Donato and Donato
[2011] FMCAfam 199
•22 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONATO & DONATO | [2011] FMCAfam 199 |
| FAMILY LAW – Children – Parenting Orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the children – equal time with each parent – whether equal time with each parent would be in the children’s best interests – reasonably practicable – whether reasonably practicable – substantial and significant time – whether in the children’s best interests – whether reasonably practicable. FAMILY LAW – Property – interim orders – claim for interim property settlement to meet legal costs and to undertake renovations on home. FAMILY LAW – Spousal maintenance – whether need for interim order. CHILD SUPPORT – Departure application – not an interim application. PRACTICE & PROCEDURE – Failure to abide by directions for hearing – purpose of interim hearings. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61C, 61DA, 61DB, 62G, 65DAA, 68L, 79, 80 Child Support (Assessment) Act 1989 (Cth), ss.116, 117, 123 |
| In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92-492 Elspeth and Peter [2006] FamCA 1385 Starr & Duggan [2009] FamCAFC 115 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 MRR v GR [2010] HCA 4; (2010) FLC 93-424 McCall & Clark [2009] FamCAFC 92 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 Odorisio & Odorisio [2011] FamCAFC 32 |
| Applicant: | MR DONATO |
| Respondent: | MS DONATO |
| File Number: | SYC 5279 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 March 2011 |
| Date of Last Submission: | 4 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Gayle Meredith & Associates |
| Solicitor for the Independent Children’s Lawyer: | Ms Baker, Peter Baker Solicitors |
ORDERS
All previous parenting Orders are discharged.
The application for an interim departure from administrative assessment of the husband’s liability to pay child support is dismissed.
The parties are to attend upon a Family Consultant at the Sydney Registry for the purposes of preparation of a family report under the provisions of section 62G of the Family Law Act 1975 at such times and places as they are directed to do so.
The parties are to attend a conciliation conference with a Registrar on a date to be fixed for the purposes of dealing with the financial matters between them and must make full and frank disclosure of all relevant documents in accordance with Rules 24.03, 24.04 and 24.05 no later than fourteen (14) days before the date appointed for the conference.
PARENTING ORDERS UNTIL FURTHER ORDER
The applicant husband and the respondent wife are to have equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2002.
The children [X] and [Y] are to live with the wife.
The children [X] and [Y] are to spend time with the husband:
(a)Each alternate weekend from after school on Friday until the commencement of school on Monday morning PROVIDED THAT if the Monday immediately following that weekend is a public holiday then the time will extend to the commencement of school on the Tuesday morning;
(b)Each alternate week from after school on Wednesday to the commencement of school on the Thursday morning;
(c)On each child’s birthday if that day should fall on a day when the children are otherwise with the wife, from 10:00 am to 2:00 pm;
(d)
On the husband’s birthday if that day should fall on a day when the children are otherwise with the wife, from 10:00 am to
2:00 pm;
(e)On Father’s Day if Father’s Day should fall on a day when the children would otherwise be with the wife from 10:00 am until 6:00 pm;
(f)From after school on Thursday 21 April 2011 to 6:00 pm on Easter Saturday 2011;
(g)From 9:00 am on Christmas Eve until 4:00 pm on Christmas Day 2011;
(h)For the Autumn school holidays 2011 from after school on Friday 8 April to 6:00 pm on Friday 15 April 2011;
(i)For one half of the Winter school holidays from 9:00 am on Monday 11 July and concluding at the beginning of school on Monday 18 July 2011;
(j)
For one half of the Spring school holidays, commencing from after school on Friday 23 September 2011 and concluding at
6:00 pm on Friday 30 September 2011; and
(k)From 9:00 am on 5 January 2012 to 6:00 pm on Australia Day 2012.
The husband’s time with the children [X] and [Y] is to be suspended:
(a)on each child’s birthday if that day should fall on a day when the children are otherwise with the husband from 10:00 am to 2:00 pm;
(b)on the wife’s birthday if that day should fall on a day when the children would otherwise be with the husband from 10:00 am to 2:00 pm; and
(c)
on Mother’s Day if Mother’s Day falls on a day when the children would otherwise be with the husband from 10:00 am until
6:00 pm.
The husband is permitted to telephone the children at all reasonable times with the mother to permit and not interfere with the children initiating and receiving telephone calls.
The wife is permitted to telephone the children at all reasonable times when the children are in the care of the husband with the husband to permit and not interfere with the children initiating and receiving telephone calls.
For the purposes of Orders (7)(a) and (b) and for (7)(h), (i) and (j) where the Orders provide that the husband’s time with the children is to commence after school the changeovers will take place at the children’s school.
For the purposes of all other changeovers the husband is to collect the children from the wife’s residence and return the children to the wife’s residence.
