DEGENAAR & DEGENAAR
[2020] FCCA 451
•25 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEGENAAR & DEGENAAR | [2020] FCCA 451 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – multiple risks – prescription medication – mental health – family violence – risk of harm to child – restraints on parents – property – interim costs – parties’ litigation costs – whether husband in stronger financial position than wife – parallel court proceedings initiated despite restraint on husband – Hogan order – interim property distribution – parties’ contributions – where mother bears much of the financial responsibility for child – property unilaterally placed on sale by husband – parallel court proceeding costs order outstanding – sale of property. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 79, 117 |
| Cases cited: Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225 |
| Applicant: | MR DEGENAAR |
| Respondent: | MS DEGENAAR |
| File Number: | WOC 83 of 2019 |
| Judgment of: | Judge M Neville |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Mitchell of Hansons Lawyers |
| Counsel for the Respondent: | Mr Havenstein |
| Solicitors for the Respondent: | Kells The Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Mr Amos of Legal Aid NSW Wollongong |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Orders 8 to 14 of the interim orders dated 18 March 2019 are discharged.
The child, X (born in 2016) live with the mother.
The child spend time with the father as follows:
(a)Stage 1:
for a period of eight (8) weeks, with such time commencing from Sunday 23 February 2020 as follows:
(i) each Sunday from 10:30am until 2:30pm;
(ii) each Tuesday from 12:00noon until 4:00pm.
(b)Stage 2:
following the conclusion of Order 3.1 and for a period of eight (8) weeks, with such time commencing from Sunday 19 April 2020 as follows:
(i)each Sunday, except for Sunday 10 May 2020, from 10:30am until 4:30pm;
(ii) on Saturday 9 May 2020 from 10:30am until 4:00pm;
(iii) each Tuesday from 12:00noon until 4:00pm.
(c)Stage 3:
following the conclusion of Order 3.2 and pending further order, with such time commencing from Sunday 14 June 2020 as follows:
(i)each Sunday from 9:00am until 5:00pm;
(ii)each Tuesday from 12:00noon until 4:00pm;
(iii)on Christmas Day from 1:00pm until 5:00pm;
(iv)on child’s birthday from 1:00pm until 5:00pm.
(v)on the Saturday prior to Mother’s Day from 9:00am until 5:00pm.
The father’s time with the child is suspended as follows:
(a)on Mother’s Day from 9:00am until 5:00pm;
(b)on Christmas Day from 9:00am until 1:00pm;
(c)on child’s birthday from 9:00am until 1:00pm.
For the purposes of changeover where changeover is due to commence at the commencement of S Sports Centre, City T, changeover shall occur at U School, (D Street, City T), and at all other times changeover is to occur at E Club, City T.
For the purposes of all changeover pursuant to Order 5:
(a)the father and the mother are restrained by injunction from approaching each other during changeover;
(b)the father and the mother will refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells;
(c)each parent will ensure that changeover is facilitated quickly and takes no longer than 5 minutes;
(d)the parents will use their best endeavours to ensure that they are on time for changeover however, in the event that either parent is running more than 10 minutes late for changeover due to traffic or other unforeseen difficulties, they are to send a text/SMS message to the other parent advising them that they are running late and indicating an estimated time of arrival.
Each parent will keep each other informed of their current residential address, telephone contact numbers and e-mail address and will notify the other parent of any change to those details within 48 hours of such change occurring.
Each party be and is hereby restrained from consuming alcohol to excess or non-prescribed medication when the child is in, and for 24 hours prior to, the child coming into their care.
Each party be restrained from communicating with the other party except in respect of matters concerning the care, welfare and development of the child.
For the purpose of communicating between the parents in relation to parenting matters only, the parents shall communicate by sending SMS message except in the case of a parenting emergency where the parents shall communicate by the use of a phone call.
The parents will keep each other informed as soon as is reasonably practicable of:-
(a)Any significant medical problems, illness or injury suffered by the child whilst in their respective care;
(b)Full particulars of any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by the child while in their respective care;
(c)Any medication that has been prescribed for the child while in their respective care;
(d)Any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that the child is due to attend; and
(e)Any occasion that the child is due to be hospitalised while in their respective care.
The parents agree to treat each other with civility and respect at all times and throughout all forms of communication and during changeover.
Both parents are restrained from making critical, denigrating, demeaning or derogatory remarks about the other parent or members of their immediate family in the presence or hearing of the child, or via social media, or permitting any other person to do so.
Each parent is permitted to liaise directly with any doctor, hospital or other medical practitioners treating the child to obtain information about the physical and/or mental health of the child and the progress of any treatment the child may be receiving and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
Each parent may liaise directly with each of the child’s school principals or teachers to obtain any information about the child’s progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from the school and these Orders will be sufficient authority to authorise the release of such information, to each of the parents.
The father be and is hereby restrained from transporting X in a motor vehicle.
The father be and is hereby restrained from attending the mother’s residence.
The father be and is hereby restrained from collecting X from preschool or her sports club.
I DIRECT that both the mother and the father obtain a mental health assessment undertaken by a person and in terms which are to be agreed between the parties.
The parties be granted leave to relist in the event they are unable to meet the cost of such assessment or are unable to settle terms of the assessment.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
The parties forthwith do all acts and things and sign all necessary documents to effect the sale of the property at B Street, C Town in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier ... and for that purpose the following shall apply:
(a)The property shall remain listed for sale by private treaty with the real estate agent as has already been selected by the husband;
(b)The list price of the property shall be such amount as agreed between the parties and failing agreement within 14 days the list price will be as nominated by the real estate agent;
(c)The sale price of the property shall be as is agreed between the parties and failing agreement any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price;
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale, including, making the key readily available, liaising with the leasing agent and current tenants to allow inspection of the property at all times reasonably requested by the agent and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)Upon agreement being reached for sale of the property the parties shall give instructions to Kells to prepare a contract and the parties shall execute the contract for sale including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(f)The contract shall provide for completion within 42 days after the date of the contract;
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)In payment to the Wife in the sum of $55,000.00 being interim property distribution;
(ii)In payment to the Wife in the sum of $45,000.00 by way of interim costs;
(iii)In payment to the Husband in the sum of $55,000.00 being interim property distribution;
(iv)In payment to the Wife the further sum of $7,000.00 on behalf of the Husband to satisfy the Judgment Order made against him in the Local Court of New South Wales made on 12 December 2019.
(v)To discharge the mortgage secured against the property owed to ANZ Banking Group Ltd;
(vi)Payment of the agent's commission and advertising and other expenses, if any, payable on the sale;
(vii)Payment of the legal costs and outlays relating to the sale;
(viii)Balance to be paid into the trust account of Kells in the joint names of the parties with the parties within 14 days of settlement to authorise and direct Kells to invest the funds in a controlled monies account in the joint names of the parties, pending finalisation of property issues.
In the event the property is not sold by private treaty pursuant to Order 22 on or before four (4) months from the date of this Order, then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 22(a) (hereinafter "the auctioneer") for sale by auction within a further two (2) months;
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction;
(c)The reserve price of the property shall be such amount as agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
(d)The Husband shall pay to the auctioneer any sums requested for advertising or auction expenses and shall be reimbursed from the proceeds of sale;
(e)The parties shall give such instructions as are necessary to Kells to prepare a contract for sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
(f)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction, including making the key readily available, liaising with the leasing agent and current tenants to allow inspection of the property at all times reasonably requested by the auctioneer and ensuring the property is clean, neat and in good order at the time of inspection and on the day of auction;
(g)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the property shall be such amount as agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 95% of the reserve price shall be accepted by the parties;
(h)The parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached for the purpose of reaching agreement under Order 23(g);
(i)Upon agreement being reached for the sale of the property, that the proceeds of sale be distributed in accordance with Order 22(g) after the Husband is reimbursed for any costs paid by him in accordance with Order 23(d).
In the event the property is not sold at the auction pursuant to Order 23 or within 14 days after the date of the auction by further negotiations, then the parties shall cause a further auction of the property to be held within two (2) months after the date of the first auction and for that purpose the provisions of Order 25 shall apply.
Pending completion of Orders 22, 23, 24 the Husband shall continue to pay, as they fall due, all regular instalments in respect of the mortgage, statutory rates and charges, insurances and outgoings including water rates, council rates and the like in respect of the property and the Husband hereby indemnify and keep indemnified the Wife in respect of such payments and any arrears shall be paid from the Husband's share of the sale proceeds referred to in Order 22(g)(ii).
The Wife shall be and is hereby appointed as trustee for sale of the property, to sell the property in accordance with the above Orders on behalf of the parties jointly.
The Wife through her lawyers to notify husband within 14 days of any proposed sale of property of the price for which the property is to be sold in the execution of her duties as trustee for the sale of the property.
The matter be adjourned to 23 July 2020 at 9.30am for mention in Wollongong.
THE COURT NOTES THAT:
The purpose of the mention is to give consideration to the allocation of final hearing dates subject to the parties being in a position to inform the court as to what the issues in dispute are going to be on a final basis, as well as the evidence to be relied upon by each of the parties at final hearing.
