Ferraro and Ferraro

[2010] FamCA 142

FAMILY COURT OF AUSTRALIA

FERRARO & FERRARO [2010] FamCA 142

FAMILY LAW – CHILDREN - interim orders - minimal evidence.
FAMILY LAW – INJUNCTIONS - Injunctions relating to exclusion from business by both parties - Need for evidence to show that there is likely to be damage to interests.

Family Law Act 1975 (Cth)

Davis v Davis (1976) FLC 90-062
Goode & Goode (2006) FLC 92-386
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627

APPLICANT: Ms Ferraro

RESPONDENT: Mr Ferraro

FILE NUMBER: MLC 1293 of 2010

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: DR Ingleby

SOLICITOR FOR THE APPLICANT: Kliger Partners

COUNSEL FOR THE RESPONDENT: MR Holmes

SOLICITOR FOR THE RESPONDENT: McDonald Slater & Lay

Orders

1. Until further order, the child X FERRARO born … June 1998 live with the husband as follows:

   (a)from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing on Thursday 4 March 2010;

   (b)from the conclusion of school on Thursday until the commencement of school on the following Friday morning in each alternate week commencing on Thursday 11 March 2010.

2. Until further order, the child X live with the wife at all times other than those set out in paragraph 1.

3. That pursuant to s.65DA(2) and s.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 these particulars are included in these orders.

4. That the parties attend a conciliation conference with a registrar of the Court at 11.00am on 17 May 2010 for the purposes of making a genuine effort to resolve all financial issues in dispute between them.

5. For the purpose of paragraph 4, each party exchange with the other, all of the documents required for a conciliation conference and otherwise comply with the provisions of Rule 12.05 of the Family Law Rules 2004 including the preparation of a financial questionnaire and balance sheet that would comply with the terms of Rule 12.06.

6. That the interim applications contained in the application filed on 12 February 2010 and the interim orders sought in the response filed 22 February 2010 are otherwise dismissed.

7. That the parties have liberty to apply for further interim parenting orders after the completion of the conciliation conference and after they have received a report from Dr N or other similar psychologist.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1293  of 2010

Ms Ferraro

Applicant

And

Mr Ferraro

Respondent

REASONS FOR JUDGMENT

1. Mr Ferraro and Ms Ferraro are husband and wife. They have one child of their marriage X who is 11 years old.

2. By interim applications, I am asked to determine two things:

   (a)what time should X spend with his father on an interim basis; and

   (b)of the two parties, who should have what occupancy and control of some business premises.

3. That is a simplistic analysis of the problem and does not reflect what each party sought in their initial applications.

4. Because this is an urgent duty list matter time for which was abridged, I propose only to deal with the matters on the way in which the parties presented them.

5. Each party filed affidavit material to which I shall refer. Each was represented by experienced counsel who objectively argued the relevant issues; I found their submissions helpful.

6. There is much emotional energy being expended in this case which is a problem because both parents have not only a vested interest in the business but also in their son.

7. The husband is 40 years of age and the wife 46.

8. The parties married in 1995 and separated on 28 October 2009. Thus, the marriage was one of some length.

9. The child was born in June 1998. He has lived predominantly with his mother. The husband said that the wife has endeavoured to control that arrangement.

10. In respect of the child, the husband initially sought a week-about arrangement but said for the interim purposes, because of the paucity of evidence, he was prepared to compromise. He clearly wants an equal shared time arrangement.

11. The wife initially sought that the husband have limited and conditional time with the child. She sought sole parental responsibility. There was no evidence that would have enabled me to make either of the orders sought by the wife. Having said that, there was no evidence that would have enabled me to make the orders sought by the husband either.

12. The wife’s counsel Dr Ingleby suggested a compromise which, after discussion, was pushed out to the husband spending time with the child from:

    (a)after school on Thursday until before school on the following Monday in one week; and

    (b)overnight from after school on the alternate Thursday until the commencement of school on the Friday morning.

13. The husband’s counsel said that his client wanted another overnight in the alternate week as a compromise.

14. Both parties have agreed to engage Dr N as an expert but it may be more sensible for them to enlist her assistance to resolve their parental conflict first.

15. The evidence of the parental conflict was also limited. The wife alleged that there was a confrontation in November 2009 at a skate park. I have concluded that because it was at a skate park, the child was present. If so, the parents ought to be ashamed of themselves.

16. According to the wife, the parties argued and the husband put his face to hers repeating “joint joint” which I presume was reference to some type of shared care of the child. If so, there can be no doubt that as at November 2009, the husband’s position was clearly known to the wife. She said that he called her a “slut” and she slapped him.

17. The husband’s version was that the wife called him “a cunt” and she “punched” him. Other men including a relative of the wife apparently arrived.

18. It will be apparent that the scene was unpleasant and reflects poorly on both.

19. The wife said that the husband had spent time with the child after separation but she was concerned that he interrogated the child about what she was doing and where she was going.

