Dickson and Saller

[2019] FamCA 835

FAMILY COURT OF AUSTRALIA

DICKSON & SALLER [2019] FamCA 835

FAMILY LAW – CHILDREN – Interim parenting – pending final hearing in May 2020.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Dickson

RESPONDENT: Ms Saller

FILE NUMBER: BRC 1522 of 2017

DATE DELIVERED: 25 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Richardson

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT: Ms R.A. Horsley

SOLICITOR FOR THE RESPONDENT: Barron Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. A copy of the Family Report of Mr K dated 1 October 2019 be provided to any professional engaged with the children or the parties (including but not limited to counsellors, psychologists or psychiatrists) and each parent has leave, pursuant to s 121 of the Family Law Act 1975 (Cth) to provide a copy of Mr K’s Report to that professional.

AND IT IS FURTHER ORDERED THAT

1. Order 11 of the Order made on 14 December 2017 is discharged.

AND IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The children shall spend equal time with each parent during each holiday period as agreed between the parents and failing agreement as follows:

   (a)the holiday period shall be calculated from the conclusion of school on the final day of term until the recommencement of school at the commencement of the actual school day when the boys attend school;  and

   (b)the number of nights in each school holiday period is used to calculate one half of the school holiday period and if there is an uneven number of nights, the father shall have the care of the children for the one additional night on the first occasion this occurs and each alternate occasion thereafter and the mother shall have the care of the children for the one additional night on the second occasion this occurs and each alternate occasion thereafter;  and

   (c)for Easter, June/July and September/October holiday periods each year, the parties will divide the days of each school holiday period equally between them with the children to spend time with each parent with the father for the first half of each school holiday period and with the mother for the second half of each school holiday period in 2020 and each alternate year thereafter and with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period in 2021 and each alternate year thereafter.

2. Notwithstanding any order to the contrary, the children C and D shall spend time with the parents:

   (a)for the Father’s Day weekend, from after school on the Friday prior to Father’s Day until before school on Monday following Father’s Day;  and

   (b)for Mother’s Day weekend, from after school on the Friday prior to Mother’s Day until before school on Monday following Mother’s Day.

3. The children, C and D, shall spend time with the parent with whom they are not otherwise living pursuant to the terms of this Order on C’s birthday (20 December) from 12 noon to 3.00 pm and on non-school days from 11.00 am until 3.00 pm.  The parent who wishes to spend time with the child whom they are not otherwise living with arrange for the collection and return of the child to Suburb F.

4. The children, C and D, shall spend time with the parent with whom they are not otherwise living pursuant to the terms of this Order on D’s birthday (22 October) from 11.00 am until 3.00 pm if it is a non-school day or from after school until 6.00 pm if it is a school day.  The parent who wishes to spend time with the child whom they are not otherwise living with arrange for the collection and return of the child to Suburb F.

5. If the children are not in the mother’s care on B’s birthday, the children C and D shall spend time with the mother from after school until 6.00 pm on a school day or from 11.00 am to 3.00 pm on a non-school day.

6. On the mother’s birthday, if the children C and D are not already in the mother’s care, the children shall spend time with the mother from after school until 6.00 pm on a school day or from 11.00 am until 3.00 pm on a non-school day.  The mother arrange the collection and return of the children to Suburb F to enable her to spend time with the children on her birthday.

7. On the father’s birthday, if the children C and D are not already in the father’s care, the children shall spend time with the father from after school until 6.00 pm on a school day or from 11.00 am until 3.00 pm on a non-school day.  The father arrange the collection and return of the children to Suburb F to enable him to spend time with the children on his birthday.

Changeovers

1. Where the changeover is to occur on a day that the children, C and D are attending school, changeovers are to occur at the school at which the children are enrolled from time to time, with the parent who is concluding the time with the children to deliver the children to school and the parent who is commencing their time with the children to collect the children from school.

2. Where the changeover is to occur on a day that the children, C and D are not attending school, changeovers are to occur at Suburb F, with the parent who is to commence spending time with the children to collect the children from Suburb F at the commencement of time and return the children to Suburb F at the conclusion of time.

Specific Issues

1. This Order is authority for H School to give each parent information about the children’s progress at school and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children at their request and both parents are at liberty to attend any school events such as parent/teacher interviews, sports carnivals and production.

2. This Order authorises the general medical practitioner or any other healthcare professional providing services to the children to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the children’s attendances with that professional including any diagnosis, proposed treatment or prognosis for the children.