IT IS NOTED that publication of this judgment under the pseudonym is Degenaar & Degenaar approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 83 of 2019
| MR DEGENAAR |
Applicant
And
| MS DEGENAAR |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript.
These are interim proceedings between Mr Degenaar and Ms Degenaar. They are in dispute about their property and about parenting arrangements for their child, X, who is presently aged four years. The proceedings were listed for interim hearing in Wollongong on 18 February 2020.
On an interim basis, the questions for the court were:
a)Whether X’s time with the father should progress to overnight time;
b)The location for changeovers;
c)Whether there should be any order relating to parental responsibility and, if so, what order ought be made;
d)Whether there should be any restraints on the behaviour of either parent;
e)Whether an interim order for legal costs should be made in favour of the mother upon sale of the former family home; and
f)Whether there should be an interim property distribution upon the sale of the former family home.
Background
The parties commenced their relationship in late 2013. They moved in together in 2014. They were married in 2015 and X was born in 2016. During the relationship, the parties lived together in a property at C Town which the father had purchased prior to the marriage.
The relationship between Mr and Ms Degenaar appears to have been quite a conflictual one. The affidavit evidence and the Child Dispute Conference memorandum are replete with instances of alleged physical and verbal disputes between the parties. Police were called to attend upon the parties on at least two occasions.
Mr Degenaar contends that, in December of 2016, the parties separated on a final basis. Ms Degenaar contends that the parties separated on a final basis in January 2017, when she moved to her parents’ home in Suburb J with X.
It is difficult to ascertain with precision whether the parties shared accommodation again after December 2016 or January 2017. In his affidavit material, the father contends that the parties lived separately under one roof between December 2017 and March 2018, whereas the mother contends that following separation she moved in with her parents temporarily, she then secured rental accommodation for a period of six months, but due to the cost of living and her limited income she moved back in with her parents where she remained until October 2019. In October 2019 her parents decided to sell their home and the mother secured rental accommodation in Suburb K.
In any event, following separation, it appears that in or around May 2018 the parties attended mediation without success.
In October 2018 the mother was at the father’s home facilitating overnight time. A dispute arose over a cup of tea. The father contends it escalated to a physical altercation and New South Wales Police were called. The police initiated an apprehended domestic violence order against the mother and she was charged in relation to the incident. The mother defended the charge and the apprehended domestic violence order, and in February 2019 those proceedings were dismissed.
On 30 January 2019 the father commenced proceedings in this court. The matter was listed for mention on 18 March 2019 and interim orders were made by consent to the following effect:
a)That X live with the mother;
b)That she spend time with the father for two occasions on a supervised basis and thereafter from 11 am until 2 pm each Friday, unsupervised, with changeover occurring at Suburb L McDonald’s;
c)That the mother facilitate FaceTime communication between X and the father each Tuesday between 12 and 12.30 pm;
d)That the father be restrained from attending the mother’s home, X’s preschool and sports club, and from otherwise attempting to communicate with X other than as provided for by the orders;
e)Orders in relation to financial disclosure;
f)A restraint on the father initiating legal proceedings to secure the return of a Motor Vehicle 1; and
g)That the parties attend a conciliation conference on 1 August 2019.
The matter was next before the court on 19 June 2019. It was relisted at the request of the parties, given that there were contentions that there was outstanding financial disclosure by the father. Two days prior to that listing, on 17 June 2019, the mother filed an application in a case seeking orders in relation to costs and property. On 18 June 2019, the father filed a response to the application in a case.
When the matter was listed on 19 June 2019, directions were made in relation to both property and parenting aspects of the dispute. Orders were made for financial disclosure, including orders in relation to the father’s estimated value of the B Street, C Town property, his estimated value of the Motor Vehicle 1, the provision of income tax returns, provision of bank statements, the provision of other regular financial disclosure information and disclosure of the rental income derived from the letting out of the B Street, C Town property on the Stayz website. An order was also made on that day appointing an Independent Children’s Lawyer and the parties were referred to a Child Dispute Conference to occur on 23 September 2019.
In July 2019 the mother filed subpoenas to the ANZ Bank, the Commonwealth Bank of Australia and the National Australia Bank. The father filed notices of objection to each of those subpoenas. Those objections were heard on 23 July 2019. All of the objections were dismissed and the mother’s costs were reserved.
On 1 August 2019 the father failed to appear at the conciliation conference, apparently having misdiarised it. The court record reflects that attempts to contact him made by the Registrar on that day were unsuccessful.
The father had, up until that point, apparently been living in the former family home at B Street, C Town. In August 2019 he relocated to the City T area and changeovers started to occur at the E Club in City T .
Between July and September 2019 the mother became concerned about the father’s medication regime. After making inquiries and forming the view that she had not received a satisfactory response to her inquiries, she ceased time between X and the father. This was from late September 2019 until 1 November 2019.
On 27 September 2019, the mother filed a further application in a case. On 20 September and 30 September 2019 the father filed contravention applications. On 2 October 2019, he filed an amended initiating application. On 4 October 2019, he filed a further contravention application. On 8 October 2019, he filed a response to the mother’s application in a case. On 25 October 2019 he filed a further contravention application.
As noted, in November of 2019, X’s time with her father resumed for daytime periods only. In January 2020, the parties changed the location of changeover to the driveway of the father’s unit complex.
On 4 February 2020, the mother amended her application in a case. By her amended application, she no longer pressed that X’s time with the father be supervised and she also sought orders in relation to property. On 12 February 2020, the father filed a response to the mother’s amended application in a case together with notices of discontinuance of the four contravention applications he had filed, and a Notice of Discontinuance of a further objection to a subpoena issued at the request of the mother to Town M Medical Centre.
At some time in late January or early February 2020, the father’s legal representatives, newly appointed, informed the mother’s legal representatives that the father had listed the B Street, C Town property for sale. On 18 February 2020, the matter was listed for interim hearing.
The Law
As the present matter involves both parenting and property orders, I detail the law in relation to each, respectively.
In relation to parenting proceedings on an interim basis, it is clear that an interim hearing is an abridged process with a curtailed scope of inquiry. As was observed in Goode & Goode [2006] FamCA 1346, where the court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. The Full Court observed that the court must regard the best interests of the child as paramount in deciding what interim parenting order to make.
In Goode & Goode, the Full Court identified the importance of following the legislative pathway at an interim stage, notwithstanding that the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. The approach to be taken at an interim stage is to identify the parties’ competing proposals, the issues in dispute, any agreed or uncontested facts, and to then consider the matters in section 60CC that are relevant – if possible making findings about them. It is not mandatory to make an order as to parenting on an interim basis. Where an order is to be considered on an interim basis, section 61DA provides that the court is to apply a presumption that equal shared parental responsibility is in the child’s best interests unless the court considers that it would not be appropriate in the circumstances for it to apply when making that order.
In the event that the court determines that the presumption does not apply, the court then determines what order, if any, should be made as to parental responsibility by reference to the section 60CC factors and, subject to any order made as to parental responsibility, the court needs to consider arrangements for live with and time between the child and each of the child’s parents in accordance with the legislative pathway.
Turning now to the applicable legal principles on the property aspect of the dispute, as noted, the mother seeks an interim order for costs and an interim order for property distribution. At an interim stage, the court may make an order for the property distribution for the purpose of payment of legal costs. Such orders are referred to as Hogan orders. In Strahan & Strahan [2009] FamCAFC 166, the Full Court confirmed that it is necessary to identify the source of power it relied upon for the making of a Hogan order.
In the present case, the mother relies upon section 117(2) of the Family Law Act as the relevant source of power. Section 117(2) requires the court to consider a number of matters in deciding whether or not to make a costs order and, if a costs order is to be made, what order ought be made. Relevantly for present purposes, they are the matters contained at section 117(2A).
In the matter of Peters & Peters, 9 March 1994, (unreported), Kay J considered a number of cases in which orders such as Hogan orders were granted. In that decision his Honour considered that the applicant should be able to demonstrate that he or she does not have the ability to meet the fees necessary to litigate; because of the lack of funds, the applicant cannot adequately be represented at trial; that the applicant should be able to point to the funds which would be available to satisfy the claim for costs; that reference should be made to the criteria set out in section 117(2A); and there ought to be established a fairly strong prima facie case, or at least a normal relationship of dependent and provider.
In the matter of Zschokke & Zschokke [1996] FamCA 79, the court noted that in considering the matters to which it should have regard in exercising its discretion, it was said:
If the order is to be made under section 117(2), then the matters in section 117(2A) must be addressed. It may then be necessary for the court, in deciding whether to make an interim order, to consider whether, in the circumstances of the case, it would be possible to take into account in the final property proceedings any sum that may be payable under the interim order.
In Zschokke, the Full Court identified three criteria for an order to be made:
a)A position of financial strength by the respondent;
b)The respondent’s capacity to meet his or her own litigation expenses; and
c)An inability by the applicant to meet his or her own litigation expenses.