The parties are restrained from:
(a)denigrating each other or member’s of the other party’s family in the presence or hearing of the children or permitting any third person to do so; or
(b)discussing these proceedings or showing to the children any document connected with thee proceedings or permitting any third person to do so; or
(c)discussing any aspect of their relationship with the children or in their presence or hearing or permitting any third person to do so.
The parties are to make arrangements to attend a post separation parenting course with Relationships Australia within three (3) months from the date of these Orders.
PROPERTY ORDERS UNTIL FURTHER ORDER
The husband is to place the property situate at and known as Property L in the State of New South Wales on the market for sale within twenty-eight (28) days of the date of these Orders.
Upon completion of the sale of the property at Property L the proceeds of sale are to divided as follows:
(a)in payment of any outstanding encumbrance on the said property;
(b)in payment of any outstanding rates and charges on the said property;
(c)in payment of all real estate agent’s commission and advertising expenses in connection with the sale;
(d)in payment of all conveyancing costs in connection with the sale;
(e)as to the sum of $140,000.00 to the wife by way of partial settlement of property; and
(f)as to the balance to be held by the husband’s solicitors in a controlled moneys account until further order of the Court.
The husband is restrained from selling, transferring, assigning, alienating, encumbering or charging any the properties at:
(i)[1] Property B in the State of New South Wales;
(ii)[2] Property B in the said State;
(iii)[3] Property B in the said State;
(iv)Property S in the said State; or
(v)Property C in the said State
without providing to the wife twenty-eight (28) days notice of his intention to do so or further Order of the Court.
Within twenty-eight (28) days of the date of these Orders the husband is to provide to the wife or her representative access to the properties referred in Order (17) above for the purpose of her obtaining market appraisals to be used at the conciliation conference before a Registrar as provided by Order (4).
The husband is to pay to the wife the sum of $500.00 per week.
IT IS NOTED that publication of this judgment under the pseudonym Donato & Donato is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5279 of 2010
| MR DONATO |
Applicant
And
| MS DONATO |
Respondent
REASONS FOR JUDGMENT
Applications
The husband, who is the applicant, seeks interim parenting orders relating to the parties’ two children, [X], aged ten years, and [Y], who is eight years of age. The wife seeks interim financial orders.
Orders Sought
The orders now sought by the husband are set out in his amended application filed on 25th November 2010. Essentially, he asks the Court to make interim parenting orders to this effect:
a)That the parties should have equal shared parental responsibility for the children;
b)That the children should live with the wife;
c)That the children should spend time with the husband:
i)Each alternate weekend from after school Thursday to before school on Monday;
ii)Each alternate week from after school on Wednesday to before school on Thursday;
iii)On each child’s birthday;
iv)At Christmas and on Boxing Day;
v)For three weeks in the December/January school holidays;
vi)At Easter;
vii)For half of the April school holidays in 2011;
viii)For half the June/July school holidays in 2011; and
ix)As otherwise agreed.
d)That the children should spend time with their mother on Christmas Eve and Christmas Day, at Easter and on Mother’s Day;
e)That the husband is permitted to telephone the children at all reasonable times;
f)That changeovers either take place at the children’s school or by the husband collecting the children from and returning them to the wife’s residence;
g)That the parties are restrained from denigrating each other or their families, discussing these proceedings with the children, or discussing their relationship with the children;
h)That the parties should attend a post-separation parenting course; and
i)Costs.
Curiously, the husband does not seek an order permitting him to spend time with the children on Father’s Day.
The wife filed a further amended response on 11th February 2011. In that response, she seeks interim parenting orders, interim property orders, interim spousal maintenance and an apparently interim Child Support Departure order.
The interim parenting orders sought by the wife would provide that:
a)The children should live with the wife;
b)The children should spend time with the husband:
i)Each alternate week from 10;00 am Saturday to 7;00 pm on Sunday, or 7:00 pom Monday if the Monday is a public holiday;
ii)At certain times on Good Friday;
iii)On Easter Sunday;
iv)On Christmas Day and Boxing Day;
v)On the children’s birthdays;
vi)On Father’s Day;
vii)On the husband’s birthday; and
viii)At other times as agreed;
c)That the husband’s time with the children be suspended:
i)On Mother’s Day;
ii)On the weekend of the wife’s birthday;
iii)On New Year’s Eve;
iv)At other times on Good Friday;
v)At other times on Easter Sunday;
vi)From Christmas Eve to Christmas Day;
d)That the parents be permitted to attend the children’s sporting fixtures, extra curricular activities and school functions;
e)That the parties ensure that the children attend extra curricular activities;
f)That the husband not allow one Mr M to enter his home when the children are present or have any contact with the children whatsoever;
g)That changeovers take place with the husband collecting the children from the wife’s home and returning them there; and
h)That the father be restrained from physically disciplining the children.
The wife also seeks an order under section 62G of the Family Law Act that the Court order a family report for the final hearing.