3. This Order hereby authorises Ms G to continue providing treatment and support for the child, B.

4. This Order hereby authorises Dr P to continue providing treatment to the child, C and both the father and the mother shall follow the treatment recommendations of Dr P.

5. The parents shall notify each other within 24 hours of any change of address, email or telephone number including their mobile telephone number.

6. Each parent is restrained from:

   (a)changing the children’s school from H School without the written consent of the other parent;  and

   (b)criticising or denigrating the other parent or members of the other parent’s family to the children or in the presence of the children, with each party to use their best endeavours to ensure that no other person criticises or denigrates the other parent or members of the other parent’s family to the children or in their presence;  and

   (c)passing information or messages through the children to the other parent.

7. The parents shall communicate respectfully via an agreed email address to be provided from time to time by each parent to the other. 

8. Neither parent shall book and/or schedule arrangements for the children during any school holiday period they are in the care of the other parent.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT

1. The children’s time with their father during school terms shall recommence:

   (a)if the children have not spent time with the father during the last week of the school holidays:  on the first Thursday from after school starts for the term;  and

   (b)if the children have spent time with the father in the last week of the school holidays: on the second Wednesday from after school starts for the school term.

2. In the event that C and D are unwell or become unwell and unable to attend school or remain at school, the children shall remain in the care of the parent with whom they are living with pursuant to the terms of this Order and, if it is necessary to collect the unwell child from school, the parent with whom the children are living pursuant to this Order shall collect the child from school.

3. Each parent shall ensure that at each changeover for the children, the parent who is concluding their time with the children shall ensure that the children have all reasonably necessary items and belongings, including but not limited to, school uniforms, sporting uniforms and equipment, school books and equipment, general clothing and shoes as they require for the period of time that the children are to live with the other parent.

4. Both parents be at liberty to attend any school or outside of school function, extra-curricular activities, events, excursion or any special event associated with any activity.

5. Notwithstanding any other Order, for the Christmas school holiday period, the children shall spend time with the parents in two-week blocks of time as follows:

   (a)with the father: for the two-week period from 30 November 2019 to 14 December 2019;  and

   (b)with the mother: for the two-week period from 14 December 2019 to 28 December 2019 but subject to the operation of Order 25;  and

   (c)with the father: for the two-week period from 28 December 2019 to 11 January 2020;  and

   (d)with the mother: for the period from 11 January 2020 to 28 January 2020.

6. The children shall spend time with their father from 3.00 pm on 24 December 2019 to 3.00 pm on 25 December 2019, with the changeover to occur either at Suburb F or at the mother’s home at her election with the mother to convey that election to the father by email sent by 3.00 pm on 23 December 2019.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

A.The mother has no opposition to the father arranging for C to have tutoring, being in 2020, whilst in his care.

Orders

IT IS ORDERED BY CONSENT THAT

1. Paragraphs 1 and 2 of the Respondent’s Application in a Case filed 7 June 2019 and sealed 12 June 2019 is adjourned to the final hearing commencing on 5 May 2020.

2. The matter is listed for final hearing for nine (9) days before Justice Hogan commencing at 10.00 am on 5 May 2020, at the Family Court of Australia at Brisbane.

3. The Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00 pm on 7 April 2020.

4. Each party file and serve on each other no later than 4.00 pm on the date that is 28 days prior to the first day of the trial, being 7 April 2020:

   (a)an Amended Initiating Application/Response to Initiating Application which sets out all final orders sought only:

   (b)       one (1) consolidated affidavit of evidence in chief;

   (c)       an updated financial statement;

   (d)       one (1) affidavit of each witness intended to be relied upon at trial.

5. Each party file and serve on each other no later than 4.00 pm on the date that is 14 days prior to the first day of the trial, being 21 April 2020, a Case Outline setting out:

   (a)       a precise minute of the final parenting orders sought;

   (b)       a precise minute of the final property orders sought;

   (c)       a relevant chronology;

   (d)       a schedule of the asserted assets and liabilities  and

   (e)a list of affidavits and Applicants and/or responses intended to be relied upon at trial.

6. No party shall be entitled to rely upon any affidavit material and fled in accordance with these directions without the leave of the Court.

7. In the event that either party wishes to cross-examine an Expert at the final hearing, that party shall provide written notice to the Expert of such intention as soon as reasonably practicable, but by no later than 4.00 pm on 14 April 2020.

8. The parties file and serve a List of Objections to evidence by no later than three (3) business days prior to the commencement of trial.

9. The parties file and serve a Reply to Objections to evidence by no later than three (3) business days prior to the commencement of the trial.