In Paris King Investments v Rayhill [2006] NSWSC 578, the Supreme Court of New South Wales also identified the following matters as being relevant considerations:
a)That the applicant has an arguable case for substantive relief which deserves to be heard;
b)Evidence of the applicant’s likely costs of the litigation;
c)It is not an essential precondition that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis;
d)An order may be made for litigation expenses at a rate that appears reasonable in all the circumstances;
e)An order can be made in respect of costs incurred in the past as well as costs likely to be incurred in future; and
f)Whether the order is to be in respect of costs already incurred or costs to be incurred, and whether the applicant’s lawyers ..... to act in the proceedings in the absence of provision for costs to be incurred may be relevant to the discretion to make an order and its quantum; and
g)Any such order should be framed to protect the parties from any risk of injunction arising from the manner in which the funds are to be expended.
In relation to the principles applicable in interim property distribution applications, in Strahan the Full Court set out a two-step process for the making of an order for interim property distribution: firstly, to determine whether it is appropriate to exercise the court’s power to make an interim property distribution, noting that the overarching consideration is the interests of justice; and, secondly, if it is considered appropriate to make an order for interim property distribution, to assess the section 79 factors noting that, at an interim stage, the exercise will be imprecise and so a conservative approach ought be taken. This is important to ensure that any order that is made on an interim basis does not prejudice or otherwise defeat an order that the court may make on a final basis in relation to distribution of the property of the relationship. The applicant does not need to establish that there are compelling circumstances for the exercise of the power but, rather, whether it is appropriate in all the circumstances to make an order for interim property distribution.
The Parties’ Competing Proposals
Turning then to the parenting aspect of the dispute and looking at the competing applications, the mother seeks orders on an interim basis that:
a)X live with her;
b)She spend time with the father each Tuesday and Friday between 12 pm and 4 pm as well as on X’s birthday from 12 pm till 4 pm;
c)Changeover occur at the E Club, City T;
d)There be a variety of restraints and other orders designed to enhance and protect the parenting relationship, including that the father be restrained from operating a motor vehicle for the purpose of transporting X, that the father be restrained from attending the mother’s home, and that he be restrained from collecting X from preschool and/or her sports club.
The mother seeks no order in relation to parental responsibility.
The father tendered an amended minute of order at the commencement of the interim hearing seeking orders to the following effect:
a)The parties hold equal shared parental responsibility for X;
b)X’s time with the father increase in a staged, gradual manner, starting with time each Tuesday and Friday from 12 pm to 4 pm and each Sunday from 10.30 am until 4 pm, and culminating after a period of approximately three months in overnight time each Tuesday to Wednesday, time each Friday from 12 pm until 4 pm and time each Sunday from 10.30 am until 4 pm;
c)Time on special occasions;
d)Changeovers occur at X’s sports events or otherwise at the father’s house;
e)Daily FaceTime communication whenever X is not otherwise spending time with him;
f)Restraints on each parent from taking medication other than as prescribed;
g)An order that the mother attend upon a GP and a psychologist for the purpose of a mental health assessment.
The Independent Children’s Lawyer seeks orders that:
a)X live with the mother,
b)Time with the father increase in a staged, gradual manner, starting with each Sunday from 10.30 am until 2.30 pm and each Tuesday from 12 pm until 4 pm, culminating, after a period of four months, in time each Sunday from 9 am until 5 pm, each Tuesday from 12 pm until 4 pm, and on special occasions.
The ICL proposes that changeover occur at X’s sports fixtures or otherwise at the E Club, City T. He also proposes a series of restraints designed to regulate the communication and the interactions between the parents for X’s benefit.
In terms of the property applications before the court, the mother seeks property orders to the following effect:
a)That upon the sale of the former family home the proceeds shall be utilised, firstly, to discharge the mortgage and pay any associated costs on the sale;
b)Payment of the sum of $100,000 to each of the mother and the father to be characterised at trial;
c)Payment to the mother of $7000 in satisfaction of a costs order made in her favour in Local Court proceedings and payment to the mother in the sum of $70,000 for her interim legal costs and disbursements;
d)Thereafter, she seeks that the balance be held in a controlled moneys account held in her solicitor’s name.
The father seeks orders that the mother’s application for property orders be dismissed.
Material Relied Upon by the Parties
In terms of the material relied upon by the parties, the mother relied upon:
a)Her Amended application in a case filed 4 February 2020,
b)Her two affidavits both filed 4 February 2020,
c)Amended financial statement for February 2020, and
d)Notice of risk filed 11 March 2019.
The father relied upon:
a)His response to an application in a case filed 12 February 2020,
b)His affidavit filed 12 February 2020,
c)His financial statement filed 12 February 2020, and
d)The child dispute conference memorandum of 23 September 2019.
In addition to this material, each parent’s legal representative and the Independent Children’s Lawyer have prepared comprehensive and careful case outline documents and I thank them for the attention that they paid to this task and the assistance that it provided to the Court.
The parties also tendered material from:
a)X’s preschool;
b)Documents produced on subpoena by the father’s pain management specialist, Dr N, by O Medical Centre;
c)Documents produced on subpoena by P Contact Service; and
d)A handwritten note by the father in relation to financial disclosure.
In accordance with my usual practice, I marked into evidence each of the minutes of order sought by each of the parties on an interim basis.
Discussion
Parenting aspect of the dispute
It is clear from the mother’s perspective that she contends that X’s best interests are best met by X spending daytime periods of time with the father only. She expresses concern that X is at risk in the father’s care because of his use of prescription medication which has not been fully disclosed in these proceedings. She contends that this issue in particular, although not exclusively, would place X at risk if she were to spend overnight time with the father. She contends that the orders that she proposes would see X continuing to maintain a meaningful relationship with the father whilst at the same time ensuring that she is not subjected to any unacceptable risk of harm.
From the father’s perspective, he contends that his time with X is now at a position where it should progress to increase through daytime periods and then to culminate in overnight time once each week. He contends and expresses concern that the mother is not adequately supportive of his relationship with X. He gives evidence that his pain management specialist indicates that he does not pose a risk of harm to X, whether that be driving a motor vehicle or otherwise caring for her. He gives evidence that his use of prescription medication is presently not what it used to be and that he is not reliant upon serious pain control medication. He seeks to increase the time that he spends with X on an interim basis, advancing the case that it is in her best interests.
For his part, the Independent Children’s Lawyer considers that a progression to overnight time between the father and X is at this stage premature, although it is a matter which is likely to occur in the fullness of time. The Independent Children’s Lawyer contends that X is likely to be able to manage and sustain increased periods of daytime time with the father. The Independent Children’s Lawyer also contends for a range of restraints which are designed to promote and enhance X’s safety and the co-parenting relationship. He contends that the minute of order that he proposes is, considered in its totality, to be X’s best interests.
The determination of X’s best interests is to be conducted by a consideration of the relevant section 60CC factors. The two primary considerations are the benefit to X of a meaningful relationship with each parent and the need to protect X from physical or psychological harm arising from exposure to abuse, neglect and family violence. The legislation is clear that greater weight is to be given to the need to protect the child. This is a case that turns primarily, although not exclusively, on the two primary considerations.
In terms of the first, and that is the benefit to X of a meaningful relationship, each of the parties is in agreement that X should live with her mother and spend time with her father. I consider that all parties are in agreement that there is benefit to X in having a meaningful relationship with her father.
The father’s case is that the relationship with X would advance and be enhanced by a move to increased time, culminating at this stage in one overnight each week. The mother proposes time occur on two occasions each week for a period of four hours on each occasion. The Independent Children’s Lawyer supports an increase in the duration of X’s daytime time with her father but does not support a move to overnight time at this stage.
On an interim basis I am satisfied that there is a benefit to X in having a meaningful relationship with her father. I consider that such a relationship already exists. I note that the authorities are clear that the concept of meaningful relationship is a qualitative and not a quantitative one; that is, that it does not turn on the amount of time a parent spends with a child.
In terms of the second of the primary considerations, the need to protect the child from physical or psychological harm, each of the parents contends that there are risks to X in the care of the other parent. There are also, apparently, contentions as to risk arising from the parenting dynamic when the parents interact with each other.
In terms of the risks, it appears that three main risks emerge on the evidence:
a)Each of the parents is concerned about the use of medication by the other and the impact it has on the other parent to care for X. The mother is concerned that the father is unable to be consistently present and attentive to X and that his current medication regime fatigues him such that he should not be driving whilst X is in his care. The father seeks a restraint that each parent take medication only as prescribed.
b)Each of the parents is concerned about the mental health of the other. The father contends that the mother told him that she has borderline personality disorder and he seeks that she be psychologically assessed. The mother contends that the father has been dishonest about his use of medication against a history of prescription medication dependence. In addition to this, she contends that his medical history includes issues with night terrors and hallucinations, making overnight time a risky proposition for X.
c)Each of the parents also alleges that the other has engaged in family violence upon them. For the father’s part, he contends that the mother has assaulted him, necessitating police attendance and resulting in charges and an apprehended violence order which were ultimately dismissed after hearing. The mother contends that the father was aggressive to her during the relationship, particularly after he had consumed alcohol or other substances, including Ambien and Stilnox.
Risk arising from reliance upon prescription medication
Considering each of the risks in turn, firstly, reliance upon prescription medication; the father has a serious medical disorder. This is a disease that apparently causes tumours and neuropathic pain. He gives evidence in his affidavit that he attends upon Dr N for pain management, Dr Q as his GP, and Dr R as a neurosurgeon.
