so, various kinds of medication in relation to this condition. She also has required surgery of various kinds in recent years, and will likely require further surgery in the not too distant future.
Ms Dees moved out of the former matrimonial home in early February this year. She is formally trained, and has worked, as an [occupation omitted] albeit some time ago. Ms Dees deposed to not having worked since 2008 at which time she worked two (2) days per week. She also deposed that, otherwise throughout the marriage, she essentially did not work in paid employment and was the children’s primary carer.[7] Such a statement should not be taken to preclude, or to exclude, Mr Dees having not insignificant involvement with the children, in so far as a full-time [occupation omitted] is able to be involved with his children outside his full-time employment.[8] On such matters, and with a great many others at this stage of the proceedings, I can make no formal or detailed determination.
[7] Generally, see the detail in Ms Dees’s affidavit, filed 14th April 2010, at pars.33 ff.
[8] I note, but make no comment on, the following. It would appear not disputed that that firm [that now represents Mr Dees] had also acted for Mr & Ms Dees in at least one transaction when the parties were married. In correspondence before the Court, the current solicitors for Ms Dees have challenged the propriety of the Applicant’s solicitors continuing to act for him as being in breach of professional conduct rules regarding, among other things, a potential conflict of interest. There is no formal application for disqualification before the Court.
A few other matters may be noted summarily.
Since moving out of the former matrimonial home, Ms Dees has lived with her Mother, who lives in a “small three-bedroom residence.” When in her care in the current a week-about arrangement, Ms Dees and the children have shared a single bed-room in the maternal grandmother’s modest abode. Indeed, on Mr Dees’ evidence, these current living arrangements – unsurprisingly - are causing [Y] “ongoing stress.” This is attributed (he says) primarily to the Grandmother’s “grumpy and bossy” husband.[9] Presumably, such living arrangements are not aiding the stress levels of others, too, including Ms Dees. It cannot be aiding [X] either. Ms Dees also attests to having, historically, a somewhat strained relationship with her Mother. I need not detail the reasons for this; they are set out in her affidavit material.
[9] See Mr Dees’s affidavit, filed 16th April 2010, par.16.
Conversely, Mr Dees now resides in the former matrimonial home, and has the benefit of a seemingly extensive range of support from his extended family. He avers that this was the case during the relationship, and has continued, post separation.
There is a not insignificant issue in relation to the former matrimonial home.[10] Stated shortly, Mr Dees asserts that it was built by his Father, Mr D. It is said that in late 2001 or early 2002, Mr D proposed that the Applicant and his wife live in the residence, which is at Property W. Mr Dees contends that his Father suggested that (a) he buy the house, (b) but on condition that it remain “in the [wider] family”, and (c) when it was paid out – in the sum of $400,000 – the house would be transferred into his name.
[10] See Mr Dees’s affidavit, filed 16th April 2010, pars.29 ff. There is a supporting affidavit from Mr D (the paternal Grandfather), filed 16th April 2010.
Although not stated specifically, one might infer from the ‘statement of conditional sale/purchase’ by Mr D ((Senior)) that [perhaps] the Property W residence is impressed with some form of trust.[11] Whatever the final or formal characterisation, it remains a significant issue that will doubtless be the subject of detailed examination at the final hearing. This is also to say that I am concerned not to make property orders, on an interim basis certainly, which may unduly or adversely impact or otherwise affect possible third party interests. In this case, those interests clearly relate to the Applicant’s parents.
[11] See also Part “O” of Mr Dees’ Financial Statement, which lists other personal property, including shareholdings in various [family] companies, as well as interests in family discretionary trusts, from which, he says, there have been no distributions. At this stage, there seems to be no challenge to this assertion.
For the sake of completeness, I should also note that, for reasons detailed below which deal with the sole occupation of the former matrimonial home, I do not consider the sole occupation order, which is sought by each party, as being a factor in relation to “property orders.” According to authority (noted below), such orders are not “property orders.”