In the wife’s Case Outline document, Counsel for the wife,
Mr Sansom, set out that;
Instructions have now been obtained from the wife and she proposes that the husband now spend time with the children each alternate weekend from Friday afternoon until Monday morning, together with the other times set out in her Response of 11/2/2011.
When the application came before the Court, Mr Sansom told the Court that his instructions were now that the wife also proposed that the children should spend time with the husband for half of each school holiday period.
The wife seeks interim property orders to this effect:
a)Restraining the husband from disposing of residential real estate in Property B, Property S and Property C without written agreement;
b)Seeking an order for interim costs or interim property settlement in the sum of $140,000.00;
c)Requiring the husband to provide to the wife’s lawyers information requested on 8th December 2010; and
d)That the husband should provide access to a residential property at Property L and the properties at Property B, Property S and Property C for to allow her to obtain market appraisals.
The wife seeks an interim order for spousal maintenance in the sum of $550.00 per week.
The wife also seeks a Child Support Departure Order, both on an interim basis and on a final basis. The order sought is expressed to be in accordance with s.123 of the Child Support (Assessment) Act 1989, rather than s.117. Section 123 deals with applications for non-periodic child support rather than a departure from administrative assessment, although the order sought is stated to be an application for departure.
The application is stated as:
That pursuant to Section 123 of the Child Support (Assessment) Act 1989, there be a departure in relation to the husband’s child support liability Order in relation to the assessment of the Child Support Agency number [omitted] annexed and marked “A”, so that the husband’s child support liability be increased to the sum of $2,000 per calendar month for each of the children for the child support period from the date of these Orders to the date on which each child is 18 years of age.
The application is an application for a departure order and should be under s.117 of the Act. Counsel for the wife conceded that the reference to s.123 is a typographical error:
Clearly the Departure provision is via s. 117. The Order actually sought by the Wife in the sum of $2,000 per calendar month is not an Order to which s. 123 would normally apply but is an order to which s. 117 does. Access to that Section is to be found via s. 116.[1]
[1] Case Outline of the Respondent Wife 4 March 2011 at page 13
The order is sought in identical terms both as an interim order and a final order.
It is not an interim application. It is expressed to cover the period until each child attains the age of 18. The children are currently aged eight and ten years. It is fervently to be hoped that this application can be heard on a final basis in a shorter time than the next eight years, whether in this Court or in the Family Court.
Counsel for the husband has objected to the application being heard as an interim application, with good reason. It is not an interim application; it is an application for a final order and it will not be dealt with at an interim hearing. If necessary, the application can be argued at the final hearing, however the application for an interim order should be dismissed.
Background
The husband was born [in] 1964. The wife was born [in] 1965. They were married [in] 1988.
There are two children of the marriage. [X] was born [in] 2000. [Y] was born [in] 2002.
The parties separated on 19th June 2010. The husband has left the former matrimonial home. The children live there with their mother. The husband spent time with the children.
The husband commenced proceedings for parenting orders by filing an application and affidavit on 23rd August 2010. The wife filed a response, seeking only parenting orders, on 11th October 2010.
The parties attended a Child Dispute Conference with a Family Consultant that same day. There was no agreement reached. The Family Consultant noted in her Memorandum to the Court that the issue remaining in dispute on both an interim and a final basis was how the children should spend time with their father.
The application was listed for an interim hearing on 15th October 2010. On that day, the parties entered into interim consent orders. Those orders provided that:
a)An Independent Children’s lawyer should be appointed to represent the children’s interest;
b)The children should live with the wife;
c)The children should spend time with the husband on a Sunday and on weekends with the requirement that he rent accommodation until the residential property at Property B become available;
d)
Undertakings were to be filed by the husband and his family not to bring the children into the physical proximity of Mr M or
Ms L.
The parties entered into interim consent orders on 17th December 2010. these orders provided, inter alia, that:
a)The children would spend time with the father from 4:00 pm on Christmas Day until 6:00 pm on Boxing Day; and
b)The children would spend time with him from 6th to 27th January 2011.
Despite a direction by the Court that a typescript of those partly handwritten orders should be provided by 21st December 2010, no typescript was ever forwarded to the Court and there is no copy on the Court file. The orders will be discharged.
Evidence
The husband has sworn three affidavits and seeks to rely on all them. They were filed on 20th August 2010, 17th December 2010 and 2nd March 2011.
He also seeks to rely on the affidavits of:
a)Ms F sworn 14th October 2010;
b)Ms N sworn 14th October 2010;
c)Ms M sworn 14th October 2010;
d)Ms D sworn 14th October 2010; and
e)Ms L sworn 14th October 2010.
The husband also relies on his Financial Statement filed on 26th October 2010.
The wife relies on:
a)Her Further Amended Response filed on 11th February 2011;
b)Her affidavit filed on 11th February 2011;
c)Her Financial Statement filed on 1st December 2010;
d)Her affidavit filed 1st December 2010; and
e)Her affidavit filed on 11th October 2010.