In the child dispute conference memorandum, the family consultant recommended that information be obtained about the father’s health and treatment and clarification of any impact of this on his parenting. I understood this to include an exploration of the medication currently prescribed to the father. The Independent Children’s Lawyer liaised with each of the parties and wrote to Dr N. Dr N has been seeing the father since June 2016 and Dr N prepared two letters in the proceedings at the request of the Independent Children’s Lawyer dated 21 October 2019 and 7 November 2019 respectively.
Those letters indicate that Dr N considers that the father has ceased his very high dose opioid therapy and is presently taking nortriptyline daily and paracetamol daily. He opines that the father’s life expectancy has improved and is now considered likely to be normal. Dr N observed that the father operates a motor vehicle without any apparent difficulty and sees no reason why he would be unable to care for X. Dr N opined that the father’s current health conditions are not impacting his behaviour, mood, energy and/or cognitive functioning and that his medication is probably helping control his behaviour, mood, energy and cognitive function.
In relation to the father’s use of prescription medication, in his affidavit the father gives evidence that he presently takes daily paracetamol for pain management, Lyrica sporadically for neuropathic pain, and nortriptyline daily for oversensitivity to neuropathic pain. He denies he experiences any drowsiness or impact on his functioning as a result of this medication. In addition to these matters, the father gives evidence in his affidavit that he has stopped taking “more serious painkillers” in consultation with GP Dr Q, neurosurgeon Dr R, and pain management specialist Dr N.
I am unaware from the father’s affidavit material when it is that his use of more serious painkillers ceased. I am also unaware as to whether the father accepts that he has ever used Ambien or Stilnox as the mother contends in her interview with the family consultant. As will be noted shortly, the father has apparently relied upon zopiclone medication in the past. Whether or not this is known by the name of Ambien or Stilnox is something that the evidence does not allow me to conclude.
The medical records obtained under subpoena and tendered in evidence indicate that the father has in the past been prescribed zopiclone. I understand from the father’s affidavit that he considers this to be a serious medication and possibly one with some form of hypnotic effect, although there is no medical evidence before me in this regard.
In an earlier affidavit sworn in the proceedings in March 2019, the father gave evidence that he was not taking zopiclone. In his affidavit for these present interim proceedings, he gives evidence that sometime after that affidavit in March 2019, he was re-prescribed zopiclone and/or some other hypnotic agents and resumed taking them for a period of time but that he has since ceased taking them. He does not give evidence as to who prescribed that medication, the period during which he took those medications between March 2019 and February 2020, nor when it is that he ceased use. Dr N does not refer to those medications in his letters and there is no letter or medical opinion from either Dr Q or Dr R regarding any current treatment or prescription medication or whether or not either of those doctors prescribed the zopiclone to the father.
The documents tendered from the material produced on subpoena by O Medical Centre indicate that on 13 August 2019 a patient health summary was printed stating that the father was prescribed labetalol, Lyrica, nortriptyline, perindopril/amlodipine, taygan and zopiclone. A review of the patient health summary does not disclose attendance upon a Dr Q and the records appear to end in 2017. Accordingly, it is not possible to conclude whether the patient health summary is an accurate representation of the medications prescribed to the father as at the date it was printed or in 2017. Those records do however establish that the father was prescribed zopiclone throughout 2016 to 2017.
On 24 March 2017, the father’s doctor recorded that the father sought an increased dose of zopiclone. He disclosed that he had been taking that medication for years, that the GP discussed with the father issues about dependence, that the father was counselled that he should be taking a lesser dose than he was at that time taking, and that the father did not appear happy with that advice but the doctor considered it to be in his best interests.
On 19 September 2017, the GP recorded that the father requested a repeat of zopiclone and when the GP counselled the father in relation to excessive use the father reportedly became agitated, stating:
“All you doctors go on is what it says on the box,” and, “I have to keep going around to different GPs because all you ever do is look at the box.”
The last entry to which reference is made, that is, to the father stating he has to keep going around to different GPs, causes me to be concerned that I have no evidence from the person nominated by the father as his GP, being Dr Q. I cannot find on an interim basis that the father has engaged in doctor shopping at any time; however, a question is raised in my mind as to whether the father has attended upon multiple GPs whose records have not been subpoenaed in these proceedings.
The concern in this regard is amplified by the letter sent on 26 September 2019 by the father to the mother’s solicitor enclosing a health summary sheet from a Dr V dated 15 August 2019. I pause to note that the father was at that time self-represented in the proceedings. Dr V’s health summary sheet was annexed to the mother’s affidavit, not the father’s, and it disclosed that at that time the father was prescribed zopiclone for insomnia, nortriptyline, perindopril for hypertension, and Presolol for hypertension. I am unaware from the evidence presently before me as to whether Dr Q, the father’s nominated GP, practises from the same medical practice as Dr V.
Whilst I do not have a formal medical report detailing the effects of zopiclone, the documents produced on subpoena from O Medical Centre that were tendered in the proceedings include a letter from Dr W of Y Hospital. In that letter dated 22 February 2017, Dr W observes that zopiclone has an amnestic effect, that the father reported to Dr W that if he does not go to sleep after taking the zopiclone he will often get out of bed and engage in activities without having a memory of having done so, and that he has had falls whilst out of bed. Dr W considered that zopiclone can be associated with amnesia, ataxia and disinhibition and that whilst its use had been effective for the father, there was also some risk associated with continued use.
In addition to zopiclone, it is not controversial that the father has used OxyContin. The father gives evidence that Dr N arranged for him to undergo a ketamine infusion, which ceased the father’s need to take OxyContin. Again, I am unaware from the father’s affidavit of the date of this intervention and when it is that the father ceased OxyContin use.
It appears from the records of Dr N produced on subpoena and tendered in the proceedings that:
a)In May 2019 the father was approved for ketamine lozenges, noting that he had requested a ketamine infusion, and at that time Dr N was encouraging the father to reduce his OxyContin use from four times daily to three times daily;
b)In June 2019 Dr N wrote that the father was taking OxyContin three times daily and he was encouraging him to reduce the dose further to twice daily. Dr N was going to reapply to authorise further ketamine use; and
c)In July 2019 the father was taking two OxyContin daily, continuing to wean, on his last prescription, and that he was coming to the end of his ketamine treatment.
Apparently, a further review by Dr N was scheduled for September 2019, although the records of that review are not in evidence before me.
In terms of the father’s use of medications, I consider the following matters on an interim basis are made out:
a)That the father was using OxyContin on a daily basis at least until July 2019 and he was reducing his intake in the months before then;
b)I am unable to conclude when, with precision, he ceased OxyContin use, other than that Dr N considered that at October 2019 the father had ceased use;
c)Dr N’ records do not support the father’s evidence that he had a ketamine infusion although they do support that the father was administered ketamine lozenges throughout May to July 2019. I am unable to conclude whether or not this extended beyond that date;
d)During the period of March 2019 through to February 2020 the father was re-prescribed zopiclone, which I infer the father considered to be a serious medication, possibly with hypnotic effect;
e)As at 15 August 2019 the father was prescribed zopiclone for insomnia by Dr V. Zopiclone can be associated with amnesia, ataxia and disinhibition, and there is risk associated with continued use. The father is reported to have experienced amnesia and falls whilst using this medication in the past. The father has been counselled in relation to cessation of zopiclone use in or around 2017 and has been counselled in relation to ongoing risks associated with its use; and
f)Insofar as the father gives evidence that his GP is Dr Q, the father has also attended upon Dr V who has, apparently, prescribed medication to him.
Having regard to the evidence available from the documents produced on subpoena as well as the health summary annexed to the mother’s affidavit prepared by Dr V, I am unable to presently conclude that the father’s evidence about his current medication use is accurate. Dr V’s health summary in August 2019 indicates that medications were at that time prescribed to the father that are not discussed at all in Dr N’s letters written just two months later in October and November 2019. Given these uncertainties and a lack of any precise evidence on these issues by the father, I am unable to conclude that Dr N is fully appraised of the father’s medication regime. Whilst I do not doubt Dr N’s expertise in terms of his views about the impact of the father’s current medication regime as it is known to Dr N, where I cannot be certain that Dr N is fully appraised of the father’s current medications I cannot place weight on Dr N’s opinions as to the father’s capacity to drive a motor vehicle or the extent to which the father’s current medications are helping to control his behaviour, mood, energy and cognitive function.
It is clear from the correspondence between the parties that the father alleges that the mother has abused opioid pain relief in the past, including OxyContin during the relationship, and he holds concerns that she continues to do so.
It appears uncontroversial that the mother has had past issues with medication dependency. I am unaware from the evidence as to whether the mother is currently prescribed any medication for any condition and if so, what it is, as she does not tell me in her affidavit material. During the child dispute conference, she is reported to have told the family consultant that she has rheumatoid arthritis and that she takes pain medication to manage this condition.
To some extent the mother’s use of prescription medication is a less significant issue given that all parties appear in agreement that X will continue to live with the mother and remain in her primary care. However the mother’s use of prescription medication does not mean it is an irrelevant issue, particularly against a history of opioid medication dependence. Any misuse or abuse of prescription medication, particularly in a context where there have been dependence issues in the past, can impact on a person’s parenting capacity.
