DELANEY & DELANEY

[2014] FCCA 3186

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANEY & DELANEY [2014] FCCA 3186

Catchwords:
FAMILY LAW – Parenting.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR DELANEY

Respondent: MS DELANEY

File Number: DGC 2631 of 2014

Judgment of: Judge Small

Hearing date: 5 November 2014

Date of Last Submission: 5 November 2014

Delivered at: Dandenong

Delivered on: 5 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Goddard

Solicitors for the Applicant: Portelli & Co

Counsel for the Respondent: Mr Allen

Solicitors for the Respondent: Trapski Family Law

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. There be interim parenting and property Orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 5 November 2014 (“the Minute”).

2. The lawyers for the Applicant husband engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

3. The children [X] born 2001, [Y] born 2002, [Z] born 2004, [W] born 2006, and (“the children”) spend time and communicate with the father as follows;

   (a)In week one from after school to 7.30pm on Monday and from after school on Friday until before school Monday; and

   (b)In week two from after school Thursday until before school Friday.

   (c)In the long Summer holidays from 12 January 2015 until 26 January 2015 with the father to be on leave from work in that period and ensure the children have everything they need for the commencement of the 2015 school year.

4. That the children be at liberty to travel with the Mother to Country A and Country B from 8 December 2014 to 26 January 2015.

5. The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Dandenong Registry on 26 February 2015 at 9.15am (“the Conciliation Conference”).

6. The parties ensure that no later than seven (7) days prior to the date fixed for the Conciliation Conference, each party send to the other, and the nominated Registrar or organisation:

   (a)an Outline of Case document;

   (b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute;

   (c)valuations of any superannuation interests;

   (d)a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (e)written confirmation by each party or their lawyer that:

   (i)all relevant documents have been exchanged between the parties; and

   (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness. 

7. Unless by 30 December 2014 the parties have confirmed in writing an agreement as to the current market value of matrimonial homes, Property C and Property D, then the parties forthwith do all acts and things necessary to obtain a joint sworn valuation by an appropriately qualified person, the costs of same to be borne equally by the husband and such valuation to be filed with the Court no later than seven (7) days prior to the Conciliation Conference and the wife reimburse the husband half the cost of the valuations from the wife’s proceeds of any property settlement.

8. The matter be adjourned to Federal Circuit Court of Australia on 26 February 2015 at 2.15pm for Mention.

9. The matter be adjourned to Federal Circuit Court of Australia on 25 November 2015 for Final Hearing, with an estimated hearing time of 3 days (“the Final Hearing”).

10. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

11. Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

    (a)one affidavit setting out any further evidence in chief; and

    (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

12. Each party must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

    (a)Property;

    (i)a list of the documents to be relied upon;

    (ii)a brief chronology;

    (iii)a list of all of the assets, liabilities and financial resources claimed to be part of the asset pool;

    (iv)a list of contributions claimed or contended for;

    (v)a list of other factors relied upon (s.75(2) factors);

    (vi)the percentage adjustment contended for;

    (vii)the main contentions on disputes as to:  

    (viii)what items are to be included in the pool;   and

    (ix)the value of each asset in the pool;

    (x)a statement of the precise orders sought;

    (xi)(if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and

    (xii)one table between the parties setting out the values of assets and liabilities to be relied on at the hearing, each to be marked “agreed” or “in dispute”.

    (b)Parenting;

    (i)a list of the documents to be relied upon;

    (ii)a brief chronology;

    (iii)an outline of contentions with respect to:

    1.   whether the presumption of equal shared parental responsibility applies (s.61DA),

    2.   the considerations relevant to equal time and substantial and significant time (s.65DAA);

    3.   each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    4.   other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    5.   any other matters  relevant to the decision; and

    6.   a statement of the precise orders sought.

13. No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

14. No later than 7 days before the Final Hearing each party advise the Court of the documents he/she seeks to rely on at Trial.

15. No later than 2 days prior to the Final Hearing an agreed list of factual issues in dispute be provided to the Court by the parties.

16. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the children [X] born 2001, [Y] born 2002, [Z] born 2004, [W] born 2006, (“the children”) attend upon a Family Consultant nominated by the parties to be paid for at first instance by the Father and Mother in equal shares.

17. The Family Report to deal with the following matters:

    (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

18. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.  

19. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

    (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    (c)any family violence intervention or restraining orders currently in force.

20. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

21. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

22. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

IT IS DIRECTED THAT:

1. The Minute be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Delaney & Delaney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2631 of 2014

MR DELANEY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Delaney comes before me today in a busy duty list for the first return date of the husband’s application for final orders.  The wife has filed a response and an affidavit and financial statement.  These are children’s and property proceedings.  But the issues that have come before me today for determination are parenting issues and there are really only two of them. 

2. The first is whether there should be an eleven/three fortnight or a nine/five fortnight, so that the children would either live with the mother for 11 nights and the father for three nights, which is the mother’s proposal, or nine nights with the mother and five nights with the father, which is the father’s proposal.  That is one issue in contention.

3. And the other is whether the children should be allowed to go on an overseas holiday with the mother from 8 December to 26 January.  The father says that he does not consent to the mother going overseas.  He says that the money that it would cost is excessive and it would be “devastating financially” for the parties’ financial situation were she to go.  The mother says that she paid for the tickets by selling shares that she deposes that she owned before the relationship started and that she had bought for the very purpose of travel.  She says that it was agreed between the parties that they would go on this holiday before the date of separation, which was in mid-2014.  The father says, “No, we did not agree on that; I had reservations about it and there was never any firm agreement.”  There was correspondence between the parties’ solicitors in July of 2014 about that issue.

4. I have now been advised that the shares whose sale has financed the tickets that have been bought for this holiday were, in fact, bought after the relationship began, but before the children were born.  Nevertheless, it is still the mother’s evidence that they were bought for that particular purpose.

5. As I said, the solicitors exchanged correspondence not long after the separation, in which the father raised the issue of the holiday and of his ongoing time with the children.  He was at that point not in a position to have the children overnight as he was in temporary accommodation.  He is now able to have them overnight and he says, as I said, that he should have them for five nights a fortnight.  The mother says three nights a fortnight.

6. The holiday was paid for in September.  That is after these proceedings were issued and, in fact, these proceedings were issued on 29 August 2014, by which time I notice that the wife did have the knowledge that the husband was not agreeing to the holiday.  The length of the holiday is some seven weeks, I think, and the children would miss at least one and probably two weeks of school in order to go overseas.  I have to say, that is not an unusual thing for children to do at this time of year, although one would hope that it did not happen regularly at that time.

7. I have had a look at the financial issues and it appears that there is some $900,000 or so in equity in various properties and that there is a quite large disparity between the parties’ superannuation entitlements.  These proceedings, as I said, are for property settlement as well as for children’s orders and I made the point to counsel – and it was conceded by the wife’s counsel – that she would have to account for the sale of the shares in any final property proceeding.

8. She deposes that the shares were worth something like $24,000 – something like that – at 29 October.  That is a miniscule amount compared to the equity that the parties have in various properties.  In those circumstances, where I acknowledge that it is a problem – it is a matter in dispute – but the tickets have been bought.  From what I can see on the itinerary and the airline information, some of them have permitted change dates; some of them do not.  Some of the material suggests that accommodation costs that have been paid for would be lost if the children were not able to go.

9. The children are of an age where overseas travel cannot be anything but an advantage to them.  They are well able to accept and understand the importance and feel all the excitement of the possibility of overseas travel and particularly in relation to going somewhere like Country B.

10. This is not one of those cases where the law, as it is set out in the Family Law Act, is particularly useful. When I am making children’s orders, the Act tells me very clearly in black and white that I must take the best interests of the children as the paramount consideration when I am making any children’s orders – any parenting orders. And then s.60CC sets out the factors that I have to take into account.

11. When I look at all those factors, they are not really useful in terms of these orders.  It is not suggested that there be no time between the children and their father.  It is just the amount of time that is in dispute.  And the holiday is in dispute in terms both of the cost, having used a marital asset to pay for it, and the issue of the father’s time with the children over the long summer break.

12. But the issues set out in s.60CC really do not assist me very much in that at all. Therefore, the parties being unable to come to agreement by themselves, I have had to make an decision which I think is in the children’s best interests and is, effectively, a fair decision. That is the way I have approached this, although I have looked at and I did take note of the s.60CC factors in coming to this decision.

13. I might also note that the parties have made considerable and detailed orders by consent in relation to the children’s care – that it is only the two matters that I have mentioned where the orders will not be by consent. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 7 October 2015