Fenn and Hamblyn
[2011] FMCAfam 850
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FENN & HAMBLYN | [2011] FMCAfam 850 |
| FAMILY LAW – Interim parenting, property, spousal maintenance and child support departure. |
| Child Support (Assessment) Act 1989, s.117 Family Law Act 1975, ss.72-75, 79 |
Goode & Goode [2006] FamCA 1346
| Applicant: | MS FENN |
| Respondent: | MR HAMBLYN |
| File Number: | SYC 2356 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing date: | 8 August 2011 |
| Date of Last Submission: | 11 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Pearson Family Lawyers |
| Counsel for the Respondent: | Mr Campton |
| Solicitors for the Respondent: | Hunt & Hunt Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER
Orders 2.8 to 2.11 made 6 July 2011 be vacated, NOTING THAT Order 2.7 (which provides for the Husband to spend time with the Children) is not vacated.
During the period of the Husband’s leave commencing on 1 August 2011, the Children X born (omitted) 2003 and Y born (omitted) 2008 are to spend time with the Husband once each week either:
(a)From after school or preschool on the first day to before school or preschool on the third day; OR
(b)From after school or preschool on Friday to Sunday at 5:00pm;
With the Husband to nominate in writing the proposed contact arrangements for each week that he is on leave and notify the same to the Wife no later than 5:00pm on Friday 12 August 2011. The time provided for in this Order must not commence within 48 hours of the time provided for in Order 2.7 made 6 July 2011.
After the conclusion of the Husband’s leave referred to in Order 2 above, the Husband spend time with the Children:
(a)For up to 3 consecutive days every week commencing from 9:00am on the first day and ending at 6:00pm on the third day, on such dates as elected by the Husband on a 4-weekly basis in accordance with his work roster; and
(b)Further or other periods as agreed between the parties.
(c)For the purposes Order 3(a) and 3(b) above, the Husband shall provide to the Wife at least 7 days prior to the commencement of contact:
(i)written notice of the dates he has elected;
(ii)a copy of his work roster every 4 weeks or as issued by his employer from time to time; and/or
(iii)written notice of dates of leave granted by his employer from time to time.
The Husband is to ensure that if his time with the Children coincides with school or preschool days, they are to attend school and preschool in the usual way.
For the purposes of these Orders, and unless the parents otherwise agree, the Husband will be responsible for collecting the Children at the commencement of his time with them and the Wife is responsible for collecting the Children at the conclusion of their time with the Husband.
Subject to Order 5 above, the Wife is to do all acts and things necessary to ensure that the Wife’s Mother is not present within sight or hearing of the Husband during changeovers in accordance with these orders.
Both parties do all acts and things including signing all documents necessary to complete sale of the home and direct the proceeds of sale to be paid on settlement in the following manner and priority:
(a)Payment to the Husband in a sum equivalent to 50% of the remaining sale proceeds after payment to the Wife in accordance with the order of 6 July 2011; and
(b)Payment to the solicitor, Aurora Conveyancing any balance remaining to be held in trust on behalf of the parties pending joint express written instructions by both parties or further order.
Within 21 days from the date of the making of this Order, the Husband do all acts and things necessary to cause the transfer of the registration of the (omitted) motor vehicle (registration number (omitted)) into the Wife’s sole name.
The Husband pay by way of spouse maintenance:
(a)To the Wife or as she may from time to time direct in writing the sum of $500 per week to be paid in advance by monthly instalments and to be received by the Wife by the 7th day of each month, such payment to continue pending further order;
(b)All instalments for private health insurance for the Wife to such health fund as the Wife may nominate for the Wife and Children and in addition thereto pay any private hospital, optical, physiotherapy, dental and medical expenses including but not limited to general practitioner, specialist and psychologist expenses in respect of which the Wife is not able to recover from the fund.
By way of departure from the administrative assessment of child support for the Children for the period from the date of the making of this Order or a terminating event within the meaning of the
Child Support (Assessment) Act 1989, the Husband shall pay by way of non periodic child support, in addition to any child support the Husband is liable to pay:
(a)All education expenses in relation to the attendance of the Children at their present school or such other school or preschool as the Husband and the Wife agree upon in writing an such expenses shall mean and include all tuition fees, excursion fees, incidental sporting costs including sports uniforms and equipment, the cost of school books, school uniforms; and
(b)Extra-curricular activities and extra-curricular tuition.
such payment to be made within 7 days of the Husband being provided with a copy of the account for any of the above expenses.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 62G(2) of the Family Law Act1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act and the Family Consultant’s Memorandum to the Court.
