GAMAGE & GAMAGE
[2017] FamCA 742
•22 September 2017
FAMILY COURT OF AUSTRALIA
| GAMAGE & GAMAGE | [2017] FamCA 742 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders for the exclusive occupation of the former matrimonial home – Where the wife sought injunctions in respect to her personal space and personal protection – Court finds no proper basis for those orders to be made in the absence of evidence of the husband engaging in threatening, intimidatory or other inappropriate conduct – Where the husband sought that the former matrimonial property be sold – Where the Court rejects that application in these interim proceedings. FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Where the wife sought orders for urgent spousal maintenance and interim spousal maintenance – consideration of section 75(2) factors – Court finds that the wife is unable to adequately support herself on her current limited income – Court finds that the husband has the capacity to pay periodic spousal maintenance in the sum of $163 – Orders for the husband to continue paying the mortgage in respect to the former matrimonial home to the amount of $1136 per week and for the husband to continue paying outgoings in respect to the former matrimonial home in the amount of $150 per week. |
FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where there are three children of the parties’ marriage – Where the youngest two children attend state schools and the eldest child attends a private school – Where the father sought orders for the eldest child to be removed from private school and enrolled in state school – Where the child’s treating psychologist recommended against enrolling the child in private school – Court finds that it is not in the child’s best interests to be removed from private school and enrolled in state school.
| Family Law Act 1975 (Cth) ss 43(1), 60B, 60CA, 60CC, 68B, 68F, 68E, 72(1), 74(1), 75(2), 77 |
| Ashton & Ashton (1982) 8 Fam LR 675 |
| APPLICANT: | Ms Gamage |
| RESPONDENT: | Mr Gamage |
| FILE NUMBER: | SYC | 4553 | Of | 2017 |
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 21 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Suburb B & Barry Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Capelin |
| SOLICITOR FOR THE RESPONDENT: | R J Thomas Solicitor |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Husband shall do all acts and things and sign all documents necessary to meet all mortgage payments in respect of the property at B Street, Suburb B (“the Suburb B Property”) and any loan secured by that mortgage to the extent of $1136 per week averaged over a 12 month period.
The Husband shall be restrained by injunction from doing any act or thing to sell, assign, encumber, and transfer or otherwise deal with his interest in either the Suburb B property or the property located at D Street, Suburb E without giving the Wife not less than 14 days’ notice of his intention.
The Husband shall do all acts and things and sign all documents necessary to meet the outgoings in respect of the Suburb B property, including but not limited to council rates, water rates, electricity and/or gas charges and all insurances to the extent of $150 per week averaged over a 12 month period.
Pursuant to sections 72 and 74 of the Act, the Husband forthwith pay to the Wife by way of periodic spouse maintenance the sum of $163 per week.
In the event that either party seeks further disclosure from the other, then, within 14 days of the date of these orders, that party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.
The party receiving the request for further disclosure pursuant to Order (5) above must, within 21 days after receiving notice, serve on the requesting party a list of documents identifying:
(a)The document(s) in that party’s possession that are within the class of documents sought by the other party;
(b)The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and
(c) The document(s) for which privilege from production is claimed.
Within 14 days of receiving the list of documents referred to in Order (6) above, the requesting party must, in writing, ask the disclosing party to:
(a) Produce the document(s) for inspection; or
(b) Provide a copy of the document(s).
The disclosing party must within 14 days after receiving a request pursuant to order (7), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):
(a) In relation to which privilege from production is claimed; or
(b) That are no longer in the disclosing party’s possession or control.
In the event that a party disputes an assertion as to the non-existence or non-possession of a document or documents, or disputes a claim for privilege, that party must, within 28 days of receipt of the list of documents referred to in Order (6) file and serve an Application pursuant to Rule 13.22 of the Family Law Rules 2004 (Cth) supported by an affidavit addressing those matters set out in Rule 13.22(3) and any other relevant matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gamage & Gamage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4553 of 2017
| Ms Gamage |
Applicant
And
| Mr Gamage |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application for interim property orders and, also, orders in respect to schooling for one of the parties’ children.
There are three children of the relationship. The child, F, aged thirteen, is in high school in year 8 at G School. Of the two younger children, H, aged ten, is in year 5 at J School and the youngest child, K, aged 7, is in year 2, at L School.
From the date of separation until May 2017 the husband provided financial support to the wife by permitting her unrestricted access to a credit card facility. The husband also paid outgoings in respect to the former matrimonial home and expenses associated with the wife’s use of a motor vehicle. The former matrimonial home is located in the Sydney suburb of Suburb B.
The husband has also paid the children’s medical fees and, until July 2017, the school fees for F in respect to his attendance at G School.
Since May 2017 the wife has not had access to the husband’s credit card. This, together with uncertainty regarding the father’s commitment to meeting the other expenses referred to above, has given rise to the wife’s application for financial orders including spousal maintenance.
As a result of discussions on the day of the interim hearing, with the exception of schooling, the parties were able to resolve interim parenting matters. The parties’ agreement was reflected in consent orders that were made on that day. The parties were also able to agree upon a methodology for the valuation of the husband’s interest in a business trading as the M Pty Ltd.