On 17th December 2010 this application was listed for interim hearing on 4th March 2011. I made directions in line with those that apply in this Registry, that:
·The parties were to rely on no more than one affidavit by each of the parties and one for each other witness;
·The parties were to file and serve their affidavits by no later than 11th February 2011.
It is regrettable, then, that the husband seeks to rely on three affidavits to which he has deposed, the most recent of which was filed on 2nd March 2011. The Court received an entirely specious explanation from the father’s counsel as to why it was considered necessary for the father’s latest affidavit to be filed two and a half weeks late.
For her part, the wife managed to file her material within the time prescribed by the Court. However, she has deposed to three affidavits and seeks to rely on them all.
In the course of the hearing, the wife’s counsel tendered a letter dated
2 March 2011 from her solicitors. I admitted it into evidence over the objection of the husband’s counsel. The letter noted that the wife currently owed her solicitors the sum of $27, 400.26 and reminded her that their Costs Agreement permitted the solicitors to terminate the provision of services to her if she were to owe them an amount in excess of $5,000.00 for more than 60 days, which the letter said was the case here. Some of the husband’s bank statements, called “Rocket Statements” were also tendered.
Counsel for the wife did not object to the husband relying on his late-filed affidavit. Not surprisingly, neither counsel objected to the fact that the other party was seeking to rely on three affidavits by a party rather than the one that was prescribed by the Court.
I am unconvinced by the explanations of counsel as to why the direction I made on 17th December 2010 was not followed. It has been blatantly ignored.
The question of affidavits being filed out of time or other directions for hearing not being followed is one that has bedevilled both the Family Court and this Court for years. The issue was raised in the Full Court in the 1994 decision In the Marriage of Jaeger[2], where Fogarty J said:
…the ordinary procedural orders relating to the filing of O 30 affidavits and the like had been made and ought to be complied with. The court has gone to a great deal of trouble in recent times to set out a clear regimen of procedures relating to the preparation of cases which go on for trial and one of the reasons for that is to ensure that the case runs through smoothly, that there is not trial by ambush or, alternatively, that the case is not disrupted by adjournments whilst parties call evidence which was not previously anticipated.
That is an important issue and in many cases would be decisive of the matter.[3]
[2] (1994) 18 Fam LR 126; FLC 92-492
[3] (1994) 18 Fam LR 126 at 130; FLC 92-492 at 81,118
The purpose of an interim hearing is to deal quickly with urgent matters that cannot wait until a final hearing. It is not meant to be a trial run for the final hearing or a way of producing an expedited final hearing. Accordingly, the only interim orders that should be sought are procedural orders or orders intended to cover an immediate issue. The practice of some lawyers to repeat all the final orders sought as interim orders is undesirable and should not be followed.
The Court’s resources are being strained by an ever-increasing number of applications. Many practitioners seek interim hearings almost as a matter of course. This is also undesirable. If the Court is hearing numerous interim applications then the time for final hearings will recede further and further into the distance.
The Court makes directions to limit the number of affidavits to be relied on at an interim hearing so that the hearing can take place within a reasonable time. Practitioners should note that the Court will order that there should be one affidavit by each of the parties and one affidavit by any other relevant witness.
The Court will set a time limit by which the relevant affidavits will be filed. The purpose of this is to ensure that the parties are well aware of the matters to be argued before the hearing starts. All too often, the parties seek some time from the Court to obtain instructions and discuss some fresh material, which leads to a loss of hearing time and makes it impossible for the Court to determine the interim application on the day, as was the case here.
Parties must comply with the direction for filing affidavits. This includes considering what evidence is relevant to the particular issue. The affidavits must be filed on time.
The consequences of failure to comply with the Court’s directions may include:
i)Refusal of leave to rely on affidavit material; or
ii)An adjournment, which may be accompanied by an order for costs.
Submissions
Counsel for the husband submitted that the first matter to be determined is the allocation of parental responsibility, which may require a determination as to abuse or family violence (Elspeth and Peter[4] at [45]-[50]; Goode & Goode[5]). There is no allegation of abuse in this case.
[4] [2006] FamCA 1385
[5] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The legislation does not mandate consideration of the relevant sections of the Act in any particular order, although a logical approach is first to make findings concerning the relevant s.60CC factors and then consider, based on the s.60CC findings, whether equal time or substantial and significant time is in the child’s best interests (Starr & Duggan[6] at [38]).
[6] [2009] FamCAFC 115
It was submitted that following the allocation of equal shared parental responsibility the Court should then consider the practicality of the children spending equal time with each of the parents and, if that is consistent with the best interest of the children and not impracticable, the Court must consider making an order that the children spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the children spend substantial and significant time with each parent would be in their best interests and not reasonably impracticable (Goode & Goode[7] ; MRR v GR[8]).