20. The husband did not specifically respond to the allegation about interrogating the child but focused upon what he wanted. The wife expressed concern about the husband’s sexual activities. Her evidence on that issue was unhelpful and inadmissible. The husband stated that he would not introduce another woman into the child’s life until it was appropriate.

21. The husband set out his living arrangements and described his relationship with the child as “great”. He expressed concern about the child’s welfare if he continued to live with the wife because she could not “control her anger”. The evidence does assist me to determine what those statements mean.

22. It is important to note that the husband was (and is) seeking a week-about arrangement with the child including on an interim basis pending final hearing.

23. In Goode & Goode (2006) FLC 92-386, the Full Court referred to interim hearings and said that:

    (T)he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

    …

    It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make. 

24. Much has previously been said about the fact that when making a parenting order, the court must apply a presumption of equal shared parental responsibility (see s 61DA). If applied, that presumption requires the court to contemplate a number of scenarios for children the first of which is that they should live with the parties equally in terms of time.

25. In Goode, the Full Court said:

    While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed.  First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable.  Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable.  Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.

    In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.  This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

26. Section 61DA(3) says:

    When the court is making an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.

27. For reasons which follow, in this interim hearing, it is not appropriate to apply the presumption.

28. The arrangement for the child’s care before separation occurred in September 2009 seems to have been that the wife was principally responsible for his daily movements and management. Upon separation, the child went to live with the wife and has had time with the husband albeit under unhappy and limited circumstances.

29. In reality, there was no evidence that would enable me to determine any of the critical factors set out in s 60CC from the wife’s material. I have inferred that each party sees the other largely as a responsible parent because each was offering considerable time to the other. The evidence is that the husband wanted time with the child but the wife was controlling and limiting it. S 60CC(4) requires a court to consider whether a parent has pursued time with a child and also whether the other parent has facilitated it. I could not make findings on this evidence.

30. I do not know of the child’s views nor how he would manage a change from the existing pattern that he knew both before and after separation.

31. Because the husband said that he had flexibility in his business operations, I have inferred that he had the time to care for the child and could do all of the things with which the child was familiar. However, there is little co-operative parenting happening and as such, a sharing arrangement is fraught with difficulty.

32. The presented facts in this interim hearing are of necessity, truncated. Because there is:

    (a)      no co-operation between the parties;

    (b)considerable angst about how the other parent would look after the child; and

    (c)no evidence about how the child would settle into a changed routine,

    I find that on an interim basis, it would be best for the child if he had a routine and a base which disrupts his life little but which also gives him an opportunity to spend some quality time with his father.

33. If after discussing matters with Dr N, the parties still cannot reach agreement, they can return to the Senior Registrar’s list of cases to argue why things should be different from what I am going to order.

34. In my view, pending proper examination of all of the parenting issues and evidence, the proposal set out in paragraph 12 above is in the child’s best interests. I shall make formal orders along those lines.

35. I turn then to the injunction relief sought by both parties.

36. The major business structure of the parties is conducted through C Pty Ltd. C’s business is the wholesaling personal care products. The husband and wife are directors and shareholders of the company. The husband was at pains to point out that the wife did not take on that role for 18 months after the commencement of the company but on any view, that would have meant that she became a shareholder and director around 2005.

37. C Pty Ltd owns Unit 2, … D Road, F, from which premises, the business is conducted. This property was bought with funds obtained through a mortgage encumbering the home in which both parties have an interest. Both contributed to it.

38. Throughout the marriage, both parties were employed or engaged in business. The wife said that the husband was engaged as an employee sales representative and she as an assistant accountant until the child’s birth. In 2003, the business was established and the wife said that she was in fulltime employment there. The husband disputed that saying that she was at home for 5 years after the child was born and then “attended” the business 5 days per week. Little turns on that period because the only inference I can draw is that both parties worked diligently and established the business in which they were both engaged.

39. I am satisfied on the limited evidence that the husband and wife both have a significant entitlement not only to the business but to the real property from which it is conducted.

40. The parties differed as to what happened after separation occurred in what appears to have been acrimonious circumstances. The wife’s position was that she did not go to the premises except to draw the wages for the parties and staff and to pay accounts. That position continued until December. The husband said that the wife did not go to the business at all until December. However, he said the wife insisted on taking over the paying of accounts and that continued until January. This, he acknowledged, was for about one and a half to two hours per week on a Wednesday. How that happened when she did not go to the premises at all is unclear. What it does indicate is that the wife had not abandoned the business or shown no interest in the financial matters.

41. From December or January, the wife returned to the business three or four days per week but only for limited hours each day. The wife said that she was fulltime.

42. Ms S provided an affidavit for the husband. She is an employee of the business and her evidence was that the wife attended from January for approximately 2 hours on 2 or 3 days per week. She said the wife did not attend in the week commencing 15 February. That was just days before this hearing.