The issues that remained for adjudication are set out below.
Orders sought
The interim orders as initially sought by the wife in her Initiating Application filed 17 July 2017 were as follows;
1. The following definitions for the purpose of these Orders:
1.1. "Act" means the Family Law Act 1975 (Cth);
1.2 “Administrative assessment" means the administrative assessment of child support issued by the Department of Human Services (Child Support), reference … in respect of the children, [F], [H] and [K];
1.3. "[Suburb B] mortgage" means the mortgage from the Husband to the Bendigo & Adelaide Bank Limited registered no the [Suburb B] property and secured by mortgage registered no. …;
1.4. "[Suburb B] property" means the property at [B Street, Suburb B], being the property described in title reference … and which is registered in the sole name of the Husband;
1.5. "Husband/Father" means [Mr Gamage], born … 1971;
1.6. "[Suburb E] mortgage" means the mortgage from the Husband to the Bank of Queensland registered on the [Suburb E] property and secured by mortgage registered no. …;
1.7. "[Suburb E] property" means the property located at [D Street, Suburb E], being the property described in title reference … and which is registered in the sole name of the Husband;
1.8. "Parties" means the Husband and the Wife;
1.9. "[K]" means [K Gamage, born … 2010;
1.10. "[H]" means [H Gamage], born … 2006;
1.11. "[F]" means [F Gamage], born … 2003;
1.12. "Wife/Mother" means [Ms Gamage], born … 1971.
Occupation of the Suburb B Property
2. Pending further Order, the Wife be granted exclusive occupation of the [Suburb B] property.
3. Pending further Order, the Husband shall do all acts and things and sign all documents necessary to meet all mortgage payments in respect of the [Suburb B] mortgage and any loan secured by that mortgage and shall indemnify the Wife from all liability arising thereunder.
4. Pending further Order the Husband shall do all acts and things and sign all documents necessary to meet all payments in respect of the home building insurance for the [Suburb B] property and shall be restrained by injunction from doing any act or thing to interfere with the current insurance policy with NRMA, policy no. ...
5. In the alternative to Interim Order 4 pending further Order the Husband shall do all acts and things and sign all documents necessary to provide the Wife with the authority to insure and or obtain all and documents necessary to insure the [Suburb B] property and shall be restrained by injunction from doing any act or thing to interfere with the current insurance policy for the [Suburb B] property and or any policy of insurance that the Wife may seek to enter into in order to insure that property.
6. Pending further Order, the Husband shall be restrained by injunction from doing any act or thing to sell, assign, encumber, transfer or otherwise deal with his interest in the [Suburb B] property.
7. Pending further Order, the Husband shall do all acts and things and sign all documents necessary to meet the outgoings in respect of the [Suburb B] property, including but not limited to council rates, water rates, electricity and/or gas charges and all insurances.
Injunction
8. Pending further Order, the Husband be restrained by injunction from coming within 500 metres of the [Suburb B] property or any residence or premise occupied by the Wife.
9. Pending further Order, the Husband shall be restrained by injunction from assaulting, molesting, harassing, threatening or otherwise interfering with the Wife.
10. Pending further Order, the Husband shall be restrained by injunction from doing any act or thing to interfere with the Wife's quite enjoyment of the [Suburb B] property.
11. Pending further Order, the Husband shall be restrained by injunction from engaging in any conduct that involves the children in these proceedings or from discussing with the children any aspect of the proceedings.
Parenting
12. Pending further Order, [F], [H] and [K] live with the Mother.
13. Pending further Order, the Mother be permitted to do all acts and things necessary and sign all documents necessary to enable:
13.1. [F] to undergo such dental and orthodontic treatment as is recommended by his treating dentist and orthodontist.
13.2. [K] to undergo treatment for the removal of his adenoids as may be recommended by his treating surgeon, medical practitioner or paediatrician.
13.3. For the purpose of this Order the mother shall provide to the Father:
13.3.1. Notification of all surgery to be undertaken by [F] including particulars of the date, time, place of surgery and the name of the surgeon together with a copy of any post-operative medical report.
13.3.2. Notification of all surgery to be undertaken by [K] including particulars of the date, time, place of surgery and the name of the surgeon together with a copy of any post-operative medical report.
14. Pending further Order and failing agreement between the Mother and the Father, [F], [H] and [K] shall spend time with the Father as follows:
14.1. During school terms, on a two weekly cycle as follows:
14.1.1. in Week 1, from 6.30 pm on Friday to 4.30 pm on Saturday;
14.1.2. in Week 2, from 6.30 pm on Saturday until 4.30 pm on Sunday; and 14.1.3. at other times by agreement.
14. 2. On special occasions as follows:
14.2.1. on the Father birthday, in the event it falls on a weekend from 9.00 am until 5.00 pm and, in the event it falls on a week day, from the conclusion of school until 8.00 pm;
14.2.2. on [F], [H's] and [K's] birthdays, as agreed.
14.2.3. on Father's Day, from 9.00 am until 5.00 pm;
14.2.4. from 10.00 am on 26 December to 5.00 pm on 27 December in years ending in an odd number;
14.2.5. from 4.00 pm on Christmas Day until 8.00 pm on Boxing Day in years ending in an even number.