AND IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. Within 60 days of the release of the updated valuation report for the Dickson Group, prepared by Ms Q as the single expert witness, the Applicant has leave to file an Application in a Case seeking the appointment of an adversarial witness to give evidence at the final hearing and the Applicant has leave to approach the Associate of the trial Judge in order to fix a date for hearing of that Application before the trial Judge if reasonably available.

2. The parties shall forthwith proceed to make application to the mortgagee of the home to jointly borrow up to the maximum limit that the mortgagee is willing to permit upon the security of the home (such monies as are borrowed are hereinafter called “the funds”) and they shall cause an offset account in their joint names with the mortgagee with such account to thereafter, pending further order, to be concluded in accordance with these orders.

3. The whole of the funds shall comprise an interim property settlement to Ms Saller, but on terms that until further order, the funds may only be drawn from the offset account and applied in relation to legal costs and disbursements, including experts’ fees in relation to these proceedings together with accountancy fees in respect of the preparation and finalisation of 2018 and 2019 income tax returns in respect of Ms Saller and the R Trust, unless otherwise agreed in writing as between the parties.

4. Mr Dickson shall promptly sign documents necessary to facilitate drawings upon the offset account permitted by Order 13 provided the request is accompanied by a copy of an invoice or account establishing that the payment is for a permitted purpose, but Ms Saller may redact any narrative in the document that she contends to be subject to legal professional privilege, and promptly do all acts and things to provide electronic authority to facilitate such transfers as necessary, if available.

5. Subject to Ms Saller completing and signing any document relevant to seeking obtaining the advance within 72 hours of it being submitted to her then if the funds are not made available within 30 days then at that time Mr Dickson shall pay by way of interim property settlement to the trust account of Ms Saller’s solicitors the sum of $20,000.00, but on terms that the parties shall sign all documents necessary to return these funds to him with then funds become available. 

6. The relief claimed in the orders number 14 to 16 inclusive in the Minute of Order set out in Ms Saller’s Case Outline document filed in these proceedings on 23 October 2019 be dismissed.

IT IS NOTED THAT

1. The Court notes that the parties have recently obtained a valuation of T Street, Suburb S (“the home”) which leads them to expect that they will have the capacity to borrow additional funds from the mortgagee of that property of a sum that may be up to approximately $345,000.00, borrowing up to a maximum 80% of value.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickson & Saller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1522 of 2017

Mr Dickson

Applicant

And

Ms Saller

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parents of the three children have today reached some agreement in relation to interim parenting orders to be made to regulate the parenting arrangements for the children between now and the trial of the matter in May of next year.  These arrangements need to be seen in the context of earlier interim parenting orders made by consent in December 2017, which prescribed a living arrangement for the children, C and D. 

2. The issues for determination today involve a consideration of each of the parent’s respective proposals to change those parenting orders. 

3. The manner in which the Court is to approach, consider and determine applications for interim parenting orders is well-known and requires little or no further elucidation: see the Full Court cases of Goode & Goode[1] and Banks & Banks[2].

   [1](2006) FLC 93-286.

   [2](2015) FLC 93-637.

4. The parents have reached agreement in relation to a number of the orders to be made.  I intend to outline those orders which are to be made by consent, but before I do so I think it appropriate that I simply discharge, I think, order 11 of the orders made on 14 December 2017 and replace it with orders otherwise to be made by consent. 

5. Order 11 simply deals with changeovers to occur at the children’s school, where appropriate: the parents have reached agreement in relation to changeovers during school term to occur to and from school where possible and, otherwise, at Suburb F at non-school times. 

6. It seems that, at least as I understand the submissions made by Counsel who appeared on behalf of each of the parents, orders are to be made by consent in terms of the following paragraphs, taken from the orders as outlined in the Case Outline filed on behalf of the father on 18 October 2019:

   a)paragraphs 11(a), 11(b), 11(c) as amended during the course of submissions;  and

   b)paragraph 13 – amended such that the children’s time with each of the father and mother on the Father’s Day and Mother’s Day weekends respectively will commence after school on the Friday of the weekend on which Father’s Day and Mother’s Day occur and conclude at the commencement of school on the Monday immediately following either Father’s Day or Mother’s Day;  and 

   c)paragraphs 14, 15, 16, 17 and 18 – save that the time prescribed will be from 11 am until 3 pm if it is a non-school day and that changeovers shall be facilitated at Suburb F;  and 

   d)paragraph 19 – I had understood it to be agreed between the parents that changeovers that occur other than at school occur at Suburb F at the commencement and conclusion of time;  and

   e)paragraphs 32, 33, 34, 35, 37, 39(a), 39(b) and 39(c). 

