Denning & Denning

[2008] FamCA 268

FAMILY COURT OF AUSTRALIA

DENNING & DENNING [2008] FamCA 268

FAMILY LAW  -  CHILDREN  -  unilateral relocation by wife  -  ordered to return in interim  -  interim parenting orders 
FAMILY LAW  -  PROPERTY  -  interim orders  -  sale of investment properties  -  payment of accounts

Family Law Act 1975 (Cth)

HUSBAND: Mr Denning

WIFE: Mrs Denning

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 March, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms S.L. Johns

SOLICITOR FOR THE HUSBAND: Maeve O’Brien & Associates

COUNSEL FOR THE WIFE: Mr A.F. Skerlj

SOLICITOR FOR THE WIFE: Tolhurst Druce & Emmerson

INDEPENDENT CHILDREN’S LAWYER Bowlen Dunstan & Associates

Orders

1. That all previous parenting orders and injunctions in respect of the child of the marriage L (“the child”) born … March, 2000 be discharged. 

1. That until further order the husband and wife have equal shared parental responsibility for the child. 

1. That on or before 17 March, 2008 the wife do all acts and things necessary to return the child’s residence to the former matrimonial home at R or such other residence as she chooses,  PROVIDED THAT  it be within a fifteen kilometre radius of S Primary School in R. 

1. That until further order the wife have the sole use and occupation of the former matrimonial home so long as that remains the residence of the child during times in which she resides with the wife. 

1. That until further order the child live with the husband :

   (a)during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, commencing on 14 March, 2008 and recommencing on the first weekend of each school term; 

   (b)during school terms, from the conclusion of school on Thursday until the commencement of school on Friday in each alternate week, recommencing on the second Thursday of each school term;

   (c)for one week during each of the school term holidays as agreed between the parties, and in default of agreement, from 10:00 am. on the first Saturday until 6:00 pm. on the middle Saturday;

   (d)for one half of the long summer school holiday as agreed between the parties, and in default of agreement, from 10:00 am. on 1 January until 6:00 pm. on 17 January;

   (e)if Fathers’ Day falls on a day on which the child would not otherwise live with the father, from 10:00 am. to 6:00 pm. on Fathers’ Day;

   (f)if the child’s birthday falls on a day on which she would not otherwise live with the father, for three hours on her birthday at times to be agreed, and in default of agreement :

   (i)if the birthday falls on a school day, from the conclusion of school until 7:30 pm.;  and

   (ii)if the birthday falls on a non-school day, from 10:00 am. until 1:00 pm.;

   (g)from 4:00 pm. Christmas Eve to 4:00 pm. Boxing Day in 2008 and each alternate year thereafter;

   (h)from 4:00 pm. Christmas Day until 4:00 pm. Boxing Day on Christmas Day in 2009 and each alternate year thereafter;

   (i)by telephone on each Tuesday and Thursday, a call to be made by the husband between 6:30 pm. and 7:00 pm. and the wife to do all things reasonably necessary to facilitate that telephone communication, commencing on Tuesday 25 March, 2008;  and

   (j)at such other times as are agreed between the parties.

1. That until further order the child live with the wife at all times other than those set out in paragraph (5) hereof, and, in addition :

   (a)if Mothers’ Day falls on a weekend on which the child would not otherwise live with the mother, the husband shall return the child to the wife at 10:00 am. on Mothers’ Day;  and

   (b)if the child’s birthday falls on a day on which she would not otherwise live with the mother, the mother spend time with the child :

   (i)if the birthday falls on a school day, from the conclusion of school until 7:30 pm.;  and

   (ii)if the birthday falls on a non-school day, from 10:00 am. until 1:00 pm.

1. That until further order changeovers which do not occur at the commencement or conclusion of a school day, take place at the wife’s residence, or such other place as the parties agree, save that the husband shall collect the child from the primary school she is attending in C at the conclusion of the school day on 14 March, 2008. 