Mr Dees deposed that he had repaid approximately $341,000 to his Father in relation to the [now former] matrimonial home. He said that this sum was paid to his Father “[o]ver the following months.”[12] The precise period was not specified.
[12] Mr Dees’s affidavit, filed 16th April 2010, par.31.
Mr D deposed to the repayment, by his son, of the $341,000 referred to in the preceding paragraph taking place between 4th October 2001 and 19th July 2002. Precise dates and repayment amounts are set out in the affidavit (par.10). On the basis of the figures specified and the time frame involved, a Court may have little difficulty in finding that
Mr Dees had quite significant financial resources available to him, at least in 2001 and 2002. It would also appear to be the case that, by this time (in 2002), Mr Dees had resigned/retired from, but remained a consultant to, the [business omitted]. Unfortunately, the source of the funds used for the regime of significant repayment to which I have referred has not been as clearly identified as one might hope or expect.
As noted below, in his Financial Statement (filed 6th April 2010)
Mr Dees deposes to a current weekly income of $1,842.79. Ms Dees deposes to having a weekly income of $292.00, which she says comes from child support. She also says that the estimated child support from Mr Dees, [should] be in the order of $109 per week. She says that he has not paid this amount. In his material (e.g. affidavit filed 16th April 2010, pars.37 ff.), Mr Dees lists a range of matters in relation to which he says what he has paid (and consistently so) in relation to the children.
Mr D also deposed (at pars.9 & 11 of his affidavit) to his son and
Ms Dees being advanced during their relationship, as loans from
Mr D and Ms D ((Senior)), totalling $75,000 between December 2000 and April 2007. Presumably these funds will also be the subject of particular examination at the trial.
To date, there has been no application by the paternal grandparents to be joined as third-parties to the proceedings. To date also, none of the parties has sought to join the paternal grand-parents. I will return to this issue of joinder later in these reasons, particularly in the light of the very recent High Court decision of John Alexander's Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited.[13] The Rules of this Court are also singularly relevant to necessary parties to the proceedings.[14] I may observe here too that no submissions were made at the interim hearing about the aspect of “necessary parties” and or any formal notice there to, other than
Mr Gould observing that it appeared that Ms D (Senior) had not been given any formal notice of the proceedings.[15][13] [2010] HCA 19 (26 May 2010).
[14] See Part 11 of the Federal Magistrates Court Rules2001.
[15] In email correspondence, the solicitors for Mr Dees have confirmed the firm of solicitors who act for Mr & Ms D ((Senior)).
Turning to another significant, but final, factual matter. In her Report, Ms D notes a concern about the attendance of both parents at medical appointments, regular church services and other significant events and the adverse impact of this on the children.
In the absence of that issue (a) being formally before the Court for determination at the interim hearing, and (b) because there has not been argument before me from either party, at this juncture, I simply refer the parties to Ms D’s recommendations at pp.8 & 9 of her Report as to how such matters might best be resolved until a final hearing.
C. Principles and resolution of issues
Children’s matters
I adopt respectfully Brown J’s helpful summary of principle in Mazorski v Albright in relation to the statutory responsibilities of the Court in relation to children under Part VII of the Family Law Act1975 (“the Act”).[16] Her Honour’s oft-quoted “twin pillars” remarks, at [3] – [6] are set out below:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[16] (2007) 37 Fam LR 518. See also the fulsome discussion by differently constituted Full Courts in Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and Keach & Keach (2007) FLC ¶93-353 at [24] ff.
In my view, it is also important to record two other matters. First, Brown J also considered “the concept of a meaningful relationship” at some length in Mazorski v Albright, to which I have already referred. Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and respectfully adopt her Honour’s remarks.[17] Brown J said:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[17] Brown J’s remarks were recently endorsed by the Full Court in McCall v Clark (2009) 41 Fam LR 483 at [121].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The second matter to note here is taken from Ms D's Report. At par.17 of that Report, she said:
There is a strong affectionate bond, and sound attached relationships between the children and each of their parents, which should be supported and protected. The children made very positive comments about their experience of both their parents’ homes, and each parent has personal strengths to offer their children. At the time of the conference the equal time arrangement had been in place for a very short period, and the family consultant is aware that both parents are seeking predominant care, but the children appear to be benefitting from spending time in both households. In regards to [X], at this very early stage, he appears not only to be managing but enjoying the benefits provided by spending substantial time in each household. At the conference the parents indicated that [X] has adjusted quite well to the parental separation.