7. Further, it was agreed there be:

   a)an order in terms that the parents shall communicate respectfully, via an agreed email address to be provided from time to time by each parent to the other;  and

   b)an order that neither parent shall book and/or schedule arrangements for the children during any school holiday period they are in the care of the other parent.

8. I will make a further order that the children’s time with their father during school terms shall recommence:

   a)on the first Thursday after school starts – if the children have not spent time with their father in the last week of the school holidays;  and

   b)on the second Wednesday after school starts – if they have spent time with their father in the last week of the school holidays. 

9. The parties were not in agreement in relation to a number of other orders. 

10. I intend to make orders in terms of Clause 21 of the Case Outline.  I decline to accept the submissions made by Counsel for the mother as to the utility of the making of such order.  It seems to me appropriate and in the children’s best interests that clarity is provided in relation to their care arrangements if they are unwell whilst in the care of either of their parents, so as to remove the possibility that there will be any disagreement as between the parents about how that would be managed.

1. For the same reason, I also intend to make an order in terms of Clause 31 in the Case Outline, save that I will add the word “reasonably” after the word “all” on the second line of that Clause: again, so as to ensure that the children are provided with those items they might reasonably be thought to require for the time they are going to spend with each of their parents. 

2. To ensure that there is no difficulty in the future – noting the disputed accounts of what is alleged by each parent to have occurred at a sports day, as recounted by Mr K in his most recent report – I also intend to make an order in terms of Clause 38, so that both of the parents’ future attendance at school events is clearly permitted by orders made by the Court. 

3. There remains then, a number of additional issues about which the parents disagree. 

4. The first of those issues is the manner in which the children should continue to spend time with each of their parents during the school term.

5. Those arrangements have, to date, as I have already said, been regulated by the terms of Orders made by consent on 14 December 2017 – which have seen C and D live with each of their parents in a monthly regime, such that, for the first 14-day cycle, they spend time with their father from after school Thursday to before school Monday (or Tuesday morning if Monday is a public holiday) and, in the second 14-day cycle, they spend time with their father from after school Wednesday till before school Monday (or Tuesday if Monday is a public holiday). 

6. The Court is assisted by an updated Family Report prepared by Mr K, dated 1 October 2019.

7. In that report, Mr K outlines a recommendation that, in effect, different arrangements be made for each of C and D. 

8. That proposal was initially rejected by both of the children’s parents.  Each of them initially sought that, whatever orders be made for C and D, they ensure that those two children remain together in their time with each of them in each of their households. 

9. A relevant factor to note in understanding the considerations is also that the parties’ eldest son – who lives with his mother – is not the subject of any prescriptive orders for time: the orders which were made in December 2017 included an order that he is to be encouraged to spend time with his father.  Mr K’s report contains an account of that which has occurred to date.

10. During submissions made on behalf of the father, Mr Richardson of Senior Counsel advised that the father adopted and took up the recommendations made by Mr K.  That represented a change to the position as initially conveyed, whereby he proposed that it was in C and D’s best interests for them both to spend time with him each fortnight from Wednesday after school until Monday morning. 

11. The children’s mother proposes that C & D’s time with their father occur from Thursday after school until Monday morning, although that too represented a change of position, as her earlier position was that they spend less time than that with him.  However, she appears to have taken up at least part of Mr K’s recommendations.

12. It was submitted on behalf of the father that orders changing the existing arrangements should be made because, as is recounted in Mr K’s report, neither parent thinks they are working well and that they cause difficulty. 

13. However, it seems to me, from a perusal of the information contained within Mr K’s report, that C’s view (which has been conveyed by Dr P, upon whom he has attended) is that he is content with the existing arrangements.  He is a child who has some difficulties (as are summarised in Mr K’s report), but, despite those, it appears on the basis of the information conveyed by Dr P to Mr K, that, as I have said, he seems content with the arrangement and happy with it.

14. That is not the position in relation to D, who seeks to spend additional time with the father. 

15. Noting that the matter is to come to final hearing in May of next year and appreciating that C will start Grade 7 in January 2020 and the desirability, it seems to me, of maintaining stability and routine for him in particular and taking into account D’s wish to spend additional time with his father – but considering that, on an interim basis, it is not in the children’s best interests for them to be separated from each other as they transition between their parents’ respective households, given that they are already separated from their older brother – I am not persuaded to make any orders changing the term-time arrangements for the children from those which have previously been agreed between the parents, as reflected in the December 2017 orders, and which have been implemented by them since that time.