The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
I DIRECT the Solicitor for the Applicant to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.
The parties must within 14 days contact Relationships Australia on
(omitted) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a Parenting After Separation course.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Both parties to share equally the costs of the program.
The matter be adjourned to 6 December 2011 at 9:30am for Mention. The parents must attend with their legal representatives if the Family Report is available.
Leave be granted to the parties to file Consent Orders in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Fenn & Hamblyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2356 of 2011
| MS FENN |
Applicant
And
| MR HAMBLYN |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Fenn & Hamblyn. The applicant wife is 39 years old and is a (omitted) working on a casual basis. The respondent husband is 43 years old and he is a (omitted) employed by (omitted). Cohabitation commenced in 1998. The parties married in 2000 and separated in September 2010. They have two children: X who is eight years old, and Y who is nearly three years old. Both currently live with the applicant wife at the home of the maternal grandparents. The respondent husband currently lives in the home of the paternal grandparents.
The wife’s application filed 18 April 2011 sought final orders for property, superannuation, spousal maintenance and child support, and interim orders for spousal maintenance and child support.
The husband’s Response filed 1 July 2011 joined issue with the final and interim financial orders, but also raised parenting issues.
The matter first came before me on 6 July 2011. I declined to deal with any interim matters in the circumstances where the parents had not yet attended a Child Dispute Conference. The applicant wife probably didn’t have enough time to respond to parenting issues, and in any event completion of the sale of the former matrimonial home was imminent and this would have had a significant impact on the financial circumstances of both the husband and the wife. When the matter came before me for interim hearing on 8 August 2011 the wife had filed a further Amended Application which, for practical purposes, joined issue with parenting and property and sought interim orders in relation to parenting, spousal maintenance and child support.
The husband filed an Amended Response seeking interim orders in relation to property and parenting, and otherwise seeking dismissal of the applicant wife’s application for child support and maintenance.
At the interim hearing, therefore, the applicant wife’s proposal for parenting orders is contained in a Minute of Order provided by her Counsel, Mr Dura, and the financial orders that she seeks are in her Further Amended Application filed 22 July 2011. The respondent husband’s proposal is contained in his Amended Response and I incorporate into these oral reasons the respective proposals and orders sought.
The issues before me included the following: what are the most appropriate parenting orders to make for the children; interim property; interim spouse maintenance; and interim child support departure. The evidence before me consisted of a substantial volume of affidavits and documents produced on subpoena together with the Family Consultant Memorandum to Court of 29 July 2011.
The applicable law in the parenting application is, of course, contained in Part VII of the Family Law Act 1975 and the Full Court’s decision in Goode & Goode [2006] FamCA 1346 and I incorporate into these oral reasons a number of paragraphs from the Full Court’s decision. Section 79 of the Act that deals with the principles to be applied even in the context of an interim property application, the maintenance provisions of the Act are, of course, sections 72 to 75, and the interim child support is governed by section 117 of the Child Support (Assessment) Act 1989.
Before dealing with the discrete issues that are raised in these proceedings, I make the observation that the enthusiasm with which this litigation has been conducted is completely disproportionate to the issues raised by the parties. The sizes of the affidavits are completely out of sync with the issues. There is much material that was not helpful to the Court. Directions have been ignored, practice directions have been ignored, eight subpoenas have been issued and six Notices of Objections filed. Based on my experience in this jurisdiction, as well as indications given by Counsel on 6 July 2011, the amount that this family has spent on legal fees now exceeds the tangible property available for distribution between them. Both the applicant wife and the respondent husband need to disengage, to step back, take a deep breath and adopt a new and more sensible approach to resolving their issues that does not involve spending their hard-earned money and their assets on litigation.
On 6 July 2011 orders were made by consent which finalised arrangements for the sale of the former matrimonial home and the distribution of its sale proceeds, including half of the net sale proceeds to the wife. There were also interim orders in relation to parenting.
I have directed the parties to attend a Conciliation Conference on 27 September 2011 and one can only hope that common sense will prevail at that conference.
I will deal, firstly, with the husband’s application for interim property orders. In his Amended Response at paragraph 7 the husband seeks an order that, pending further order and by way of interim distribution, the (omitted) motor vehicle be transferred to the wife’s sole name.
There was no opposition to this and on that basis I intend to make orders 7 of the interim orders sought in the husband’s Response.
