DICKSON & SALLER

[2020] FamCA 190

FAMILY COURT OF AUSTRALIA

DICKSON & SALLER [2020] FamCA 190

FAMLY LAW – CHILDREN – Best Interests – where mother is to provide proof that elder child has been immunised – where mother is to arrange for younger children to be immunised.

FAMLY LAW – CHILDREN – Best Interests – where the changeover location is to remain unchanged.

FAMLY LAW – CHILDREN – Best Interests – where the mother's application for injunctive orders is refused.

FAMLY LAW – PROPERTY – Value of Property – Expert Evidence – where the parties are to jointly instruct a valuer to complete a valuation report.

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: 7 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 March 2020;  by receipt of written submissions filed on 1 April 2020 and 2 April 2020 and correspondence dated 3 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Richardson of Senior Counsel on 26 March 2020

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers by way of written submissions filed 1 April 2020

COUNSEL FOR THE RESPONDENT: Mr Looney of Queen's Counsel on 26 March 2020 and Mr Bunning of Counsel by way of written submissions filed on 2 April 2020

SOLICITOR FOR THE RESPONDENT: Barron Family Law

Orders

IT IS ORDERED THAT

1. Within 24 hours of the making of this Order, the parties jointly instruct Ms Q to complete the valuation report of the Dickson Group as at 30 June 2019, without providing the assessment of possible taxation consequences as outlined in the joint letter of instruction dated 31 October 2019.

AND IT IS FURTHER ORDERED THAT

1. Within 48 hours of the making of this Order, the mother provide the father with the following to establish that the child B, born … 2004, has been immunised such that he is compliant with the recommended National Immunisation Program:

   (a)       a copy of any government held record of his immunisation status; or

   (b)a copy of written certification from the medical practice or medical practitioner who administered immunisations to the child in order that he is complaint with the recommended National Immunisation Program.

2. The mother immediately arrange for the children C, born … 2007 and D, born … 2009, to be immunised at the W Medical Centre.

3. For the purposes of Order (3) and to facilitate the implementation of the same:

   (a)the administration of immunisations for each of the children shall occur as quickly as possible and as recommended from time to time by the children’s general practitioner, so as to ensure that each child is compliant with the recommended National Immunisation Program; and

   (b)where practicably possible, appointments for the administration of immunisations to each child should occur during the time they spend with their mother; and

   (c)the mother shall, within 24 hours of the appointment at which she first arranges for the administration of immunisations for each of the children to begin, advise the father in writing of this fact.

4. In the event that the mother does not comply with the terms of Order (2) above, the terms of Orders (3) and (4) will also apply to the child B, born … 2004.

5. By this Order, the W Medical Centre is hereby authorised to provide to the father, at his request and cost (if any), all information about the administration of immunisations by that practice to all of the children, with such information to include, but not be limited to, details of the proposed schedule of the administration of all vaccines to be administered in order for each child to be compliant with the recommended National Immunisation Program.

6. Save as is provided for by the Orders above, the Application in a Case filed 25 March 2020 and the Response to an Application in a Case filed 30 March 2020 are otherwise dismissed.

7. 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.

IT IS NOTED THAT

(A)The time the children spend with their father, pursuant to the operative parenting orders, occurs in both Queensland and New South Wales.

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

REASONS FOR JUDGMENT

1. On 26 March 2020, I adjourned the final hearing of this matter, then listed to commence on 5 May 2020, until 27 October 2020. I did so given the circumstances forced upon the parties and the Court by the current Covid-19 pandemic.

2. I also made directions to facilitate the determination of the issues raised in the Application in a Case which had then been lodged with the Court on behalf of Mr Dickson.

How is the yet to be competed report of the single expert forensic valuer to be dealt with?

1. In preparing for the intended May 2020 final hearing, the parties had jointly engaged Ms Q to value the Dickson Group (the Group) as at 30 June 2019. She is yet to finalise her report, although substantial work has been done in relation to it.

2. The parties are now in dispute about what should happen in relation to the completion of that report:

   a)Mr Dickson initially contended that the parties should jointly instruct Ms Q to complete the valuation report of the Group as at 30 June 2019 (exclusive of calculations in relation to the tax consequences of the sale of any assets in the Group); whilst

   b)Ms Saller’s first preference was that the parties jointly instruct Ms Q to provide an updated valuation of the Group as at 30 June 2020, with a retrospective relation of the same as at 30 June 2009 to be contained within that report.

3. Given that it is accepted that the parties will, in the future, jointly instruct Ms Q to provide her assessment of the possible taxation consequences of a sale of assets in the Group, I am not persuaded that it is necessary now to make such an order.