[7] supra
[8] [2010] HCA 4; (2010) FLC 93-424
A primary consideration should be given to the benefit of the child (or children, in this case) of having a meaningful relationship with both of the child’s parents (see McCall & Clark[9] at [117]-[122]). The approach taken to this consideration should be a prospective approach but the present relationship approach may also be relevant.
[9] [2009] FamCAFC 92
It was submitted that the word “meaningful” is synonymous with “significant”, which is generally used as a synonym for “important” and “of consequence” (see Mazorski v Albright[10] at [26]).
[10] [2007] FamCA 520; (2007) 37 Fam LR 518
Mr Batey submitted that both children will benefit from having a quality relationship with both parents. The wife is currently restricting the time the children are spending with the father and, unless he is to have at least five nights in each fortnight with the children he will be distanced from them. The children are being subjected to ongoing denigration of the father and his family whilst in the mother’s household.
Additional considerations, it is submitted, are that the children have expressed strong and consistent wishes to spend more time with their father. The husband contends that he had an excellent relationship with the children but the wife has failed to maintain that relationship. It was submitted that she has not shown a willingness to facilitate or encourage time spent with their father or fostered a close and continuing relationship with him. The children are unlikely to suffer any separation anxiety at being separated from their mother, who is their primary carer. There is no significant impediment to the children spending time with their father but the wife has enrolled the children in a number of extra-curricular activities which the husband believes is intended to frustrate his time with them, giving the appearance of impracticability.
Thus, it was submitted, the wife has failed to fulfil her responsibilities of parenthood by her inability to facilitate a regular meaningful relationship between the children and their father.
There has been no family violence involving the children or a member of their family. An interim Apprehended Violence Order obtained by the wife against a member of the husband’s family was dismissed by the Local Court.
In his oral submissions, Mr Batey told the Court that the husband sought a substantial regime of time with the children. It was conceded that equal shared parental responsibility was appropriate and the Court should therefore consider the children spending equal time with their father or substantial and significant time. The latter should involve both holiday time and school time. On the wife’s proposal the husband would go for ten days each fortnight seeing the children.
There was no impracticability involved in that proposal as the husband only lives three minute away from the children’s school.
As to interim property matters, the husband originally proposed to transfer to the wife an unencumbered residential property at Property L that is presently tenanted. This would give the wife a rental income of $240.00 per week to supplement the $500.00 per week that the husband is currently paying. Thus, there would be no need for an order for interim spousal maintenance. The wife contends that she has expenses of $534.00 per week. However, he would submit to an order that he pay the sum of $500.00 per week to the wife.
It was submitted, however, that the wife had not demonstrated either a need for spousal maintenance or a capacity to pay on the husband’s behalf.
The husband, it was submitted, would agree to give undertakings that he would not deal with any of the parties’ real property other than by transferring the property at Property L to the wife, without giving her 28 days written notice.
Counsel for the wife complains that the husband is seeking to litigate interim proceedings in a serial fashion, noting that interim parenting orders were made by consent late last year. Mr Sansom indicated to the Court that he had recent instructions from the wife to offer the husband an increased amount of time with the children. The proposal now is:
i)that the children now spend time with the children each alternate weekend from Friday afternoon from Monday morning;
ii)that the children spend half of each school holiday period with their father;[11]
iii)On Good Friday;
iv)On Easter Sunday;
v)From the afternoon of Christmas Day to the afternoon of Boxing Day;
vi)On the children’s birthdays;
vii)On Father’s Day;
viii)On the husband’s birthday; and
ix)As otherwise agreed between the parties.
[11] This proposal was only made clear at the commencement of the hearing
Mr Sansom submitted that there were few agreed facts apart from the relevant dates of birth, marriage and separation.
In regard to the primary considerations set out in s.60CC(2) of the Act, it was submitted that whilst there is a real benefit to the children of having a meaningful relationship with both of their parents, this is subject to the caveat that the children should be protected against harm. The harm alleged is that the husband makes derogatory comments to the children about their mother.
The wife contends that the children have expressed a reluctance to spend more time with their father because of these alleged derogatory comments about their mother. The children are aged ten and eight years, so their view should be accorded some weight. The children have a close attachment to their mother but a “somewhat more problematic” relationship with their father. Whilst the mother has shown her willingness to facilitate the children’s relationship with their father, she must balance the benefits to the children with the difficulties caused by the facilitation of that relationship. The father’s proposals would bring about significant changes in the children’s circumstances. It was submitted that:
Without the dynamics at play being properly investigated via a Family Report it is contended that such a proposal is contraindicated.[12]
[12] See Case Outline of the Respondent Wife 4 March 2011 at page 9
It was further submitted that both parties have the capacity to provide for the physical needs of the children but the mother has the greater capacity to deal with their emotional and intellectual needs. With refreshing candour, Mr Sansom submitted that it was difficult to discern what order would be the least likely to lead to the institution of further proceedings in relation to the children (s.60CC (3)(l).