Risk arising from mental health
Turning then to the next risk which is the risk arising from mental health. On 17 November 2014, the mother sent an email to the father. In that email, she wrote that she has a form of borderline personality disorder and that she primarily identifies with the features of emotional distress and poor regulation of her emotions.
During the child dispute conference the mother informed the family consultant that she had been diagnosed with borderline personality disorder at Y Hospital and that she experiences situational anxiety. I do not know whether or not situational anxiety is a diagnosed psychological or emotional condition. The mother is reported to have told the family consultant that the diagnosis of borderline personality disorder has since been queried and that she does not experience some of the associated symptoms.
I am unaware as to who the mother says queried the diagnosis of borderline personality disorder. I do not know if it was a medical or mental health professional or if it was the mother herself. I do not know because the mother does not say in her evidence how it is that she presently manages her mental health, if she does so at all. I do not know whether she attends on a psychologist, psychiatrist or other counsellor.
Again, noting that no party proposes that X live anywhere other than with the mother and noting that X appears to be going well in the mother’s care, it does not presently seem that the mother’s mental health has adversely impacted on her parenting capacity such that X is at risk in her care. I say this having regard to the fact that X is presently attending preschool three days per week. Preschools are mandatory reporters and I consider that if there was any concern from a child protection perspective this would have come to the attention of the authorities. Additionally, the father is spending regular weekly time with X and he raises no concerns about X’s presentation or behaviour when they are spending time together.
If, however, the mother has a diagnosis of borderline personality disorder and if it does impact on her ability to regulate her emotions and/or she experiences emotional distress, and if it is the case that she experiences situational anxiety, then these symptoms may impact on her behaviour and affect her at times that she comes into contact with situations that cause her to feel stressed or overwhelmed including possibly, interactions with the father.
In relation to the father’s mental health, the mother contends that the father experienced night terrors and hallucinations in the past. The father in his affidavit material expressly denies having experienced psychosis or hallucinations. He accepts that he has experienced depression and the medical records bear this out in terms of his experience of depression. The father does not give any evidence as to how his mental health is presently managed, if at all.
His contention that he has never experienced psychosis or hallucinations is inconsistent with documents tendered from the subpoenaed records of O Medical Centre. On 26 October 2016, Dr Z wrote to Dr W at Y Hospital detailing that the father at that time had a problem with sleep and waking with night terrors, apparently associated with his disease. This was reiterated in further correspondence dated 19 January 2017. On 22 February 2017, Dr W wrote to Dr Z to confirm that the father had attended upon him that day with nightly hypnagogic hallucinations with sleep paralysis on a background of a range of persistent neurological symptoms. Dr W recorded that the father reported that zopiclone was helpful for “his psychotic hallucinations/sleep paralysis”.
I therefore consider it likely that the father has experienced hallucinations in the past, including in 2017, although I accept that it would appear that they are associated with sleep paralysis, which appears to have developed after he had surgery in 2010 related to his disease. I am unaware as to whether the father continues to experience sleep paralysis or hallucinations and if he does, how it is that he manages those issues when not taking zopiclone.
Risk arising from family violence
Turning then to the third risk, and that is the risk arising from family violence. Each of the parties contends that the other has engaged in family violence throughout the relationship. Each contends that the other has behaved with physical violence and aggression and has been verbally abusive both during the relationship and following separation. As noted earlier in these reasons, police have been called to the parties’ disputes on two occasions.
In December 2016 the police were called when the parties got into conflict while the mother was dyeing her hair. The police apparently interviewed each party and each gave differing accounts of the conflict.
In October 2018, whilst facilitating overnight time in the father’s house the parents became engaged in an argument over a cup of tea. The mother was accused of punching the father to the jaw. Police were called and the mother was charged. An application for an apprehended domestic violence order was made against her on the father’s complaint. These matters were dismissed by the Local Court on 7 February 2019.
Having regard to the totality of each party’s evidence I find it more likely than not that family violence has occurred between them, although I am unable to make any concluded finding as to the nature and extent of that family violence and whether it is one or both parties who have engaged in family violence upon the other.
I note that in the child dispute conference memorandum the father reported that he had no ongoing fears of the mother and was not intimidated by her during the relationship. The mother reported that she did not consider that the father would deliberately hurt X. In any event, should an incident of family violence occur between the parents when X is present, it has the capacity to be incredibly distressing and damaging for X. Should there be any form of physical confrontation between the parties, not only may X become a witness to that but she may also become the unintended victim of such a confrontation.
The remaining section 60CC factors
Turning then to the balance of the section 60CC factors that are relevant to this interim dispute. There is no doubt that each of X’s parents loves her and has taken opportunities to be a parent to X. During the time that the parties lived together the mother contends that she undertook the majority of parenting of X. The father contends that he was an active and involved parent and undertook parenting in equal share to the mother. He gives evidence that the parties developed a roster of household and parenting tasks, demonstrating the equality of their contributions.
The medical evidence in relation to the father’s functioning during 2016 and 2017 causes me to question whether he had the physical capacity to be as actively involved as he claims. However, I cannot presently make a concluded finding in that regard and it is not a matter of great significance on an interim basis, given that the parents have been separated for some years now.
Since separation, the mother has been X’s primary caregiver. It would appear that she has undertaken the lion’s share of decision-making on behalf of X. The father has spent two occasions of supervised time with X. The contact reports that are in evidence were positive about his engagement with X and about X’s engagement with him. He has continued to avail himself of opportunities to spend regular time with X in accordance with court orders, and to communicate with her. It would appear that the arrangements put into place by the interim orders of 18 March 2019 have largely been followed other than between 19 September and 1 November 2019, when the mother ceased facilitating time due to concerns about the father’s health.
The interim orders that are proposed by all of the parties will see a change in X’s circumstances. Each party proposes that X’s time with the father will increase. X spends time with her father on a weekly basis and will continue to do so on each proposal. This seems appropriate for a child of her age, and I note that frequent time between a child of X’s age and a parent allows the child to enjoy time with the parent each week and to readily retain memory of and connection to the other parent.
The father proposes that his time with X progress to later daytime periods and eventually to overnight time one night each week. To date X has never spent overnight time away from her mother and it is difficult to predict how this will impact upon her. She is still relatively young being only four years old, and she is yet to start school. It is difficult to know whether X might become distressed if she is away from her mother. Distress in a child of four years of age on separation from a primary caregiver may occur irrespective of the quality of care that the other parent provides. Younger children are less able to make sense of changes to their routine and environment than are older children and may be less able to regulate their own emotions in this regard.
The evidence does not allow me to conclude at this stage that the co-parenting relationship between the parents is sufficiently robust as to be confident that in the event that X was to spend overnight time with her father the father would contact the mother and return X to the mother’s care, in the event that X experienced distress.
In terms of the capacity of the parents to provide for the needs of X, each parent apparently has concerns about the parenting capacity of the other arising from the use of prescription medication, mental health and family violence. These risks or these issues have been discussed extensively earlier in these reasons.
As noted earlier in these reasons, throughout September 2019 until November 2019 the mother suspended the father’s time with X. The father has some criticisms of her in this regard and is concerned that this demonstrates that the mother is not supportive of their relationship. The genesis of this incident appears to have been a text message exchange between the parties in July 2019, which then snowballed into concerns about the father’s use of prescription medication.
In July 2019 the father sent a message to the mother seeking to make different arrangements for time as he had health issues. When the mother queried him about this, his response was a message to the effect of, “Talk to my next of kin.”
There were further issues in relation to the arrangements for time between X and her father in July and August of 2019. Then in September 2019 the mother inspected documents produced on subpoena in these proceedings and became concerned about the medications prescribed to the father. This gave rise to correspondence between the father and the mother’s lawyers, and the mother considered that she did not receive a satisfactory response to queries about the father’s health. Forming the view that X would be at risk in the father’s care absent accurate information from the father about his medication regime, she suspended time. The issue was apparently resolved to some extent when Dr N wrote to the parties at the request of the Independent Children’s Lawyer, and I note that time resumed shortly thereafter.
Given my conclusions about the evidence insofar as it relates to the father’s medication use in recent and current times, I do not consider that the mother’s actions in suspending time were unreasonable at that point in time and I do not consider that they indicate that she is not supportive of the relationship between X and her father.
In terms of consideration of family violence and any applicable family violence order, issues in relation to family violence have been discussed earlier in these reasons and there is, at present, no relevant family violence order.
Determination of the parenting dispute
The section 60CC factors as are relevant to this dispute having been considered, I turn now to the determination of the parenting dispute.
In relation to the issue of parental responsibility, the mother and the Independent Children’s Lawyer do not seek orders in relation to parental responsibility. The father seeks an order for equal shared parental responsibility.
At this point in time, X is four years old. She is enrolled at preschool and in extracurricular activities. There is no evidence that she has had any significant health issues that would require a decision to be taken in the exercise of parental responsibility. There is no evidence that she has any social, educational, medical or religious needs that are not being met or decisions required in that regard which have not been taken in the absence of an order for parental responsibility.