Ms D also noted that it may assist, “at a later stage”, to have some specialist advice in relation to any application for [X] to live in one primary residence.
For the reasons already indicated, I prefer the much more recent evidence of Ms D to that of Professor T, for the purposes of the interim application before the Court. Ms D’s evidence also assumes greater significance in the light of Brown J’s discussion of what constitutes a “meaningful relationship.”
In the same paragraph of her Report (17), Ms D also noted the importance of “appropriate routine and management.” Although stated specifically in relation to [X], in my view, this basic and common-sense observation has wider application, and should inform the approach of the Court, and the parents, in relation to both children.
In the light of the evidence before the Court, such as it is in interim proceedings, but particularly in the light of Ms D's Report, I note the following in the light of the prescribed “statutory pathway”, to which reference has been given earlier in these reasons.
First, because both parties seek it, and because there is no reason not to accede to it, an order will be made for equal shared parental responsibility.
Secondly, in accordance with (a) the objects and principles of Part VII, helpfully summarised by Brown J in Mazorski v Albright, to which I have also referred, and (b) the primary considerations in s.60CC(2), I next consider, to the degree possible, the additional considerations in s.60CC(3). Unless otherwise required, or specified, it may be taken that I follow the order of the sub-paragraphs in s.60CC(3).
Although there are no formal views of the children before the Court, there are, nonetheless, observations and comments attributed to them in Ms D's Report. Accepting that, to speak colloquially, it is somewhat early days, those observations and comments more than suggest that the children are content in the current shared-care arrangement.
It is also clear from the Report that the children have a good relationship with both parents.
Both parents seek orders that circumscribe the children’s time with the other parent. One might infer from this that there is no willingness or ability of either parent to facilitate and encourage a close and continuing relationship between the children and the other parent. However, in my view, that would not be an accurate inference. On the evidence before the Court in Ms D's Report, precisely because both children appear to be doing well in the shared care arrangement (albeit still early days), the better view would be that the parents do have the capacity to put the children’s interests before their own.[18]
[18] These comments are also relevant to sub-paragraph (i) and s.60CC(4).
Because there is to be no change in the children’s living arrangements, sub-paragraphs (d) and (e) have no work to do here at this stage of the proceedings.
There is no suggestion supported by any evidence that the children are neglected or otherwise that their needs are not met. In fact, the situation appears to be to the contrary, namely, that in some respects too close attention is given, for example, to [Y]’s medication. In any event, in the current state of the evidence and at this stage of the proceedings, in my view it would be premature or unwise to make too specific a determination in relation to the matters comprehended by sub-paragraph (f).
For the same general reasons, the same comment applies to sub-paragraph (g).[19]
[19] The remaining sub-paragraphs of s.60CC(3) have no application in this matter, save that sub-paragraph (l), implicitly, is satisfied by virtue of the orders I make.
For the above reasons, and particularly in the light of the Report of
Ms D, in my view, it is in the children’s best interests that the shared care arrangement between the parents should continue.
That shared care arrangement satisfies the precepts in s.65DAA both in relation to ‘the best interests of the children’, and in relation to an order that is reasonably practicable in the circumstances. Given that both parents live in [W], and that the shared care/equal time arrangement has been operating thus far, s.65DAA(1)(b), in my view, is readily satisfied.[20] Put another way, there is no evidence before the Court that would militate against making such an order, particularly on the ground of whether it is, or is not, “reasonably practicable.”
[20] Cf. the High Court’s observations in MRR v GR (2010) 263 ALR 368 at pp.371 & 372, [13] & [15].