It was conceded that absent significant violence the presumption in s.61DA applies that equal shared parental responsibility is in the children’s best interests. It was contended, however, that “equal time and or substantial time are not within jurisdiction” and “substantial and significant time is contraindicated at present”.[13]
[13] Ibid at page 11
As to financial matters, Mr Sansom submitted that the wife seeks an interim costs order or property settlement in the sum of $140,000.00 under ss.79 and 80(1)(h) of the Family Law Act. The bases of the claim in that amount are that:
a)The sum of $62,000.00 is needed by way of legal costs for future litigation; and
b)Up to $62,000.00 is needed for house repairs.
The submission is that the parties’ asset pool is significant and there is a probability that the wife will receive an amount far in excess of the amount claimed. The repairs and renovations are needed for an asset of the parties.
The wife relies on the decision of Brereton J in Paris King Investments Pty Ltd & Ors v Michael Norman Rayhill & Ors.[14]
[14] [2006] NSWSC 578
The wife was not agreeable to the husband’s proposal that he transfer the Property L property to her subject to its current tenancy. However, it was put during the course of argument that the husband should sell the Property L property and pay the wife an amount of $140,000.00 out of the proceeds. The balance could be put into a controlled moneys account to await the finalisation of the proceedings.
The wife also seeks orders injuncting the husband from dealing with various properties that are in his name. She has concerns that she was not aware of these properties until her lawyers conducted a search and the husband has declined to indicate that he has no intention to sell any of the properties.
As to her claim for spouse maintenance, the wife submits that she has not been in paid employment for some year. She states that she has no income and sets out in her Financial Statement personal expenses of $534.00 per week plus a further $28.00.
The Independent Children’s Lawyer, Mrs Baker, told the Court that she had no independent evidence about the children. The Family Consultant did not interview the children for the purposes of the Child Dispute Conference. Noting the revised information about the wife’s proposals for the children to spend time with their father, she submitted that the increased weekend time was a “sensible proposal” and that the time now proposed should be regarded by the Court as “the minimum”.
In oral submissions Mr Batey indicated that the husband would agree to an order requiring the sale of the Property L property with the wife receiving the sum of $140,000.00 and the balance going into a controlled moneys account.
Relevant Law for Parenting Applications
Section 60CA of the Family Law Act provides that in deciding whether to make a parenting order the Court must regard the best interests of the child, or in this case, the children, as the paramount consideration. The Court determines what is in the children’s best interests by considering the matters set out in subsections 60CC(2) (the primary considerations) and 60CC(3) (additional considerations).
The Court is required by subsection 60CC(4) to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
It is provided by subsection 61C(1) of the Act that each of the parents of a child who is not 18 has parental responsibility for the child.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for the children.
When the Court is making an interim parenting order, which is the situation here, subsection 61DA(3) provides that the presumption applies unless the Court considers that it would not be appropriate in the circumstances for it to be applied (see Goode & Goode[15]; see also Odorisio & Odorisio[16] at [71])
[15] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[16] [2011] FamCAFC 32
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (see s.61DB).
If a parenting order provides that children’s parents are to have equal shared parental responsibility for the children, the Court is required by subsection 65DAA(1) of the Act to consider whether:
a)the children spending equal time with each parent would be in their best interests; and
b)whether such an arrangement would be reasonably practicable.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of their parents would be in the children’s best interests; and
b)whether it would be reasonably practicable.
Substantial and significant time is defined by subsection 65DAA(3) to include days that fall on weekends and holidays and also days that do not.
I have considered all of those matters.
Property
Orders for the alteration of parties’ interests are made under the provisions of s.79 of the Act. The Court has general powers under section 80 of the Act, which include:
a)Payment of a lump sum, whether in one amount or by instalments;
b)Payment of a weekly, monthly, yearly or other periodic sum;
c)Transfer or settlement of property by way of maintenance;
d)Order that payments be made direct to a party to the marriage;
e)Making an order pending the disposal of proceedings; and
f)A variety of other matters.
Conclusions
There appears to be no issue that this is a case where equal shared parental responsibility is appropriate and I propose to apply the presumption that it would be in the best interests of the children for their parents to have equal shared parental responsibility.
Before considering the questions of equal time with each parent or, in the alternative, substantial and significant time with each parent, I propose to consider the factors in s.60CC of the Act.
The children’s best interests are the paramount consideration.
I am satisfied that there is a benefit to the children in having a meaningful relationship with their father as well as with their mother. The children presently spend time with him on alternate weekends from 9:00 am on the Saturday until 6:00 pm on the Sunday. Thus, they only spend one night a fortnight with him, although they have recently spent some school holiday time with him.