The financial circumstances of each of the parents would indicate that private schooling is unlikely to be an option for X’s education. If that is correct, it is likely that X will attend her local public school when she commences in kindergarten. Accordingly, on an interim basis, I do not consider that there is a need to make an order for parental responsibility.
As will become apparent shortly, I intend to make orders as sought by the Independent Children’s Lawyer, and I note that the orders sought by the Independent Children’s Lawyer will enable the father to communicate with X’s medical practitioners and her preschool/school so that he can access information in relation to these important issues for X.
In relation to the balance of the parenting orders, I consider that orders should be made in accordance with the Independent Children’s Lawyer’s proposed minute of order. I also consider that it is appropriate to:
a)Restrain the father from transporting X in a motor vehicle;
b)Restrain him from attending the mother’s residence and from collecting X from preschool or her sports club; and
c)Require each of the parties to undergo mental health assessment, subject to their financial capacity to do so.
I have reached that conclusion for the following reasons. In relation to overnight time, I do not consider at this time that X’s time with her father should progress to overnight time even if a gradual and staged progression is adopted. I do not consider that I have an accurate picture of the father’s present medication use. This was a matter that was recommended by the family consultant in the child dispute conference memorandum. It appears that as recently as August 2019 the father was prescribed zopiclone. This is a medication he has used in the past for insomnia and night terrors or hallucinations. It has a number of serious potential effects, as set out by Dr W and I do not know how recently the father has taken the medication, whether it is still prescribed to him, and whether in fact he continues to take it. I do not know whether the father continues to experience sleep paralysis, night terrors or night hallucinations and if he does, how he presently manages those issues.
If X were to be in his care overnight, and if he experienced insomnia or night terrors or if he was to be taking zopiclone with its associated potential effects of amnesia and ataxia and disinhibition, I consider that he may be unable to be properly present to attend to X’s needs or that X might be otherwise at risk in his care. I pause to note that the father has reported to Dr W in the past that zopiclone has had an amnesiac effect upon him. Given all of the unknowns in this regard, I am unable to assess how the risk that I have identified in relation to overnight time may be ameliorated and accordingly, at present, I consider the risk to be an unacceptable one should X spend overnight time with her father.
In relation to the location of changeovers, I consider that changeover should occur in a public place, that is, at X’s sports club or otherwise at the E Club, City T. The mother does not wish to attend the father’s home for changeover. Whilst the father considers that this location is beneficial for X as it is a more natural environment and would allow her to see her parents working cooperatively together, I consider that a public environment is a more protective environment.
If it is the case that the mother has situational anxiety and borderline personality disorder or features of that disorder and if it is the case for the mother that either of those conditions cause her to have difficulty with emotional distress or regulation of her emotions, I consider that changeover at the father’s home is likely to exacerbate rather than ameliorate those issues for her. Should she be triggered, it has the potential to trip into conflict.
As noted earlier, the parents each contend family violence has occurred and I consider that it is likely that it has. If tensions between the parties escalate at changeover and X is exposed to this, I consider that it is possible she would be at risk of physical or psychological harm. I consider that a public location for changeovers is more likely to result in each of the parents remaining calm and is likely to reduce the risk for conflict to arise – although I do not consider that it will eliminate the risk entirely.
In terms of the frequency and duration of time, X has been spending time with her father on a consistent and regular basis since the orders of March 2019. This has apparently been progressing well. There is no evidence to indicate that X is resistant to spending time with her father or that she is adversely affected by time with her father. In the child dispute conference memorandum, the consultant observed that both parents appeared to support X being based mainly in her mother’s care and that the parents seemed open to X’s time with the father gradually increasing.
The Independent Children’s Lawyer proposes a staged increase in daytime time which builds upon the current arrangements. There is nothing in the evidence that indicates to me that X would not cope with or benefit from longer periods of daytime time with the father as proposed by the Independent Children’s Lawyer. I also note that insofar as the Independent Children’s Lawyer proposes that time occur on a Sunday, that this allows the father to engage with X in what appears to be one of X’s present pursuits, being the sports club.
In terms of the decision to make a restraint on the father transporting X whilst she is in his care, without a clear indication as to the father’s present and recent medication regime, including whether or not he is currently using hypnotic or sedating medications and how recently he has ceased oxycontin and zopiclone use, I consider that X may be at risk if the father was to be transporting her in a vehicle. I consider this to be the case notwithstanding Dr N’s opinion as to the father’s capacity to operate a motor vehicle. Serious pain relief medication and medication such as zopiclone may, in my view, have a sedating effect on the father or otherwise reduce his alertness. As noted earlier in these reasons, insofar as Dr N expresses no concern about the father’s capacity to operate a motor vehicle, I place little weight on his opinion in this regard in circumstances where I do not consider there is accurate information about the father’s current and recent use of prescription medication and where I am not confident that Dr N is fully appraised of these matters.
In terms of the proposed restraint on the father attending the mother’s home and collecting X from preschool or sports club, there is little evidence before me in relation to whether the father has attended or threatened to attend at the mother’s residence, X’s pre-school or her sports activities. These restraints have however been in place since the orders of 18 March 2019. The mother seeks that those orders continue on an interim basis as a means, as I understand it, of enhancing her felt sense of security.
The father gives no evidence that those restraints have been significantly problematic for him or have caused him any issue. Given that the restraints have been in place for a period of 12 months – apparently without issue – and given that they will enhance the mother’s feeling of security particularly in circumstances where she is X’s primary caregiver, and further, given that she may have some mental health vulnerabilities, I consider that on balance the benefit of the orders to X outweighs any detriment to the father and I will make the restraints as sought by the mother in that regard.
In terms of a mental health assessment, this was a matter that was raised by the father. In the course of the interim hearing I explored with each of the parties whether, if such an order was to be made, there should be an assessment of each party rather than of just one of them. As I understand the parties’ respective positions, each was open to the possibility of being subjected to a mental health assessment.
As noted earlier in these reasons, each party raises concern about the others’ mental health. If these issues are to be seriously pursued in the parenting proceedings, then I consider it is appropriate that there be a mental health assessment of each parent, noting that I am not yet fully appraised of the parties’ capacity to fund such an assessment.
Property aspect of the dispute
Interim costs
The wife seeks, as noted earlier in these reasons, an interim costs order also known as a Hogan Order, to be met from the proceeds of the sale of the former family home at B Street, C Town. The sum that she seeks is $70,000. The husband opposes an order in that quantum or at all. It was conceded in the course of submissions that the sum sought by the wife represents costs to date on an indemnity basis.
As noted earlier in these reasons, the court’s powers in relation to costs are found at section 117 of the Family Law Act. The general principle and starting point is that each party bears their own costs. There is also a general principle that when a court makes an order for costs, those costs be payable on a party and party basis and that the court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying a departure should be of an exceptional kind, see Kohan & Kohan [1992] FamCA 116.
In Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225, Sheppard J, having considered the earlier authorities, said that there should be some “special or unusual feature in the case to justify the court in departing from the ordinary practice”.
In Munday & Bowman (1997) 22 Fam LR 321; FLC 92–784 then Holden CJ referred to various examples of circumstances which might justify a departure from the general principles discussed by Sheppard J in Colgate-Palmolive as follows:
a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.
b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra).
c)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).
e)An imprudent refusal of an offer to compromise.
I note that those considerations arise in the event that costs are sought on an indemnity basis for costs incurred by the wife to date.
As discussed earlier in these reasons, it is possible for the court where making a Hogan Order, to make an order not only for costs incurred to date but for future costs of funding the litigation. In the event that the application is approached on that basis, that is, an application for costs incurred and for future costs, I do not consider that the wife’s application in this regard falls into the category of indemnity costs. In any event, the starting point for the wife’s application for a Hogan Order is whether or not an order for costs should be made at all. An order for costs may be made where the court considers that there are circumstances which justify the orders being made.
Turning then to the relevant considerations at section 117(2A) which the court is required to give consideration in determining whether or not to make an order for costs and if so, would at all be made. The financial circumstances of the parties to the proceedings is set out in the evidence and in particular in their recent financial statements. The wife presently has a weekly income of approximately $641 per week derived from Centrelink benefits and $27.75 child support paid by the husband. Out of that sum she has weekly living expenses of $594 per week for herself and X. She sets out the expenses in her financial statement and to my mind, they are modest and entirely reasonable in the circumstances.
In addition to her living costs and X’s living costs, the wife pays $430 per week rent and $48 per week for car running costs. She makes a weekly payment of $14 on her Mastercard. Her expenses totalled together currently exceed her income by approximately $400 per week. To make up the shortfall she has apparently borrowed money from her parents. She has very little by way of savings. She has a motor vehicle valued at approximately $50,000. This is presently a part of the property pool in dispute between the parties. The mother presently requires that vehicle to transport X and I do not consider it to be immediately viable for her to sell the vehicle.
The husband presently has a weekly income of $1489 per week made up of income protection payments of $969 and rent from the B Street, C Town property of $520. As best I can work out, other than his $27.75 per week child support, he does not support any other dependents. The husband does not detail his daily living expenses in his financial statement but he has a weekly personal expenditure of $1579, somewhat less after an amendment of his financial statement during the interim hearing, and his weekly personal expenditure is made up of weekly rental of $425, mortgage repayments of $465, rates and levies of $125, personal loan repayments of $102.50, credit card payments of $60 per week and child support of $27 per week.