Various ancillary orders, dealing with Christmas, birthdays, and such things, are set out in the orders. There were no formal submissions in relation to such matters. Doing the best one can in such circumstances, orders have been made which, in my view, accord with the best interests of the children in the light of the available evidence – such as it is at this time.
Finally, as indicated at the interim hearing, having regard to the ages of the children, and the issues before the Court, an independent children’s lawyer should be appointed.
Sole occupation of the former matrimonial home
In Mullane v Mullane, the High Court distinguished between “an interest in property [that] is a right of a proprietary nature, ... [and] a mere personal right.” The Court continued: “An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property....”[21]
[21] Mullane v Mullane (1983) 158 CLR 436 at p.445.
In Mullane, the High Court also noted that, in effect, a sole occupation order could be made either under s.114 of the Act (in the context of injunctive relief), or under s.74 (in the context of spousal maintenance).[22]
[22] See Mullane, 158 CLR at p.444.
In the circumstances of this case, among other things, given that
Ms Dees has moved out of the former matrimonial home, there appears to be no issue that would require any injunctive orders. It follows, therefore, that relief in relation to sole occupancy, as a matter of form, should be in the context of s.74 of the Act rather than under s.114.
Standard cases that deal with sole occupation, albeit in sometimes different or differing statutory contexts, include Davis & Davis,[23] In the Marriage of Gillie,[24] In the Marriage of Fedele,[25] and most recently the decision of Campbell J in the Equity Division of the Supreme Court of New South Wales in Nguyen v Scheiff.[26]
[23] (1976) 1 Fam LR 11,522; (1976) FLC ¶90-062.
[24] (1978) 4 Fam LR 127.
[25] (1986) 10 Fam LR 1069.
[26] (2002) 29 Fam LR 177.
The cases to which I have just referred, in slightly differing ways, accent, among other things, that a court’s consideration of a sole occupancy order may take into account a wide variety of matters, and that what has been detailed in previous cases may, indeed should, be treated, in any event, more as “guidelines” rather than fixed criteria. Thus, among the relevant considerations in this matter should be the means and needs of the parties, the needs of the children of the relationship, general matters of “convenience” (broadly defined), and the converse aspect of “hardship.”
On the facts of the present case, as outlined above, and notwithstanding my strong temptation to order that the children live at the former matrimonial home [thus giving them genuine stability of residence] and the parents live week-about in that residence,[27] I will make an order, on an interim basis, for Ms Dees to have sole occupancy of the former matrimonial home.
[27] I made this suggestion to the parties, via email from my Chambers after the hearing. I did so for the sake of the children having a secure, rather than a shifting, base. However, both parties opposed such a proposal. I remain not completely convinced that such an arrangement could not work. Whatever the level of discord between the parties, appropriate orders could have been crafted to ensure that the opportunities for their paths to cross would have been extremely limited. Other appropriate protections could readily have been also put in place.
I make this order for the following brief reasons. First, if Ms Dees was to have sole occupation of the residence, it would almost certainly mean a reduction, if not a general dismissal otherwise of her application for spousal maintenance. Such a course would be to
Mr Dees’ advantage. Indeed, as noted below, notwithstanding his significantly greater income compared to Ms Dees, nonetheless, in the light of him paying a range of expenses already, his capacity to pay spousal maintenance is not infinite. If that statement is correct, the corollary must follow: that a sole occupation order in Mr Dees’ favour must, almost inevitably, lead to a spousal maintenance order in
Ms Dees’s favour. On the facts of the case, Ms Dees cannot have both a sole occupation order and spousal maintenance; Mr Dees simply cannot afford it. As well, even if Mr Dees was granted sole occupation of the former marital residence, his capacity to pay spousal maintenance remains heavily circumscribed.[28]
[28] I might also note that no final orders are sought, at the present time, by Ms Dees in relation to the former marital residence. In my view, that is of no consequence in relation to the orders made in the current, interim applications before the Court.