The husband’s further application is that he receives one half of the remaining sale proceeds after the wife receives what was agreed to in the order of 6 July 2011. In this regard, it is common ground that the wife will receive 50% of about $61,000. The husband seeks an order for, in effect, half of the balance, or about $15,000. The husband’s case is that this will enable him to move out of his parents’ home. I am satisfied that his need is sufficiently compelling. If it is good enough for the wife not to live with her parents then it is good enough for the husband not to do so. I am satisfied that the threshold is crossed in this regard. I am satisfied that giving the husband access to one quarter of the available cash assets on an interim basis is consistent with the exercise of discretion under section 79. It is clearly apparent from the material before me that he has made contributions which must be recognised. The sum that he seeks is not so high that any claim by the wife for contribution or 75(2) adjustments will be nullified. It is, in any event, an order that can be reversed. Given the husband’s earning capacity, if I were so minded he would pay that sum back to the wife.
I turn now to deal with the wife’s application for spousal maintenance. She seeks an order in the sum of $500 per week. The respondent husband, sensibly and appropriately through his Counsel, conceded that if the threshold issue was established the husband had the capacity to pay. I must say that even if this were not the case I would have made that finding on the evidence before me. Clearly, there is significant scope within the financial circumstances of the husband as disclosed in his Financial Statement for him to be able to fund a payment of up to $500 per week. The real issue is the threshold issue. The respondent husband asserts the wife has an unrealised capacity to earn a greater income than she currently does. I do not accept that.
Whilst I acknowledge that at the final hearing there will be a number of issues about, for example, discrepancies between the wife’s financial statements, the history of the wife’s employment through the (omitted) and her general capacity to work at more than her current level, at an interim hearing where I have evidence about her past and current income, where I have evidence about the needs of the children and take into account the wife’s assertion that she wishes to be there for the children, which I note is consistent with the situation during cohabitation, then I am satisfied that the wife is working to capacity and that the threshold has been met.
The wife asserts total expenses for herself of $1,247 per week.
I propose to disallow a number of items but, as will be apparent, this is a rather academic exercise. I would disallow books and magazines, gifts, holidays, entertainment and hobbies. I would reduce the amount for clothing and shoes and telephone. On this assessment her total expenses would be reduced to $987 per week. I accept, however, that she would have to pay rental at $450 per week and this increases her expenses to $1,437. The wife’s available income is, excluding child support and government benefits, $626 per week. The deficit, therefore, is $811 per week. The sum sought is $500 per week. It is clearly appropriate on the evidence before me.
I expressly recognise in these reasons that the wife will have access to what is, I think, a relatively modest lump sum from the sale proceeds of the former matrimonial home. The existence and receipt of these funds by the wife is a matter that is expressly contemplated by me. I do not regard this as detracting in any way from my analysis of the wife’s need for spousal maintenance. I recognise that there may be substantial expenses in setting up a new home. I note, however, that the wife may well need to recognise that the further cash that she will get out of this settlement, if any, will be very limited indeed.
The wife seeks interim orders by way of administrative assessment, a departure from administrative assessment. The current assessment is in evidence. Non-periodic support is sought as follows: a private health fund cover for the children. I decline to do this as it is, in effect, part of the order for spousal maintenance. I note that even if I had not made the order for spousal maintenance covering health insurance, I would have made the order for non-period child support as proposed by the wife. She seeks gap payments for the children in relation to medical expenses. I consider this to be appropriate in the circumstances of the case and, for the reasons I have articulated before, I am satisfied the husband has capacity. She seeks education expenses and extracurricular activities. At this stage in the children’s lives these are minimal and I am satisfied again that the husband has capacity and, in any event, I note that this is an interim order. Just to make this very clear, but using shorthand, I am satisfied as to the matters set out in section 117 of the Child Support (Assessment) Act, but I do not consider it necessary to articulate the precise grounds for doing so.
I turn now to consider the parenting orders sought by the parents.
The mother’s proposal was set out in the minute of order and she proposes that, subject to her having the husband’s flight roster, that the children spend time with him for two weekends out of every three, from Saturday 9:00am to Sunday 11:00am, provided that overnight time is spent at the home of his parents. She also proposes every Wednesday afternoon and then, by agreement, during the school holidays. The father’s proposal is contained in his Amended Response. In addition to seeking block time during a current period of leave that he is enjoying, he seeks an order that provides for up to three consecutive days every week, commencing 9:00am on the first day and ending at 6:00pm on the last day on such dates as elected by the husband on a four-weekly basis. And then he seeks other ancillary orders.