The husband claims 100 percent ownership of the premises at B Street, C Town, presently estimated to be valued at $1 million. The mortgage on the B Street, C Town property is presently $329,248.12 and the house is presently on the market, having been listed recently. The husband discloses liabilities of $10,000, being a debt to his parents of $5000 and arrears in his rates of $5000.
Whilst the husband does not accept it to be the case, it appears that he presently is in a stronger financial position than is the wife. The B Street, C Town property is registered in his sole name. He has placed the property on to the market without prior notice to the wife and in circumstances where, knowing that it is likely to be a contentious issue between the parties, he does not make any proposal for the proceeds of sale to be held in a controlled moneys account. I pause to note that the father appropriately disclosed the placing of the B Street, C Town property on the market when his new solicitors were engaged to act on his behalf.
Notwithstanding that the property has only recently gone on to the market, the process of engaging an agent, preparing the home to be listed, and preparing a contract for the sale of property is not a matter that is attended to in the course of a day or so but rather involves some weeks of preparation. Accordingly, whilst the disclosure has appropriately been made as soon as the father’s new solicitors came on board, I consider that steps were being taken in that regard without notice to the wife for some period of time beforehand.
Assuming that the B Street, C Town property sells, and I note that the wife does not seek payment of any Hogan Order until the property sells, the father will have access to approximately $700,000 of the sale proceeds once the mortgage is discharged subject to the amount for which the property sells. This, to my mind, places the husband in a significantly stronger financial position than the wife. Additionally, the husband’s weekly income is higher than the wife’s and if and when the property sells, whilst he will no longer receive any rental income from the property, his costs associated with items such as the payment of rates and the payment of the mortgage will no longer arise for payment by him. Accordingly, for those reasons I conclude that the husband is in a stronger financial position than the wife.
Neither party is in receipt of a grant of legal aid.
In terms of the conduct of the parties to the proceedings, in relation to the proceedings, the wife contends that the husband has been recalcitrant in the provision of financial disclosure. Orders have been made by the court for disclosure on 18 March 2019 and again on 19 June 2019. The orders of 19 June 2019 provided that disclosure was to be made within 28 days of the date of orders. As noted earlier in these reasons, the disclosure orders made on that day included orders that the husband disclose his estimated value of the B Street, C Town property and of the Motor Vehicle 1, provision of his tax returns, provision of bank statements, provision of various other documents that are ordinarily disclosed in the course of property proceedings as well as the disclosure of rental income derived from the holiday letting of the B Street, C Town property.
The husband prepared a handwritten schedule of the provision of his disclosure documents in accordance with the orders of 19 June 2019. That handwritten schedule indicates that on 15 July 2019 he provided to the wife a series of bank account details and insurance payslips. I note that the document he prepared does not indicate that he provided the entirety of the disclosure that was required by the orders of 19 June 2019 and, as at the present date, I understand the wife contends that disclosure in relation to rental income from holiday letting of the B Street, C Town property remains outstanding.
The wife concedes that along the way she has been provided with some bank account information by the husband prior to the orders of 19 June 2019 as well as following that date but that the documents in relation to the husband’s bank accounts had been altered by him such that the information contained therein was redacted and moved around so that it was out of chronological order and did not make sense. This was a matter that was ventilated to some extent before me on 23 July 2019 when I was dealing with the husband’s objections to subpoena. The husband conceded on that date that he had made some alterations to the records although he did not necessarily concede the entirety of the alterations the mother contends that he made.
In any event, the wife contends that the unsatisfactory state of the financial disclosure provided to her by the husband gave rise to the need to issue subpoenas to the husband’s bank. Those subpoenas were issued on 10 July 2019. The wife contends that it was necessary to issue the subpoenas as a result of the conditions of the records disclosed by the husband.
The husband filed Notices of Objection to the subpoenas. Those objections were heard on 23 July 2019 and, having heard and determined that the husband’s financial disclosure had at that stage been unsatisfactory, each of the husband’s objections to the subpoena was dismissed.
In addition to this matter, the husband failed to appear at the Conciliation Conference scheduled for 1 August 2019. Whilst he explains in his affidavit material that he had misdiarised the date of the conciliation conference, attempts were made to contact him by the Registrar, unsuccessfully.
The husband has also filed four contraventions in the proceedings and a further objection to a subpoena issued at the request of the wife to the Town M Medical Centre. The four contraventions and the further objection to the subpoena were discontinued by the husband on 12 February 2020, less than a week before the interim hearing; after the date on which the parties were required to file their evidence on the interim application, and after the time at which the wife had prepared evidence to meet the contravention applications.
In terms of whether or not the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court, I note in these proceedings that the application before the court was initiated by the husband seeking orders in relation to parenting and property.
As matters have progressed there have been interim hearings designed to regulate both the parenting and property aspects of the dispute. Whilst there may have been court attendances necessitated by the husband’s objection to subpoena and/or by requests for orders for the father to make proper financial disclosure, it appears that on each occasion there were a number of issues dealt with by the court and accordingly I do not consider that the proceedings have been necessitated by the failure of a party to comply with previous order of the court.
As the proceedings are yet to conclude on a final basis, I do not consider that it is relevant to consider whether any party to the proceedings has been wholly unsuccessful.
There is no evidence of any offer in writing having been made by either party to settle the proceedings.
In terms of the court’s consideration as to such other matters as the court may consider relevant, I do consider it relevant that the wife has had to expend money on two sets of local court proceedings, specifically criminal proceedings and a local court action initiated by the husband in relation to the Motor Vehicle 1.
In relation to the criminal matters, it was pointed out in submissions on behalf of the husband, and I agree and accept, that the police had the running of those proceedings. I note however that the police acted – or must have acted – upon evidence and the complaint of the husband in that regard.
More vexing to my mind however is that the orders of 18 March 2019 restrained the husband from taking action to recover the Motor Vehicle 1. I note that those were orders that were made by consent and at a time when the husband was represented in the proceedings. Notwithstanding that restraint, the husband did file proceedings in the Local Court of New South Wales on 4 June 2019 seeking the return of the motor vehicle or, in the alternative, the sum of $85,175 inclusive of costs and interest and court fees.
The wife defended the Local Court action and on 23 January 2020 she obtained an order for costs in the amount of $7000. This remains outstanding to her at the time of interim hearing before me.
Having regard to all of the matters at section 117(2A) I consider that in all of the circumstances it is just to make an order for costs in favour of the wife.
In terms of quantum, I do not consider that the wife has made out a case for an award of costs on an indemnity basis. The present case does not fall within any of the circumstances set out in the cases to which I have referred that would warrant a departure from the usual solicitor/client costs.
Turning to the considerations in Zschokke, as already noted, I consider that the husband is in a position of relative financial strength. He is in receipt of $950 per week by way of income protection payments. Whilst he has costs associated with the B Street, C Town property, those costs are significantly defrayed by the income he apparently derives from the property as he presently estimates it, noting that he is yet to provide disclosure in relation to this. If and when the B Street, C Town property sells, the father is likely to have the capacity to pay his own litigation costs, the property being held in his sole name.
The wife is in receipt of Centrelink benefits and very modest child support. Out of her limited income she houses, feeds and clothes herself and X. Her decision to recently obtain private rental accommodation was necessitated by her parents’ decision to sell their home and she no longer has the option of living with them. She is borrowing from her parents to meet her living costs. Her solicitors have apparently taken the matter on her behalf on a deferred fee arrangement however it is clear that the litigation to date has exceeded the cost estimate of approximately $25,000 provided to her.
She presently has a work-in-progress balance of $70,000. Whilst there is no evidence that her solicitors will cease to act on her behalf if a Hogan Order is not made, and I pause to note that this is not a prerequisite to the making of such an order, it is reasonable to assume that there will come a point where the lawyers are unlikely to continue to work without some form of payment. If and when this occurs it will mean that the wife will either have to represent herself in the proceedings or find a lawyer who might otherwise accept instructions on a deferred fee basis. I consider that the wife presently has an inability to meet her litigation costs and that if some form of costs order is not made in her favour it is likely to give rise to an injustice between the parties, particularly in the event that the wife becomes unrepresented in the proceedings.
Whilst the wife is yet to particularise the orders she ultimately seeks on the property application, it was put in submissions on her behalf that she seeks an order for property adjustment in the range of approximately 25 to 35 percent. The property pool is modest comprising of the B Street, C Town property which is currently estimated to be valued at
$1 million with an outstanding mortgage of $320,000 and a Motor Vehicle 1 presently estimated to be valued at $50,000 but likely to depreciate as the proceedings go on.
Whether the wife is likely to achieve a 25 to 35 percent adjustment in her favour will remain to be seen given that the parties were in a relatively short relationship and the husband brought the most significant asset within the property pool, that is, the F Street, Town G property, into the marriage. However, as set against that, the wife made contributions as a parent and homemaker. Whilst the husband contends that their contributions were equal in this regard, the medical evidence indicates that he had some serious issues arising with his capacity from his disease thereby calling into question his contentions that all household tasks and parenting duties were undertaken equally. Additionally the wife presently has care of the parties’ child on a primary basis as has been the case since separation.