It seemed almost to be conceded (subject to certain qualifications from Mr Gould[29]), and indeed her Financial Statement makes plain, that
Ms Dees’s income is very modest. In her current circumstances, it seems to be reasonably clear that the modesty of her income is (and would be) an impediment to the rental of an appropriately-sized property that will appropriately accommodate her and the children, at least until after there is final resolution of the property proceedings between the parties.
[29] See Transcript (19th April 2010) p.18.
I also readily recognise the legal interest in the property of Mr and
Ms D (Senior). However, as I have noted, a sole occupation order effects no alteration of property interests; it is a maintenance order, not a property order under s.79 of the Act. It provides nothing more than a licence to use the premises.
Moreover, although it is clear that Mr D (Senior) (at least) is acutely aware of the current proceedings (as noted above), he has not intervened, nor has he (or Ms D (Senior)) been joined as a party. For more abundant caution, Mr and Ms D (Senior) should be given formal notice of the proceedings by the solicitors for the Applicant.[30]
[30] In the absence of them seeking to intervene, or being joined as a party, or explaining why they should not be joined, pursuant to Rule 11.01(2) of the Federal Magistrates Court Rules 2001, Mr D (Senior) (and/or Ms D (Senior)) should be joined as a “necessary party” to the proceedings. I will not make any such orders until (a) notice has been given to them, and (b) any submissions are made by the current parties in relation to joinder.
For the sake of completeness, in the light of the “notice” referred to in the previous paragraph, I note the following from the recent High Court case (to which I have previously referred) of John Alexander's Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited.
In that case, the High Court observed:
[126] Walker Corporation submitted that before deciding to declare the constructive trust the Court of Appeal ought to have borne in mind the impact that that course would have on Walker Corporation's unregistered mortgage, of which the Club had notice, and of which the Court of Appeal was or ought to have been aware. The submission was correct, for reasons given in the line of cases associated with Giumelli v Giumelli.[31]
[129] One point made in the Giumelli v Giumelli line of cases is that care must be taken to avoid granting equitable relief which goes beyond the necessities of the case. Another point in those cases is that third party interests must be borne in mind in deciding whether a constructive trust should be granted. That line of cases does not permit a constructive trust to be declared in a manner injurious to third parties merely because the plaintiff has no other useful remedy against a defendant.
[131] Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.
[132] In News Ltd v Australian Rugby Football League Ltd the Full Federal Court (Lockhart, von Doussa and Sackville JJ) said:[32]
"Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest."
[31] [1999] HCA 10; (1999) 196 CLR 101 at 113-114 [10] and 125 [49]-[50]; [1999] HCA 10; Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 at 584-585 [40]- [43]; [1998] HCA 59; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 172 [200]; [2007] HCA 22. See also Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 623; [1985] HCA 78, where Deane J would only have imposed a constructive trust from the date when the Court's reasons for judgment were published, "[l]est the legitimate claims of third parties be adversely affected".
[32] (1996) 64 FCR 410 at 524-525. See also [139] – [140] of the High Court’s judgment in John Alexander for further comment on joinder of parties and appropriate practice.
In the light of the High Court’s clear guidance, in the circumstances of this case, in my view it is necessary that formal notice of these proceedings be given to Mr and Ms D (Senior). Upon notice being given by the Applicant’s solicitors, it will be for his parents to decide, in the light of their own legal advice, whether to seek to be joined as a party to the proceedings. It may be of course that they choose simply to adopt a ‘wait and see approach.’ Such a course, as with all others, is a matter for them.
Three further matters, related to the sole occupation order, should be noted.
First, with reasonable notice, Mr Dees should be able to access any specified item currently located at the former marital residence (notified in writing to Ms Dees), either of personal effects or furniture, and also with relevant notice, to remove them from the premises, provided that the items proposed to be removed are not necessary to the care and welfare of the children, or to the general welfare of
Ms Dees while she is living at the residence.
Secondly, Ms Dees should be restrained from taking any items from the residence identified by Mr Dees in writing within 21 days of the date of these orders without the prior written consent of Mr Dees. An order will be made to this effect.