4. Mr Dickson’s evidence included that Ms Q has done significant work to date in preparing to issue a report: invoices totalling $44,078.10 (inclusive of GST) had been received for the work completed prior to 18 March 2020. Further, after Ms Saller’s solicitor unilaterally instructed Ms Q, on 18 March 2020, to halt immediately all work on the valuation and that no part of the same should be released to either party without joint instructions, Ms Q issued further invoices in a total sum of $22,078.10. 

5. Consequently, the cost of the parties to date of Ms Q’s work (as jointly instructed) is $66,156.20. Whilst the parties are to share equally in this, Mr Dickson is responsible for meeting this cost at first instance, with Ms Saller’s half share of the same to be taken into account at trial or in the making of final orders.

6. The evidence is that Ms Q has advised that her broad estimate of her fees to finalise the report is a further $10,000.00. She has also advised that she anticipates that it will cost the parties another $8,800.00 for her to complete her assessment of the relevant taxation consequences associated with the disposition of assets owned by the Group.

7. Whilst Mr Dickson wants Ms Q to finalise her report to date (exclusive of the consideration of the taxation consequences) and issue the same to the parties for their consideration, Ms Saller does not. She does not want to incur further expense in progressing the 30 June 2019 report simply so that they receive it, especially given that it is clear that this report will have to be the subject of update given the current circumstances.

8. I am not persuaded that the balance of convenience favours proceeding in the manner proposed by Ms Saller. I think the better course is that the parties jointly direct Ms Q to complete her work and issue the report that has already been jointly commissioned: in that way, any prospect that Ms Q might find herself having to further revisit, in the future, work which she has more recently done (at a potential additional cost to the parties flowing from the fact that she has, in a sense, been stopped part-way through finalising her work) is likely minimised and the parties will be able to receive the product (her report) for which they have already substantially paid.[1]

   [1]In the sense that Ms Saller has incurred a liability for her contribution to the costs of the same.

9. Whilst Mr Dickson advanced that he was prepared to bear solely the cost associated with Ms Q’s work to finalise the report, from the date of the orders made to resolve this dispute until Ms Q issues her report, I am not persuaded that it is appropriate that he solely bear the cost of her undertaking work which will, in any event, be required in order to enable the Court properly to consider the parties’ respective applications for final property settlement orders.

10. In arriving at the conclusions outlined in paragraphs 10 and 11 above,  I have also taken into account that: I see no difference in the nature of the work Ms Q will undertake now to complete her report now and that which she will undertake in the future to complete the valuation as at 30 June 2019; Ms Q has clearly nearly finalised the jointly instructed report in any event and I consider it appropriate that both parties be given access now to a product for which both have already substantially paid; I consider both parties will likely benefit from receiving access to the contents of Ms Q’s work to date now, as opposed to receiving the benefit of her work in the future (albeit that there will need to be further work done to take into account the impact on the Group of the current pandemic and the economic consequences of the same); the existing orders  require the parties to share equally in the costs of Ms Q’s costs, on the basis that Mr Dickson meet the same at first instance and Ms Saller’s contribution to the same be taken into account at trial or in the making of final orders, and I am not persuaded that there is proper reason to depart from the same; and I am concerned to ensure that there is no future possibility for either party to assert that Ms Q’s independent status as a single expert witness has been compromised in any way by the fact that only one party has paid for an aspect of her work in the matter.

Parenting issues

1. The remaining issues relate to matters pertaining to the parties’ children: 16-year-old B (born in 2004), 12-year-old C (born in 2007) and 10 year old D (born in 2009). 

2. The manner in which the Court is to approach, consider and determine applications for interim parenting orders is well-known and requires no further elucidation.[2]  Given the issues requiring determination, I do not intend to recite the relevant statutory considerations but, were relevant, have taken the same into account in arriving at my conclusions about orders which are in the children’s best interests. 

   [2]Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637.

The children’s immunisation

1. It is accepted that the two younger children are not immunised at all.  Their parents are agreed that they should now be immunised.

2. The mother said that B has already been immunised: the father’s position is that, upon receiving confirmation of this assertion, there would be no need for the Orders to include B but, absent receipt of confirmation from what I will describe as an independent source that B is immunised, he should properly be included in the orders made to facilitate his brothers being immunised.

3. I note that the mother has given evidence that she told the father in December 2019 that B has been immunised and that, in an email sent on 14 February 2020, she again confirmed to him that B had received his childhood vaccinations and informed that he had also been vaccinated for meningococcal.

4. Despite this, the clearly demonstrated absence of trust between these two parents is such that I consider it is in B’ best interests that the issue of his immunisation status is confirmed by the production of information from either a government source or the medical practice/practitioner (or each of these if there is more than one) responsible for the administration of his immunisations in compliance with the recommended National Immunisation Program.