For these reasons, it appears to my mind the wife at least has an arguable case for substantive relief as against the father’s claim that there be no property adjustment at all. There is no evidence that allows me to conclude what the likely cost of the proceedings in the future will be other than that the wife has expended $70,000 in costs in the 13 months since the litigation has been on foot.
Given that the net property pool is on the available evidence at best $750,000, I consider that a Hogan Order in the sum of $70,000 is excessive in the circumstance as it represents almost 10 percent of the net pool. I consider that the sum of $45,000, being approximately 6 per cent of the net pool, will defray the wife’s legal costs to date and will enable her to continue to be legally represented. I consider this to be just and equitable in the circumstances particularly having regard to the fact that the order shall not be activated unless and until the B Street, C Town property is sold. The sum of $45,000 by way of Hogan Order is to be paid from the sale proceeds of the B Street, C Town property.
Interim property distribution
Turning then to the wife’s application for interim property distribution, she seeks that $100,000 be distributed to each party upon the sale of the B Street, C Town property. This sum represents 13 percent of the net pool as best I can presently estimate the value of the net pool.
The starting point here is whether the interests of justice warrant the court making an order for interim property distribution.
As noted earlier, the wife is presently unemployed, in receipt of Centrelink benefits, and in receipt of very modest child support.
I note that the child support that the husband presently pays is less than the amount that he pays on a weekly basis in satisfaction of each of his credit cards. Whilst the wife does not disclose why she requires the sum of $100,000, it is clear that she is struggling financially. She has recently had to move to rental accommodation as her parents are in the process of selling their home. Staying with them is no longer an option for her.
In written submissions, the husband was critical of the wife for not exploring Department of Housing accommodation or accommodation that is cheaper and more suited to her income. I note at this point that the availability of Department of Housing accommodation at short notice and in an area that would keep X proximate to the father is questionable at best. As to the cost of the wife’s accommodation being better suited to her income, the wife’s rental costs for herself and X are only $5 per week more expensive than the husband’s present rental costs for accommodation he enjoys on his own.
In addition to these matters, the wife has had to defend two sets of Local Court proceedings, that being the criminal proceedings initiated on the complaint of the husband but pursued by New South Wales Police, as well as the proceedings in relation to the Motor Vehicle 1 that should not have been initiated by the husband, having regard to the restraint entered into by consent and imposed by order of this court on 18 March 2019.
Whilst the husband is also critical of the wife for failing to adduce evidence of her indebtedness to her parents, given her present level of income, the question begs as to how she could afford to support herself and X if she had not borrowed money from some source or received some form of financial support from other persons.
In all of the circumstances, particularly having regard to the fact that the mother is bearing the lion’s share of the financial responsibility for X, I consider that the interests of justice do warrant an interim distribution of property.
Before I turn to quantum, the wife contends for orders that would see an equal interim distribution be made to each party and I consider that the interests of justice are best served by following that course.
In terms of the quantum of distribution, as was pointed out in submissions, the authorities require the court to take a cautious approach in relation to such a distribution so that the court does not ultimately prejudice any property orders that may be made upon final hearing when the court has had the benefit of cross-examination and a testing of the evidence.
The wife is yet to particularise the orders that she seeks on a final basis. However, as noted, it was put in submissions that she would seek an adjustment in her favour in the range of 25 to 35 percent. As noted earlier, whether she will achieve this at final hearing is yet to be determined. It was a short relationship. The husband brought the primary asset into the marriage. He appears to have made the greater financial contribution throughout the course of the marriage. The Motor Vehicle 1 was acquired throughout the relationship although it is likely to be depreciating in value.
The wife has rheumatoid arthritis. She contends that at the time the parties married she gave up her life to move with the father and make her life with him, foregoing the opportunity for study. She has primary care of X, including primary financial care for her. The husband also has health issues arising from his disease. I note that the wife contends that she has made contributions on the role of homemaker and caretaker for the husband in this regard whilst the parties were together.
The husband is presently in receipt of income insurance in the sum of $950 per week and according to Dr N, his health prognosis is apparently quite reasonable. He currently does not have a reduced life expectancy. He has not worked for some years and I am unaware as to his present capacity for further employment in the short to medium term.
Insofar as the husband contends that the homemaker contributions of the parties were equal, and that this is likely to cause the court to find on a final basis that there ought be no orders for property adjustment, particularly when viewed alongside the financial contributions that he made throughout the course of the marriage, I have some reason to question the husband’s assessment of the equality of the contributions that were made by the parents in relation to home duties, caretaking responsibility and parenting of X.
I say this having regard to the records that were produced on subpoena by Dr N. In correspondence in June 2016, Dr Z wrote to Dr N indicating that the husband, at that point in time, had spasms of thoracic pain, worse with activity and driving. In June 2016, Dr N wrote back to Dr Z indicating that there had been psycho-education provided to the husband but he details in his report that the husband dated the onset of his symptoms to early in 2010 when he began to notice increased difficulty in walking and reduced sensation.
He underwent surgery to remove a tumour on his spine in 2010. Post-operatively, that is since 2010, he was reported to have had increasing pain, increasing difficulty walking, numbness, neuropathic pain and spinal fluid flowing unevenly. He also had tumours detected at C2 and in his parietal lobe. The husband described an increasing use of opioid medication including Fentanyl, OxyContin and other medications.
In terms of his capacity and pain description, the father described in June 2016 his pain being constant but of variable severity. At its worst, it could occur spontaneously whilst driving over bumps and for a week after poor pacing of his activities in the garden resulting in lethargy and hypothermia. This pain required relief by rest.
He was described as being independent in his personal activities of daily living however he was also described, at that point in time, to have slept for about 12 hours per day, unable to do vacuuming, mow the lawns, do the shopping or hang out the washing as it caused overheating. He was described as being unable to stand to do the cooking for more than five minutes. He reported at that time that he found caring for X tiring. He was observed to have an abnormal gait in the report of Dr W.
Accordingly, it appears to my mind that notwithstanding the husband’s contentions, there is certainly an arguable case, on the wife’s behalf, that she provided significant assistance to the father as carer, homemaker and parent.
In all of the circumstances, I consider that once the B Street, C Town property sells an interim property distribution of $55,000 to each party will relieve the financial stress that they both, but particularly the mother, are presently experiencing.
This in conjunction with the Hogan Order I have made will see the sum of $100,000 in total being released to the mother if and when the B Street, C Town property sells. Subject to the price at which the B Street, C Town property sells, this represents 13 per cent of the net property pool based on the current estimated value of the assets. I do not consider that this sum will ultimately prejudice any final order that the court may ultimately make. I also consider it appropriate to order that upon sale of the B Street, C Town property, the husband pay to the wife the sum of $7000 being the current outstanding Local Court costs order in her favour.
Beyond those distributions, I consider that the balance of the sale proceeds of the B Street, C Town property ought be held in a controlled money account that is managed by the wife’s legal representatives. This is not to say that there is any criticism at all of the husband’s solicitors nor their capacity to appropriately and properly deal with moneys that are held on a controlled moneys account. The reason I take this decision is because of the fact that the father has now had two sets of legal representatives in the proceedings and in the circumstances, in the event that he became self-represented again, it would necessitate further court attendances to deal with that particular issue.
An order is sought that the wife be and is hereby appointed as trustee for sale of the B Street, C Town property, to sell the property in accordance with orders on behalf of the parties jointly. I have given serious consideration as to whether or not the court should make orders in that regard, noting that the B Street, C Town property is held in the husband’s name, he has taken steps to list the matter for sale without notice to the mother until his legal representatives were engaged, noting that he did not propose any orders for the retention of the funds from sale into a controlled moneys account.
I have also given consideration to the fact that the wife is under considerable financial strain at the present time and that there may be some incentive for the wife to sell the property in order to try and access the funds that will be made available to her by operation of the orders of this court if and when the B Street, C Town property sells.
On balance, noting that the husband has listed the B Street, C Town property without notice to the wife; noting that he commenced proceedings in the Local Court for the return of the Motor Vehicle 1 or, in the alternative, the sum of $85,000 in circumstances where he had willingly agreed to a restraint in relation to seeking a return of the Motor Vehicle 1; noting that the wife was awarded costs in relation to that and that the costs order remains outstanding; noting that, in those circumstances, it must have been apparent to the husband the wife would be unable to meet a debt of $85,000 and that, in any event, it was likely to have adversely impacted upon X; noting that the husband does not presently live in the B Street, C Town property and that he derives rental income from it, although he meets outgoings on the property, I consider that, on balance, the risk is greater that the husband would delay on the sale of the B Street, C Town property so as to stymie the orders that the court has made today, particularly in circumstances where he robustly opposes any order being made for an adjustment of the parties property interests. I consider that that risk is greater than the risk that the mother would capriciously and foolishly sell the property at an undervalued price in order to gain access to funds.
I will however, also require the wife, through her lawyers to notify the husband within 14 days of any proposed sale of the property of the price for which the property is to be sold in the execution of her duties as trustee for the sale of the property.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 26 March 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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Stay of Proceedings
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