Thirdly, there is no evidence before the Court that either party has
re-partnered. In recent submissions, however, there is a contention (on behalf of Mr Dees) that Ms Dees has re-partnered – to some degree at least.[33] This is to say that she is now in a new relationship. Its future course obviously remains to be seen. In the absence of evidence, I do not see that I should make any orders, but an observation (at least) should be made.
[33] This new relationship has been confirmed in correspondence from Ms Dees’s solicitors to the Court. It has also been confirmed that it is not a “live with” relationship.
In the circumstances of the case, I would be very concerned if any new partner of Ms Dees took up residence or regular habitation in the former matrimonial home prior to the resolution of the issues in dispute in these proceedings. This concern would be further heightened while-ever the children were living with their Mother. It seems to me that, although I cannot, and should not, make any orders as to who should and who should not “visit” the residence during the term of the sole occupancy order, shared occupation of the home with Ms Dees would not be in the children’s best interests. Such an eventuality (and the consequences there-from) would almost certainly be a consideration at the final hearing under s.60CC(4A). In any event, the order is for “sole” occupancy (with the children); not for sole/shared occupancy.
In short, a sole occupation order will be made in favour of Ms Dees. It will apply until the final hearing, or until further order of the Court.
Spousal maintenance
Section 72 of the Act prescribes the three bases upon which an order for maintenance can be made. They are (a) by reason of having the care and control of a child of the marriage who is less than 18 years old; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; and (c) for any adequate reason, “having regard to any relevant factor in s.75(2).”
Section 74 relevantly provides that the Court is able to make such an order “as it considers proper for the provision of maintenance.” The authorities confirm that an order is not “proper” if it is either insufficient or excessive in the circumstances. The authorities also confirm that the relevant test is whether the applicant, by reason of their earning capacity, capital or other resources/sources of income, can look after themselves.[34]
[34] See, for example, Eliades & Eliades (1981) FLC ¶91-022; In the Marriage of Bevan (1994) 19 Fam LR 35; OS v PS (2008) 38 Fam LR 467; Duke & Duke [2009] FamCAFC 174.
The same authorities to which I have referred also confirm that, even if Ms Dees establishes that it is proper to make such an order, the Court is also required to make a finding as to whether or not Mr Dees has the capacity to pay.
Put simply, on the best analysis of the figures before the Court, which is to say, an analysis that is most favourable to Ms Dees, Ms Keogh (for Ms Dees) noted that, on the basis of a shared care arrangement with the children, there would be an excess in Mr Dees’s income of $317.79 per week. Quite fairly, she also conceded that if Mr Dees was required to rent, “then he would not have an excess of income.”[35] This reflects a similar submission from Counsel for Mr Dees, Mr Gould.[36]
[35] Transcript (19th April 2010) p.28.
[36] Transcript (19th April 2010) p.18.
On the basis that, in my view, Ms Dees has made out a case for sole occupation, on the evidence before the Court, in circumstances where Mr Dees will be required to rent, in accordance with submissions on behalf of both parties, he would have no capacity to pay anything for spousal maintenance. Accordingly, there cannot be an order in this regard.
D. Conclusion
Two final matters only need to be noted. First, it was essentially agreed that Ms Dees will return a Mercedes vehicle to Mr Dees, and in return, Mr Dees will pay to her $30,000, which is to be used to purchase a vehicle for her use.[37] At the interim hearing, Mr Gould submitted that this payment should be treated as part of the ultimate property settlement; Ms Keogh submitted that it should be treated as spousal maintenance. For my part, I will defer the categorisation of the payment until the final hearing.[38]
[37] There was no formal evidence as to the source of the funds from which Mr Dees will make this payment. Presumably they will come from borrowings – either commercial or familial.
[38] Generally, see the discussion at Transcript (19th April 2010) pp.15-19.
The second matter to note concerns the return of some personal effects that were inadvertently taken by Ms Dees when she left the former matrimonial home. Those effects are part of other personal property, which is currently in storage. Those effects are to be returned to
Mr Dees within 28 days of her resumed occupation of the former matrimonial home.
Orders in accordance with the above determinations will be made.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 8 July 2010
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