There is evidence that the children did spend time with their father during January, as agreed, although he deposes that they were distressed by telephone calls that took place with their mother.[17] The parties each claim that the other and members of the other’s family constantly denigrate them to or in the presence of the children. This could well cause the children some psychological harm but the Court is not in a position to make findings of fact on this issue in an interim hearing, which does not involve testing the evidence by way of cross-examination. It should be clear, however, that if either or both of the parents are engaging in such destructive behaviour it would demonstrate both a lack of willingness to facilitate and encourage a close and continuing relationship between the children and the other parent (s.60CC(3)(c) and a failure to fulfil the parental responsibility of facilitating the other parent in spending or communicating with the child (s.60CC(4)).
[17] Affidavit of Mr Donato sworn 2.3.2011 at paragraphs [79] – [104]
I propose to make orders restraining the parties from denigrating each other to or in the presence of the children in order to protect the children from psychological harm
In any event, I note that the wife now agrees that the husband shall spend school holiday time, being half the school holidays, with the children and has proposed a more extensive weekend for the husband with the children, which would see the children spending time with him from Friday afternoon until Monday morning. This would increase the number of nights per fortnight with the husband from one to three during the school term.
Whilst this is a significant increase in the time that the children spend with their father, it does not meet the definition of “substantial and significant time” in subsection 65DAA(3). It only provides for weekend and holiday time. As the husband says that he lives only three minutes away from the children’s school, presumably by car, it would appear that he could well spend a bit more time with the children during the week so that he could have more involvement in their school life.
That said, the wife’s proposal that the husband’s weekends extend to a Friday afternoon pick-up and a Monday morning return are a good idea. Changeover can take place at school without the parents having to meet each other. The evidence is that their relationship has been acrimonious and avoidance of occasions for the parents to meet would be of benefit to the children.
The wife’s counsel submits that there is a plethora of evidence in her first affidavit about the children’s reluctance to spend significant periods of time with their father. However, the wife’s first affidavit was sworn on 8th October last year, and a lot has happened since then, including orders made by consent on 15th October and 17th December 2010.
The children are of an age where the Court would give some weight to their views. [X] was born [in] 2000, so he is now ten years and six months old. [Y] was born [in] 2002, which means that she is currently eight years and nine months old. Whilst counsel for the wife has submitted that the Court should not bring about significant changes to the children’s circumstances “without the dynamics at play being properly investigated via a Family Report”[18], it should not be the case that the Court should wait till a Family Report is available in order to obtain an independent account of the children’s views.
[18] Case Outline of the Respondent Wife 4.3.2011 at page 9
The Court does not have any independent evidence of the children’s views. The parties’ affidavits are highly partisan and are untested by cross-examination. Subsection 62CD(2) provides that:
The Court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68l for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
An order was made on 15th October 2010 under s.68L of the Act that the children’s interests be separately represented. It is unfortunate that the Independent Children’s Lawyer was not in possession of any independent information about the children’s views at the hearing on 4th March.
I intend to order a Family Report under the provisions of s.62G of the Act.
There is insufficient evidence about various matters covered under subsection 60CC(3) for the Court to be as bold as it otherwise might be in making interim parenting orders. It does appear to be the case that there would be relatively little practical difficulty and expense in the children spending time with each parent, as they do not live very far apart. The children are a boy aged ten and a half and a girl aged eight years and nine months from an Italian-Australian background. The Court has no evidence of any particular characteristics of the children.
There are no allegations of family violence or any relevant family violence orders.
An increased amount of time with their father would appear to be an important factor towards fostering the children’s best interests, but the relative lack of independent information about the children suggests that the Court should take a relatively conservative approach in making parenting orders. If the proposed orders appear to be working successfully, there may be scope for a more liberal approach in the future.
That said, the Court is not prepared to list a succession of interim applications whenever the parties wish to revisit the orders.
The degree of acrimony between the parties and the relatively poor communication would argue against the children spending equal time with each parent, both from the point of view of reasonable practicability and the children’s best interests.
As to substantial and significant time, the wife’s proposal would normally only provide for the children to spend three nights a fortnight with their father during school term time, with all of that time being on weekends or holidays. There are public holidays in New South Wales due to arise in April, June and October, and it would appear that a long weekend with their father, if the public holiday follows a weekend when they would otherwise be with him, would be both desirable and sensible.
There is little point in children who would normally go from a parent’s home to school on Monday morning if they have been spending time with him or her that weekend returning to the other parent’s home on the public holiday Monday when they could enjoy the long weekend with that parent. An exception to this would be if the parent had to work on the public holiday, for example.
The husband seeks an order that on one week a fortnight, the “off week”, the children would spend the Wednesday evening with him and then go to school on the Thursday morning. This would go some way towards the concept of substantial and significant time with the husband. In a normal fortnight during the school term the children would spend four nights with their father and the balance of the time with their mother.
Substantial and significant time includes:
a)occasions and events that are of particular significance to the child (s.65DAA(3)(b)(ii)); and
b)occasions and events that are of special significance to the parent (s.65DAA(3)(c)).
Children’s birthdays, parents’ birthdays, Mother’s Day and Father’s Day can be seen to fit into both categories.