16. I turn now to consider the issue of holiday time during the end of year or Christmas school holidays for 2019/2020. 

17. The proposals proffered by each of the parents are as detailed in the respective Case Outline documents. 

18. Having regard to the contents of Mr K’s report and the expressions he records D having made to him, including an expression by him of his appreciation of C’s approach to the issue of holiday time also, I am persuaded, on an interim basis, that the children’s best interests will be met by affording to them the opportunity to spend time with each of their parents in two-week blocks in the manner proposed by the father’s proposal. 

19. I consider that that proposal will require the children to undertake less changeovers than would be the case in relation to the proposal advanced by the mother.  I also consider that it reflects and records an appreciation of an expression of view recorded by Mr K from D, at least. 

20. In relation to the manner in which Christmas Day is to be dealt with:  it is clear, given the reality of the absence of interaction between B and his father at present, that C and D will be separated from B at some time on Christmas Day and will spend time together with their father without B on that occasion.  The question, then, is whether it is in their best interests for that time to occur for a 24-hour period commencing after noon on Christmas Day (as the mother proposes) or whether it should occur from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day (as the father proposes).

21. I take into account the submissions made by Mr Richardson SC on behalf of the father to the effect that, to date since separation, the children have not had the opportunity to experience and celebrate Christmas morning in their father’s care. 

22. For that reason, it seems to me to be in their best interests to afford to them that opportunity at this time, noting, as I have said, that they will, of course, have the opportunity to celebrate Christmas Day with their brother in their mother’s care. 

23. For those reasons, then, I intend to make an order for C and D to spend time with their father from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day.

24. A further issue about which the parents are not in agreement is the issue of whether the children should undertake overseas travel at this time.  The mother opposes that, predominantly on the basis of C’s anxiety.  The father seeks to be able to travel overseas with the children and notes that they had previously undertaken overseas travel prior to the parental separation. 

25. Mr K opines in his report, in a sense, that it may be best to delay the implementation of overseas travel – although I note the submissions made by Mr Richardson SC to the effect that expressions of opinion by Mr K about the duration of overseas travel needed to present benefit to the children would appear to be outside the expertise Mr K possesses.

26. I note that, during his interview with Mr K, D expressed a wish and a desire to be able to travel overseas with his father.  He expressed some comments about being able to go to South Asia and elsewhere, I think, to undertake diving. 

27. I am not persuaded at this stage to make an order, in the face of the mother’s opposition, to permit the children to travel outside of Australia.  That is not because I consider, at this stage, on the evidence before me, that the father represents a flight risk.  Rather, it reflects my assessment that the children, and in particular C, will, for the first time, be spending holiday time with each of their parents in an alternating fortnight block of time.

28. There is nothing in the evidence or contained within the submissions made by Mr Richardson SC to suggest that there is any pressing need for overseas travel other than, of course, to afford the children the benefit and many opportunities that are, no doubt, associated with the opportunity to travel overseas.  However, I am not persuaded that the children will suffer any detriment if they are unable to do this overseas travel prior to the final hearing in May next year. 

29. For those reasons, then, I decline to make the orders sought by the father in relation to overseas travel.

30. So to give effect, then, to those reasons, the additional orders which I will make are in terms of clauses 11(d)(i) to (iv), with the additional order to deal with the Christmas Eve/Christmas Day period to be in the terms that the children shall spend time with their father from 3.00 pm on 24 December 2019 to 3.00 pm on 25 December 2019.

31. Given the issue I raised with the parties in relation to a tutor for C, it seems to me to be appropriate to record a notation that the mother has no opposition to the father arranging for C, from 2020, to have tutoring whilst in his care.  I otherwise decline to make any order, given that it was an issue that I raised and given the submissions made by Ms Horsley on behalf of the mother, outlining the mother’s rationale for investigating what is the appropriate arrangement for C for next year in relation to that issue. 

32. Insofar as any other orders have been sought by either parent that have not been made, that is because I am not persuaded at this time that, on an interim basis, they are in the best interests of the children and/or because the issue they seek to address has already been dealt with in earlier orders made.  For example, the issue of telephone communication is already dealt with by the pre-existing order and I do not intend to make an order discharging that order or to make any new orders in relation to the issue of telephone communication. 

33. The other orders that will be made, by consent, are those in relation to the property aspects of the applications that were listed for determination today, together with the orders on the document headed “Trial Management Orders” intended to ensure the matter is ready to proceed to hearing next year.

I certify that the preceding forty-three thirty (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 October 2019.

Associate:     

Date:              25 October 2019