Euston and Euston

[2008] FamCA 681

FAMILY COURT OF AUSTRALIA

EUSTON & EUSTON [2008] FamCA 681

FAMILY LAW – CHILDREN – Interim parenting orders sought but not granted with the effect that siblings remain separated pending adjourned date – child and parent assessment ordered – independent children’s lawyer requested – interim financial relief

APPLICANT: Ms Euston

RESPONDENT: Mr Euston

FILE NUMBER: MLC 4022 of 2008

DATE DELIVERED: 23 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H. Dellidis

SOLICITOR FOR THE APPLICANT: Wilsons Lawyers

COUNSEL FOR THE RESPONDENT: Mr R.P. Hutchins

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

Orders

BY CONSENT IT IS ORDERED:

1.That there be orders in terms of the Minutes of Consent Orders signed by the parties and dated 23 May 2008 (“the Minute”).

IT IS DIRECTED:

2.That the Minute be placed upon the Court file and marked “Exhibit A”.

3.That the Court do engross the Order.

IT IS ORDERED BY CONSENT:

4.That the husband do all acts and things and sign all such documents as may be required to sell, altogether out of court, the real property situate and known as S in Tasmania, being the whole of the land more particularly described in Certificate of Title Volume … Folio … by an agent, at a price and upon terms to be agreed between the parties and in default of agreement to be nominated by the President from time to time of the Real Estate Institute of Tasmania and the proceeds of sale be applied as follows:-

a)      Firstly to pay the costs, commissions and expenses of sale;

b)      Secondly, to discharge National Australia Bank Loan Account number … in the approximate sum of $125,000.00;

c)      Thirdly, the sum of $10,000.00 to each of the parties; and

d)      Fourthly, the balance to be paid into an interest bearing account in trust for the parties until written agreement of the parties or Order of the Court.

IT IS ORDERED:

5.That these proceedings be adjourned to 16 June 2008 at 4.00 pm for a further determination of interim parenting issues concerning the children M born … February 1993, J born … August 1994 B born … December 2000 estimated to take approximately ninety minutes.

6.That pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings shall attend an appointment/series of appointments with a family consultant of this Registry of the Court and as part of the family’s participation in the Child Responsive Program:-

a)   The husband and the wife are to attend at Level 5 of this Registry of the Court on 27 May 2008;

b)     The wife attend at 9.00 am and the husband attend at 11.00 am on 27 May 2008;

c)     The parties be responsible for bringing the children in their care to this Registry of the Court on 4 June 2008 at 9.00 am:

d)     The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant; 

e)     A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

f)   The Family Consultant may appoint further interviews for the parties and the children; and

g)     It is requested that the Family Consultant prepare an issues assessment in writing to be completed by 10 June 2008 and that issues assessment be made available to the parties, their practitioners and the Court prior to the adjourned date.

7.That the Family Consultant may, at the direction of the Honourable Justice Bennett, be required for cross-examination on the adjourned date.

8.That the Application of the husband for the children M born … February 1993, J born … August 1994 and B born … December 2000 to spend time with each other or with him pending the adjourned date is refused.

9.That on or before Tuesday 3 June 2008 the wife file and serve any expert evidence upon which she relies in relation to her proposal to make further investment in the renovation and refurbishment of the former matrimonial home prior to sale.

10.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children M born … February 1993, J born … August 1994 and B born … December 2000 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed as soon as practicable and in sufficient time to be able to participate in any feedback session conducted as part of the Child Responsive Model although nothing in this Order compels the family consultant to invite the independent children’s lawyer to so participate.

11.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

12.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

13.That prior to the adjourned date of hearing the independent children’s lawyer give consideration to the desirability of having both parties to the proceedings assessed by a psychiatrist or like expert.

14.That each party do all acts and things necessary to individually undergo liver function tests and have those results exchanged between themselves via their respective solicitors and available to the family consultant prior to 4 June 2008.

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

16.That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4022 of 2008

MS EUSTON

Applicant

And

MR EUSTON

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. I have to rise now but I want the parties to understand why I am not making orders for any time between the boys, M (15 years) and J (13 years) who reside with the father and B (7 years) who resides with the mother, between now and the matter coming back on for hearing on 16 June 2008. 

2. The fundamental principles include that it is of benefit to the children to see each parent and have a meaningful relationship with each parent and each other.  That is applicable in this case.  Also there is a requirement to make orders that protect the children from ill treatment, emotional or physical abuse.  The latter aspect bothers me in this case.  Balancing the two principles directs my mind to the difficulty of crafting arrangements which promote the children having a meaningful relationship with both their parents whilst still be protected from the forms of emotional abuse that each parent alleges the other perpetrates.

3. Having read the material to which I was directed and having heard submissions by counsel for each of you, I see the best way forward for the next few weeks is to not put any arrangements in place and, hopefully, by doing so, do as little harm as possible. 

4. I accept that it would be preferable for the children to see each other but, at this stage, I cannot see a safe and secure means for them to do so. 

5. The boys have been separated now in some way - the family has been severely fractured - since 29 February 2008.  In not making orders today, that situation will be perpetuated which is not particularly good.  However, I am concerned that any orders I do make, without the benefit of some form of assessment, could make the situation significantly worse.  In the meantime, I will also request the appointment of an independent children’s lawyer who will, amongst other things, be responsible for putting the children’s views before the Court on the adjourned date.

6. I note that the husband, who is seeking that time be introduced immediately, did not initiate these proceedings and did not file documents until today.  I infer from the fact that the father has assumed a responsive rather than proactive role in these proceedings that the reunification of the boys was not a matter that he determined was imperative before now.  Not only could he have brought an application himself at an earlier date but there are organisations within the community, including family relationship centres, to which he could have had recourse. 

7. Each party makes very serious allegations against the other in relation to parenting.  Without being in a position to make findings in respect of those allegations and without there having been any input by a family consultant, I am satisfied that the safest course is to leave the boys separated for another three weeks.  Accordingly, I refuse the application of the husband for orders that the children spend time with each other or with him pending the adjourned date.

8. In relation to money matters I have already made orders in the terms of the minute which provides for the sale of the Tasmanian property.  Between now and 16 June I will require that the husband pay the amount of $465 per week on account of the mortgage over the former matrimonial home.  This payment is only until the further hearing.  I make it taking into account the husband’s discretionary expenditure.  He has sufficient moneys to meet that part of the mortgage.  I am conscious of the fact that making the payment could mean that he does not meet all of the school fees expenses that he wants to meet but I prioritise the mortgage over the school fee debt.

9. I do not make an order for the sale of the former matrimonial home today.  I will postpone my consideration of that part of the application until the hearing on 16 June. 

10. In relation to the improvements which the wife wants done to the home prior to sale, if she wants to provide a report by an appropriately qualified person she can do so prior to that date and I may consider it on that date.  I do not propose to require the wife to file anything or to preclude her from doing so.  However, if she seeks to rely on expert evidence on the adjourned date she should ensure that the husband has had it in sufficient time for him to obtain a competing report.  If she does otherwise and the husband objects, I might not permit her to rely on same.   

11. I have not taken the financial statement of the husband as an exhibit in these proceedings.  I am concerned that it will end up in the court file as a document filed and relied upon (as opposed to merely sworn) by the husband.  The husband does not rely upon it. I hand it back to Mr Hutchins.  If the wife wants to rely upon it subsequently, she can annex it to an affidavit in due course.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 August 2008