5. If such information is provided, then it is unnecessary for the orders about immunisation to apply to B; if, however, such information is not provided, then I consider it in his best interests that the orders I will make to provide for the immunisation of his brothers apply to him also.

6. Having taken into account the competing submissions, I consider that orders in the terms I will make are those which are in the children’s bests interests because the same will ensure that: the process of immunisation commences immediately; such process is, in a sense, under the direction/control of only the mother subject to the recommendations of the medical practitioner administering the vaccines (so as to minimise what I regard as a significant risk, were it otherwise, that these two parents’ clearly demonstrated inability or unwillingness to compromise will stymie the immunisation process itself); both parents are able to obtain information specifically about the immunisation regime intended to be followed by the relevant medical practitioner; and that the focus is, properly, upon meeting that regime rather than any other peripheral matters or inconveniences.

7. In making the orders in the terms made, it is intended that both parents give priority to meeting the recommended immunisation schedule (rather than their own conveniences) but also that, where possible, appointments be taken such that the children are not required to travel unnecessarily.

8. It is also intended that, once the mother informs the father in writing that she has met with the medical practitioner she engages to immunise the children in compliance with the recommended National Immunisation Program, the father will be able, at his direct request and expense (if any), to obtain information about the proposed schedule of immunisations directly from that practitioner or practice: in that way, the father will know when to contact the practice to ask about the scheduling of the proposed immunisations, but the mother will not be required to provide him with a schedule.

Should changeover location be changed?

1. At present, changeovers which do not occur at Suburb V occur at a public service station at Suburb F. This has been the case since orders were made in December 2017. The mother proposes that this continue, whilst the father proposes that changeovers occur from each parent’s home, with the parent into whose care the children are transitioning to collect them from the other parent’s home at the start of their time with the children.

2. Having considered the submissions advanced on behalf of each of the parents, I am not persuaded that it is in the children’s best interests to change the manner in which non-Suburb V days changeovers have been occurring since December 2017. I am not persuaded that the children are likely to be placed at a greater risk of ill-health by a continuation of the same arrangements as have been implemented for more than two years. I accord greater weight to what I consider to be the importance of maintaining routines for the children; I also consider that, absent parental agreement about this proposed change and given the clearly established absence of parental trust, it is more likely than not that the children’s best interests will be better served by maintaining the requirement that their parents are present together in a public place, rather than at their respective homes, and by continuing to eliminate the possibility that the time taken by the children to transition between their parents’ care is elongated (as it might be with collections from homes).

Should the father be restrained from removing the children from Queensland?

1. At present, the children spend time with their father at both his home at Suburb N in Queensland and his rural home/farm at O Town in New South Wales. This arrangement has been long-standing.

2. So as to remove any doubt that the children spend time with him in both Queensland and New South Wales, the father seeks that a Notation is made in terms he particularises. Whilst not persuaded to make a Notation in those terms, I consider that it is in the children’s best interests that a Notation be made in the terms set out at the commencement of these Reasons, so as to promote understanding of the manner in which the operative parenting orders have historically been implemented.

3. In doing so I note that the father has said that he will comply with any public health directive from the federal, Queensland or New South Wales State governments with respect to any prevention of travel between O Town in New South Wales and Suburb N in Queensland.   Given this, if it is thought by the appropriate authorities that, for public health reasons, it is inappropriate to permit the children to travel with their father to O Town to spend time together there, the children will be able to spend time with him at his home in Suburb N.

4. The mother is also concerned that the children might become trapped in New South Wales and that the father will not act so as to ensure that the children are able to live and spend time with her at her home in Queensland in accordance with the existing parenting orders. She seeks, in essence, that, in the event that more restrictive government-imposed restrictions about travel between Queensland and New South Wales are imposed, the father be required to return the children to Queensland immediately and thereafter be restrained from removing them from Queensland until all travel directives about Queensland/ New South Wales travel are removed.

5. I decline to make injunctive orders in the terms sought by the mother. I do so because I consider that the terms of the existing parenting orders make it clear that, save for the time the children spend with their father pursuant to the same (whether this time occurs at his house at Suburb N in Queensland during the week in Suburb V terms so as to facilitate their attendance at a Suburb V in Queensland or his farm at O Town in New South Wales on weekends and during holidays), they are to otherwise spend time or live with their mother. As she lives in Queensland, these orders can only be put into effect by the children being in Queensland when they are to be in their mother’s care. Further, given that changeovers will be required by the unchanged operative parenting orders to occur at Suburb F in Queensland, the father is bound by the same to ensure that the children are present in Queensland at the time prescribed by the Orders for their transition into their mother’s care.

I certify that the preceding twenty-nine (29) paragraphs a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 April 2020.

Associate:

Date:              7 April 2020