43. The husband gave no evidence about the impact on the business or upon him of the wife’s continued attendance at the business. The wife gave no evidence about what impact the husband’s attendance on her there would be if he continued to go in and out doing the tasks that he had always done. The husband’s evidence was that he had engaged three staff to run the business because of what had occurred in September.

44. Ms S said that she had not been able to discuss issues about the operation of the business with the wife who had become “unapproachable and intimidating”. No particulars were given.

45. Both the husband and Ms S set out statements in their affidavits about the wife taking cash and products from the business.

46. The assertions of the husband about the wife taking things from the business are not admissible. The assertions of Ms S are vague and leave open inferences as to why an owner of a business might be taking products or cash. I could not find on the evidence presented by the husband that there has been fraud or impropriety on the part of the wife. Just what the statements that the takings have been reduced or the products unaccounted for, mean, will remain an issue for any contested final hearing. There is no accounting evidence to suggest that a director has defalcated or acted outside of directorship responsibilities.

47. Mr Holmes on behalf of the husband submitted that the current situation was untenable because of the actions of the wife and her problems with the staff.

48. Dr Ingleby on behalf of the wife submitted that there was no basis to exclude both parties but there was a basis to make compromise orders which acted as injunctions to effectively keep the parties apart. The dilemma with that submission is that it does not deal with the tenuous relationship between the wife and the staff. The wife said the husband claimed he would sit along side her if she stayed in the premises. If that is so, perhaps the state family violence legislation needs to be contemplated.

49. In a truncated hearing such as this, the court cannot determine contested facts on untested evidence. The assertions are not particularised nor corroborated. The evidence of Ms S does little to advance the husband’s case. That means that the evidence upon which I can determine the issues is very limited.

50. The power to make orders of the nature sought by both parties is set out in s 114 (1) of the Act. It reads:

    In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

    (a)an injunction for the personal protection of a party to the marriage;

    (b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

    (c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

    (d)an injunction for the protection of the marital relationship;

    (e)an injunction in relation to the property of a party to the marriage; or

    (f)an injunction relating to the use or occupancy of the matrimonial home.

51. In the definition of matrimonial cause in S 4, the proceedings contemplated in s 114 are described as proceedings between the parties to a marriage with respect to the property of the parties or either of them, being proceedings arising out of the marital relationship. That means that these proceedings have to be incidental to the property proceedings. In this case, the underlying purpose of both parties seems to be the protection of their respective interests which will, in time, be subject to division.

52. There is on foot, an application for the court to determine the division of property between the parties and as such, these applications relate to proceedings arising out of the marital relationship.

53. Dr Ingleby submitted that to establish an entitlement to the order to exclude the wife, the husband had to show that it was first necessary to make the order. I agree with that submission. The authorities of this Court have traditionally concerned homes about which the parties are in dispute. There is little difference in respect of the principles between homes and, as in this case, a business premise.

1. In Davis v Davis (1976) FLC 90-062 the Full Court said at 75,309:

   The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper.  The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

2. In Sieling v Sieling (1979) FLC 90-627, the Full Court examined s 114 saying at 78,264:

   The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant's interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

3. In S & S [2002] FamCA 69, the Full Court reviewed all of the various authorities and then said:

   There are no words of limitation in s 114 other than the grant of the injunction must be "proper".  But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it. 

4. In S & S, the Full Court was dealing with a matrimonial home but the sentiments are the same here. The Court said:

   An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.  We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   "It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…"

   Butler Sloss LJ described it as "an extreme order …that should be looked at with the greatest possible care" in Tuck v Nicholls [1989] 1 FLR 283 at 286, and as an “exceptional remedy" in Silvester v Silvester [1997] EWCA Civ 1788.

5. There is evidence that each party has an entitlement to this property and to the business.

6. There is no evidence of hardship that would be caused by either party if the orders were made or not made.

7. There is evidence by each party that their respective interests would be prejudiced by the orders not being made because the party who would remain in the business would have control of stock and finances but that evidence does not establish on the balance of probabilities that something untoward has occurred that if not stopped, would lead to the damaging of the interests of the other party to such an extent that it could not be rectified at a final hearing.

8. Each party has legal obligations under the Corporations law as a director of C Pty Ltd. No action or application appears to have been taken in that regard. No assertion has been made that the accounts are not in proper order.

9. Each party needs to establish that there will be consequences contrary to the protection of the parties’ property or the parties themselves if the order is not made. If both parties can show that that is necessary then the balance of convenience is the way to determine what is proper. That is not the situation here.

10. In this case, in final submissions, the proposal of the wife was that the parties should have various times to access the premises. Commendable as that proposal was as a compromise, for the reasons set out above, there is no evidence that would justify the intervention of the court at this time. There is no evidence that such an arrangement will or will not work. There is no evidence that the parties are regularly in the premises at the same time.

11. I am not satisfied that it would be proper to make the exclusion order of the husband or the wife.

I certify that the preceding Sixty Four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  2 March 2010