1. That the husband and wife do all things necessary to forthwith re-enrol the child in S Primary School, R, and ensure her attendance at that school on 17 March, 2008, and that the child remain enrolled at that school until further order.

1. That until further order each of the parties be at liberty to attend the child’s school for events, activities and functions routinely attended by parents. 

1. That the husband serve a sealed copy of this order on the principal of S Primary School.

1. That until further order the husband and wife ensure that the child continue to attend upon her treating medical practitioner or such other professional as recommended by him or her to deal with the child’s enuresis.

1. That until further order the husband and wife be and are by themselves, their servants and agents, restrained from :

   (a)discussing these proceedings in the presence or hearing of the child or allowing a third party to do so;  and

   (b)denigrating the other in the presence or hearing of the child or allowing a third party to do so. 

1. That until further order each party notify the other forthwith of any illness or injury sustained by the child whilst in his or her care, if that illness or injury requires an attendance upon a medical practitioner or other healthcare professional. 

1. That until further order, if either party is hospitalised or is otherwise unable to care for the child for a period greater than 72 hours, the child live with the other parent during the period of incapacity. 

1. That within fourteen days the husband and wife do all things necessary to effect the sale of the following real properties :

   (a)unit 4/57 …;

   (b)unit 1/59 …;

   (c)unit 1/46 …;

   (“the investment properties”).

1. That for the purpose of each of the sales, and subject to any agreement to the contrary between the parties :

   (a)the selling agent be M & Co.;

   (b)the conveyancing be undertaken by E Conveyancing;

   (c)the sales be by private treaty or such other method as recommended by the selling agent;

   (d)the wife do all things necessary to provide withdrawals of caveats lodged over the investment properties;  and

   (e)there be liberty to apply with respect to the terms and conditions of the sales of the investment properties. 

1. That the proceeds of each of the sales of the investment properties be applied as follows :

   (a)first, to pay the cost and commission of the sale;

   (b)second, to discharge all mortgages secured over the title of the property sold;  and

   (c)third, the balance then remaining to be paid into an interest-bearing account in the name of both parties, held in trust with the husband’s solicitor until further order (“the trust account”).

1. That until further order the husband do all things necessary to ensure that the nett rental income received from the managing agent in respect of the following properties be paid to the trust account :

   (a)unit 2/46 …;

   (b)unit 3/46 …;  and

   (c)R2 property.

1. That until further order, sums held in the trust account be applied as follows :

   (a)to pay instalments of mortgage as and when they fall due in relation to the following properties :

   (i)the investment properties;

   (ii)the former matrimonial home at R;

   (iii)C property,

   (iv)unit 2/46;

   (v)unit 3/46;

   (vi)R2 property;

(b)all rates, outgoings and insurances in respect of the properties described in sub-paragraph (a) hereof;

(c)all necessary maintenance and other expenses in respect of the properties described in paragraph (19)(a) hereof which are rented, in the event those expenses have not been paid from the gross rental by the managing agent in respect of the relevant property;

(d)the minimum payment due on the Citibank credit card in the husband’s name;

(e)the lease payments in relation to the Nissan Maxima and Kia Carnivale motor vehicles in the possession of the parties;  and

(f)such other expenses as may be agreed upon in writing between the parties.

1. That payments made pursuant to paragraph (19) hereof be characterised in due course by the trial judge.

1. That until further order the husband account to the wife, in writing and on a monthly basis, in respect of income and outgoings relating to the properties described in paragraph (19)(a) herein, and such written account be provided no later than the fourteenth day of the following month, and the first such account be provided on 14 April, 2008. 

1. That the conciliation conference date of 10 April, 2008 at 2:15 pm. be vacated. 

1. That the parties attend a conciliation conference at 11:00 am. on 29 May, 2008. 

1. That all applications for interim orders be otherwise dismissed.

1. That the applications for final parenting and financial orders be placed in the pool of cases awaiting allocation of trial notice directions. 