The father is a (omitted) who works according to a roster that covers a four-week period and in respect of which he gets one week’s notice. The husband asserts, and it is not disputed, that he gets about nine days off each 28 days. I have tried as hard as I can to read and interpret the husband’s roster, to no avail. I would have thought it was in his interest to communicate that information to me in a way that I can understand. Paragraphs 84 to 89 of his affidavit is the best evidence I therefore, have about his work hours and days. He seeks three-day blocks as elected by him based on his roster. Based on his own evidence, this means he would be having the children not more than three times in a 28-day roster period. I note that one of the issues in this case is the capacity of children to cope with this sort of absence from their mother.
The mother’s proposal, I must say, seems almost destined to fail. Whilst nominally referring to the husband’s roster, it is fixed to weekends and Wednesdays, irrespective of whether the husband is (omitted) or not. On the mother’s proposal the children would not know from month to month whether, when and how often they would be seeing their father.
Whilst the parents’ proposals certainly reflect their own personal needs and concerns, and may even set out what they perceive to be the best for their children, a much more objective and reliable indicator of what the children need is in the documents produced on subpoena by psychologist Ms T. These documents became Exhibit A2. She says as follows:
Firstly, in relation to X, who is eight years old, he needs a predictable schedule regarding contact so that he knows what to expect and when, thus reducing his anxiety and avoiding last-minute changes.
She suggests spacing of visits should be consistent and routines maintained. In relation to Y, who is nearly three years old, she suggests that overnights away from the mother should not exceed two nights per week and that there should be predictability and consistency in this routine. In some respects, Ms T’s advice is a counsel of perfection. It is clear that on the facts of this case the only way that her recommendations could be literally implemented is if there was contact on the same day each week that happened to coincide with the father’s days off. That is unlikely to happen. The Court must seek to implement the spirit of the psychologist’s recommendations whilst working within the parameters of the facts of this case.
There is enough evidence from the material sworn by the parents, as well as the Family Consultant Memorandum to Court, to satisfy me that the father has a meaningful relationship with his children and indeed that is a good relationship, notwithstanding his absences from home due to his work. There is no question, on the material before me, that the mother has been primarily responsible for the care of the children, even though the father has been significantly involved in their lives. Clearly the children have a strong relationship with her. There is no evidence before me that compels any conclusion that the children are at risk of harm whilst in the father’s care, and so there is no justification of any requirement that contact with the children take place in a specific place such as the home of the paternal grandparents. I am satisfied that there is no other evidence relating to the needs of the children which would likewise compel that conclusion.
There is no issue in this case about the children’s views. As I have indicated, the evidence suggests good relationships between the children and their parents, and the significant other people in their lives. The father raises issues about the mother’s willingness to facilitate and encourage the children’s relationship with him. That is a matter for a final hearing if that becomes necessary. The main consideration in this case is the likely effect of change on the children.
It must be recognised that this is a very disruptive time in the children’s lives. Their parents have separated. They initially moved out of the family home, back into it, and then moved out again. On the wife’s evidence, it is likely that they will move into rented accommodation. They have had limited overnight time away from their mother. The evidence of the psychologist suggests that both the mother and the children are anxious, but that evidence also suggests that overnight time should not exceed two nights per week. This points to the unsuitability of the father’s proposal for block time of five nights during the course of his current holidays. I make the observation that that sort of block time may come in time, but not for now.
The best professional evidence I have in relation to the children is to limit it to no more than two nights away. In this regard I do not intend to separate these siblings, so even if it were the case that X could cope with more than two nights away, I would not be prepared to separate X from Y. Having regard to the evidence before me and what I have noted, I propose to make orders that would limit the overnight time that the children have with their father to no more than two nights in any one-week period. I note, however, that with further evidence, particularly a Family Report, this is a situation that might be reviewed.
In terms of practical difficulty and expense, there are issues that arise because of geography, rosters, work and day care commitments, all of which I consider to be manageable for the time being. The parents seem to have managed the practicalities reasonably well to date.
In terms of parenting capacity, whilst there is some criticism in the affidavits of parenting capacity, there is no evidence before me in respect of which I would make an adverse finding prior to a final hearing. In terms of attitudes to the children and responsibilities of parenthood, again, there is nothing before me that would suggest this is an issue for an interim hearing.
In terms of family violence, I do not apprehend the mother’s case to be run on that basis, and it is not an issue of significance at an interim hearing. The father is apparently on leave for six weeks.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 24 August 2011
0