I note that the children’s birthdays this year both fall on a Sunday [dates omitted]. If the children are spending time with their father on those Sundays, then it would seem fair that their mother should be able to spend some time with them on their birthdays. Similarly, if the children were living with their mother on their birthdays, then it would only be fair that they spend some of that time with their father.
The wife proposes in her Further Amended Response that the time should be from 10:00 am to 2:00 pm (proposed Order 2.2.2) which sounds like a sensible idea, as it would allow plenty of time for a birthday lunch with the particular parent.
It follows that the children should spend time with each parent on that parent’s birthday. The husband’s birthday is on [date omitted], which is a Saturday this year. The mother’s birthday falls on [date omitted], which is a Sunday. In my view, the same arrangement should apply.
Even the husband has not specifically sought an order to cover Father’s Day this year, I regard that as an oversight. The mother proposes that Father’s Day should be spent with the Father and Mother’s Day with the mother, although there appears to be a typographical error in the wife’s proposed Order 2.3, as it states:
On Father’s Day from 10:00 am until 6:00 pm, if Father’s Day falls on a weekend that the children would[19] otherwise be living with the father.
[19] This should perhaps read “would not”
In my view, Mother’s Day and Father’s Day are of significance to parents and are quite often of particular significance to their children. The children should be with their father on Father’s Day and their mother on Mother’s Day. The husband’s application is silent on that issue, but the wife’s proposed order suggests 10:00 am to 6:00 pm, which appears to be a suitable arrangement.
The husband seeks specific orders to cover Easter. He also seeks the first week of the April school holidays. The wife seeks different orders about Easter, referring specifically to the days of particular religious significance in the Christian calendar, Good Friday and Easter Sunday. Those days should properly be shared, with changeover arrangements to be after school, to avoid difficulty between the parties.
There is no issue about half of the school holidays. There should be two days at Easter with the husband and the balance with the wife.
The husband seeks that his time with the children for the Autumn school holidays should commence “after school on 11 April 2011” and conclude on 18 April 2011. The 11th April 2011 is a Monday. The school term ends on the previous Friday, 8 April. The New South Wales Public Schools Website is a matter of public record and provides useful information about the dates of school terms and school holidays.
The husband’s time with the children for the Autumn school holiday period should commence after school on Friday 8 April and conclude one week later, on Friday 15 April.
Turning to the financial issues, the wife seeks the sum of $140,000.00 for the purposes of renovating the house in which she lives with the children and funding the ongoing litigation. Whilst the husband has not sought any interim property orders, he has sought a final order that he transfer the property at Property L to the subject to its current tenancy, thereby giving her an income of $240.00 per week.
The wife does not wish to avail herself of that offer, but there has arisen a consensus that the husband should sell the property and pay to the wife the sum of $140,000.00 out of the proceeds, thereby meeting her requirement for funds for renovation and litigation. The balance could be held in a controlled moneys account.
This, as I indicated at the hearing, is an attractive proposition and I propose to make that order.
I am not satisfied that the wife has established a need for interim spouse maintenance at this stage. There is evidence from the husband that:
Since November 2010, I have transferred $500 each week to [Ms Donato] by way of contribution to her living expenses. From 9 December 2010, I have also paid $407.18 per week by way of child support. This is as assessed by the Child Support Agency.[20]
[20] Affidavit of Mr Donato 2.3.2011 at paragraph [20]
Provided that the husband continues to make those payments promptly, and his counsel has told the Court that he will agree to an order in that regard, then it would not appear necessary for an interim spousal maintenance order to be made. However, a cessation of those payments would lead, at the very least, to the application for an interim maintenance order being revived. That application can remain in the list and, if necessary, can be argued either on an interim basis or on a final basis at a later date, if necessary.
The wife also seeks access to the properties at Property L, Property B, Property S and Property C for the purpose of obtaining market appraisals. This is not unreasonable, as the parties will need to attend a conciliation conference with a Registrar of the Court in order to deal with their property claims. If they approach the conference in the proper way and make full financial disclosure, there is a possibility that their financial matters may settle, which would be to their financial benefit. If this matter has to go to final hearing on all issues, the available hearing dates given will be more than a year away.
Whilst the husband, through his counsel, has indicated that he would undertake not to dispose of any of those properties without giving the wife notice of his intention to do so, I am of the view that an injunctive order would be more appropriate.
I intend to make an order that the parties attend a conciliation conference on a date to be fixed by the Court.
It will be beneficial for a Family Report to be ordered at an early stage, as this may enable the parties to reach a resolution of the parenting issues, which would be a desirable outcome for the children and would appear to be in their best interests. The report would take at least three months to prepare and, in view of the length of time before this matter can be heard on a final basis, it would appear preferable if the report were made available and the parenting application mentioned on a suitable date later this year.
The Child Support Departure application is more properly dealt with as a final matter rather than the subject of an interim hearing. As I indicated earlier, the interim application will be dismissed.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 March 2011
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