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

AND THE COURT NOTES

A.That the husband agrees to undertake family therapy with the child E born …May, 1992 as recommended by Dr. D with such family therapist as nominated by the independent children’s lawyer.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Husband

And

MRS DENNING

Wife

REASONS FOR JUDGMENT

1. Before the court are applications for interim financial orders and interim parenting orders.  The parties lived together from 1996, married in October 1999, and separated in unfortunate and contested circumstances on 5 December 2007.  The family had been living in a home in R. 

1. The husband is a professional by occupation.  He ceased regular paid employment in August 2006 and, after that time, his energies, and the energies of the wife, too, appear to have been poured into the development of a portfolio of investment properties.  There are six investment properties, all subject to mortgage.  The family also have a holiday house at C; that, too, is subject to a mortgage.

1. The parties do not agree about what occurred on 5 December, 2007.  The wife’s evidence was of erratic and aggressive behaviour by the husband, directed at her and the child E.

1. The circumstances of the parties’ separation gave rise to an application by the wife for an intervention order.  An ex-parte intervention order was made and served on or about 24 December, 2007.  On 16 January 2008, an interim order was made; a copy of it is annexed to the initiating application filed by the wife.  It notes that the defendant to that application, who is the husband, was at court.  That order lasts until 9 May 2008.  On the same day, an interim order was made on an application brought by the husband against the wife.  I am advised that on that date the wife's application for an intervention order, naming her, the parties' daughter L, and her daughter E, as aggrieved family members, is to be listed for hearing, as will be the application filed by the husband against the wife.

1. The parties have a daughter, L, who was born in March 2000.  The wife has a daughter, E, who was born in May 1992.  The husband has played a stepfatherly role to E since she was, on the material before me, about four or five.  It is clear that events on the day of separation have had a profound effect upon the parties' own relationship, and on the husband's relationship with L. 

1. The case was listed for a case assessment conference, on 5 February.  On that date an independent children's lawyer was appointed.  Interim orders were made providing for L to spend time and communicate with the husband on each alternate Saturday, from 9 am until 8 pm, each Thursday from 5 pm until 7 pm, and at other times as agreed.  Without admitting the necessity for it, the husband agreed to an order that his brother not be present during any period L is with him.  Another order restrained both of the parties from removing L from the State of Victoria.  A number of notes to that order reflect the level of dispute between the parties at that time:  the husband's position was that the wife had refused contact with L since separation; the wife's position was that, since separation, the husband had done little to pursue any contact with her and she alleged concern about him having overnight contact with the child.

1. The parties agreed to obtain a report from Dr D, and that report is before the court today.  He saw the parties on 13 February and 21 February.  He summarised the position as a sad account of loving parents who eventually succumbed to a variety of forces diminishing, and ultimately ending, the viability of their marriage.  He was able to say, having spent time with each of the parents, that both then described the other in fundamentally positive terms.  Both, to him, viewed the other as having deteriorated over recent times and the account they gave to him led him to believe that both had had a long history of devoted and capable attention to the children. 

1. The account the wife gives to the court today falls far short of the account she gave Dr. D.  On 6 March the wife was living in the former matrimonial home in R, the husband having moved to his mother's home, also in R, when the parties separated.  On 6 March the husband was advised by the wife's solicitor that the child would not be provided to spend time with him that day, because she was with her mother and sister at the parties’ holiday house at C;  make up time was offered in the coming weekend.  It transpired that two days earlier, on 4 March, the child was removed from S Primary School in R, where she is in grade 3, enrolled at C Primary School on the same day.  Likewise, E had been taken from her secondary school and enrolled in a local secondary college.  Far from a short stay at a holiday home, the wife had unilaterally relocated the children’s residence. 

1. On the evidence of Dr D I can find that E is a very intelligent and, probably, precocious young woman - I do not use that word in a derogatory sense - who has been able to take advantage of programs designed for gifted students and has a maturity beyond that of many young people of her age.  That said, Dr D’s report also illustrates the fact she is still an adolescent, and been embroiled in these matters to an extent which is not appropriate for any child, however gifted, of her age.

1. The wife proposes that she remain living with the children at C and that the husband's time with the child be arranged around that.  It is her submission that the child should live with her, and the father should have contact only on alternate weekends, throughout school terms and throughout all holiday periods.  The only extra contact proposed would be a period of less than 24 hours, around Christmas. 

1. The husband's position is that the child should return to live in R.  She should live each alternate week with the mother in the former matrimonial home, and live with him during the other weeks.  He seeks that she spend half of school holidays with him, and time on special days.  He sought a note to the order that he would agree to undertake family therapy with E, as recommended by Dr D, with a family therapist nominated by the independent children's lawyer, and would seek to have E spend time with him.

1. The independent children's lawyer supports an order requiring the mother to relocate L’s residence to R.  He does not support an equal shared residence arrangement at this time but proposes L spend three nights with her father on each alternate weekend, and one night in the alternate week during school terms, plus half of school holidays, and on special occasions.

1. The ICL has advised that he spoke to Dr. D today.  Dr. D knew nothing of any intention to move the children’s residences to C;  the wife said nothing of it to him.  The ICL communicated Dr. D’s perspective, which is that L should return to Melbourne and that he is concerned at the impact of the wife’s decision to relocate.

1. I have read the affidavit filed by the husband, the two affidavits filed by the wife, the various applications and the report of Dr D. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. They include the effect on children of any change in their circumstance and the effect of anything that has a capacity to impact on their relationships with parents, siblings and other people of importance to them.

1. It is not disputed that the mother has experienced significant health problems since 2004 when she suffered a significant injury to a hip which resulted in chronic pain and periods of hospitalisation for pain management and treatment.  She also experienced psychiatric problems and was diagnosed with bipolar disorder in 2005, and had some periods of hospitalisation arising from that. 

1. I note Dr D’s opinion that he draws no conclusions about either parent in relation to the alleged psychological symptoms suffered by either of them.  Before him, both seemed stressed and tired but not clinically symptomatic in their presentation.  In his opinion, the wife's bipolar manifestations could not be extricated from her history of chronic and intractable pain and equally intractable marital problems, and he did not view them as current diagnostic entities that would impair her parenting abilities.  He saw the husband in similar terms.  The evidence about the husband is raised by way of allegations of the wife of a deterioration in his mental state in the period leading up to the separation, and her account, and indeed E’s account, to Dr D of the actual circumstances that precipitated the separation.

1. On the material before me, the mother's unilateral decision to remove the children to the family holiday house at C, without any notice to the husband, and only a couple of weeks after seeing Dr D (when the possibility was not raised) is of significant concern to me.  It is relevant to her understanding of parental responsibility.  The reasons she advances as justifying her actions (such as being able to do her shopping by 9 o'clock, everyone being friendly and helpful, a healthy country lifestyle, and saving money) do nothing to mitigate my concerns. 

1. I have no hesitation in finding that it is in the child’s best interest that her residence be returned to Melbourne.  If, in the long term, the wife seeks her residence, and to relocate that residence away from R, that proposal will need to be supported by proper material, on notice, and a court will decide it in due course.  But I have no hesitation in finding that, at this stage, she should return.  Neither parent seeks any order other than that they have equal shared parental responsibility for the child.  That means that both must be involved in major decisions about her life including, to the extent it impacts on her capacity to spend time with both parents, where she lives. 

1. In terms of the residence arrangements, I propose to make orders which will provide for her to live with each parent at specified times, rather than an order she live with one and spend time with the other.  That may be seen, in some circumstances, as a semantic distinction but it can give force to the philosophy behind the legislative provisions which stress the importance to children of having a meaningful relationship with both parents and the importance of courts considering whether shared residence is in their best interests at a particular time. 

1. For the reasons advanced by the independent children's lawyer, I do not propose at this time to make an order for equal residence.  What weighs in the scale with me at the moment is L’s relationship with E.  The husband's counsel is right in saying it is not a question of one taking priority over the other, but E’s relationship with L is an important one.  There is potential for E’s current views about the father to impact adversely on L and it is to be hoped they may be addressed by some form of therapeutic intervention.  But at this time I do not find it appropriate for L to have one week in two away from her sister.

1. Having regard to the recommendations of Dr D, which are supported by the independent children's lawyer, I propose to order that during school terms, L live with the father from the close of school on Friday to the commencement of school on Monday in one week, and from the close of school on Thursday until the commencement of school on Friday in each alternate week.  I also propose to order that school holiday time be shared.  On the material before me, I can see no basis for the wife's submission as to the time L should spend with the husband, save a punitive one.  I could not find it to be in L’s interest to spend only alternate weekends with her father for the whole of the year , including school holiday periods and the proposal raises concerns about the wife’s understanding of the scope of parental responsibility.

1. Orders will provide for L to spend time with both parents on Mother's Day and Father's Day, and on L’s birthday if L is not otherwise with them.  An order will provide for L to be with the husband from 4 pm on Christmas Eve to 6 pm on Christmas Day in 2008 and each alternate year thereafter, and with the wife for the same period on Christmas Day in 2009 and each alternate year thereafter.  It is better for there to be a framework into the future, but these are interim orders and the issue can be reconsidered at trial.    

1. I do propose to make orders for telephone communication as proposed by the independent children's lawyer.  Changeovers will generally take place at L’s school and otherwise at the wife's residence.  Orders will provide for both parties to do everything necessary to re‑enrol the child at S Primary School and I will make orders to ensure that each parent has access to school reports and photographs, and can attend events, activities and functions routinely attended by parents.  Both parties will be restrained from discussing the proceedings in the presence or hearing of the child, or allowing any other person to do so, and denigrating the other in the presence or hearing of the child. 

1. I do not propose to enjoin the father from bringing the child into contact with his brother.  Having read the wife’s generalised assertions, I say only that psychiatric problems do not automatically disqualify a person from spending time with a child.  The wife’s personal experience in this regard does not seem to have led her to reflect on that issue.  The husband is to share parental responsibility and the court must trust him to take appropriate steps to protect the child.

1. I propose that the child’s first period with her father commence at the conclusion of school on Friday.  He will collect her at C and she will be with him for the weekend.  The wife must relocate over the weekend.  The husband will return the child to S Primary School on the morning of Monday, 17 March and the wife must be in a position to pick her up at the end of the school day on 17 March. 

1. That brings me to the property applications. The husband initially sought that all investment properties be sold. He now seeks that three only be sold. The wife deposed that “only two or three” needed to be sold.  No reason has been advanced why the three properties should not be sold, as proposed by the husband. I do propose to make property orders, broadly, as sought by the husband. Orders will provide for the managing agent to credit net rental payments into the trust account, which is to be established through the husband's solicitor.  Into that trust account will go those rental payments plus the net proceeds of the sale of the three investment properties, as and when they are sold.

1. In terms of payments out of the trust account, they will be as set out in paragraph 16 of the minute tendered by the husband, save that necessary expenses of the investment properties (over the net rentals) will be included.  Further, the minimum payment on the Citibank credit card can be taken from those funds.  The husband must account in respect of the investment properties by a monthly statement provided to the wife's solicitors by the fourteenth day of the following month. 

1. Although I did not foreshadow this with counsel for the husband, I propose to make an order that, until further order, the wife have the sole use and occupation of the former matrimonial home.  He sought her return to that home with the child, and she is entitled to security of occupation until all applications are determined.  She may, of course, elect to live elsewhere, but it must be within a fifteen kilometre radius of L’s school.  In relation to the wife's request that the phone be put into her name because she believes the husband is tracking her calls, I do not propose to make any order in relation to that at this time.

I certify that the preceding
33 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.