14.3. During school holidays by agreement and, failing agreement, for the first week of each school holiday period commencing at 9.00 am on the first Saturday and concluding at 9.00 am on the second Saturday of the said holiday.
14.4. For the purpose of Order 143 the school holidays shall commence on the first Saturday when all three children are on school holidays.
15. For the purpose of the children spending time with the Father, changeover shall occur as follows:
15.1. where time commences from the conclusion of school, the Father shall collect the children from school;
15.2. in all other circumstances, the children shall be collected from and delivered to the home of the Mother.
Child Support Departure
16. By way of departure from the administrative assessment and pursuant to Section 117 of the Child Support (Administrative) Assessment Act 1989 the Husband pay, in addition to the administrative assessment, of child support for the children the sum of $1,000 per week periodic children for the children, [F], [H] and [K].
17. By way of departure from the administrative assessment and pursuant to Section 117 and 124 of the Child Support (Administrative) Assessment Act 1989 the Husband pay, in addition to the administrative assessment, school fees for the attendance by the children as is mutually agreed between the parties in writing and, in the absence of agreement, then in respect of [F], at [G School] and school fees shall include and mean the cost of tuition fees, school text books and materials, school and sporting uniforms, extracurricular tuition fees and school excursion fees.
Interim Financial - Mortgage
18. Pending further Order, the Husband shall do all acts and things and sign all documents necessary to meet the [Suburb B] mortgage instalments and for this purpose shall pay all loan repayments to Bendigo & Adelaide Bank Limited and or Bank of Queensland in respect of the loan secured by the [Suburb B] mortgage and shall indemnify the Wife in respect of all liability arising therefrom.
19. Pending further Order, the Husband shall do all acts and things and sign all documents necessary to meet the mortgage payments in respect of the [Suburb E] mortgage and for this purpose shall pay all loan repayments the Bank of Queensland in respect of the loan secured by the [D Street] mortgage and shall indemnify the Wife in respect of all liability arising therefrom.
Interim Financial - Spouse Maintenance/Property
20. Pending further Order the Husband shall pay to the Wife by way of urgent spouse maintenance pursuant to Section 77 of the Act an amount of $25,000.
21. Pending further Order pursuant to Sections 72 & 74 of the Act, the Husband forthwith pay to the Wife by way of periodic spouse maintenance the sum of $2,366 per week.
22. In the alternative to Order 21 and in the event that interim Order 18 is not made, pending further Order pursuant to Sections 72 & 74 of the Act, the Husband forthwith pay to the Wife by way of periodic spouse maintenance the sum of $3,366 per week.
23. Pending further Order and without concession, in addition to or in the alternative to interim Order 20, the Husband shall within 28 days of the date of these Orders pay the amount of $25,000 into such bank account as the Wife shall nominate as payment for interim property distribution.
24. The Husband do all acts and things and sign all documents necessary to transfer to the Wife registration and ownership of motor vehicle … .
Disclosure
25. The Husband shall provide within 7 days of the date of these Orders to the Wife a copy of all guarantees signed by or on behalf of the Wife, whether at the Husband's request or otherwise.
26. The Husband provide, within 21 days of the date of these Orders, all documents relevant to Rule 13.04 of the Family Law Rules and including documents requested in the letter dated 13 July 2017 from [Suburb B] and Barry Lawyers.
27. In the event the Husband fails to comply with any aspect of interim Orders 25 or 26 the Husband shall, within 28 days of the date of these Orders he shall, swear an Affidavit deposing to when the documents were last in his possession, custody or control and what he reasonably believes became of them.
28. In the event the Husband fails to comply with interim Orders 25, 26 and/or 27 within 28 days of the date of these Orders any Response filed by the Husband in these proceedings be struck out and the Husband not be permitted to file any further evidence except with the leave of the Court.
29. Upon the making of interim Order 28, the proceedings be listed for hearing on an undefended basis.
Valuation
30. Within 28 days of the date of these Orders, the Husband and Wife do all acts and things and sign all documents necessary to obtain a valuation of the Husband's interest in the business [MPL].
31. By way of implementation of Order 30, the Husband shall within 7 days nominate one of:
31.1 [N Valuers];
31.2. [O Valuers];
31.3. [P Valuers],
failing which the Wife shall nominate the valuer.
32. The Husband shall pay the costs of the valuation undertaken pursuant to Orders 30 and 31 in the first instance.
33. The Husband shall provide to the valuer so nominated all documents requested by the valuer within 14 days of a request being made.
Costs/Miscellaneous
34. Upon the Husband giving disclosure of his financial position, the Wife have leave to file an Amended Financial Statement.
35. The Wife have leave to serve short notice of this Application.
36. The Husband pay the Wife's costs of and incidental to this Application on an indemnity basis.
37. The Wife be granted leave to serve short notice of this Application.
The husband sought the following interim orders in his Amended Response filed 15 August 2017:
1. That forthwith the Husband and Wife do all acts and things and sign all documents necessary for the sale of the property at [B Street, Suburb B] (The [Suburb B] property) and after payment of all costs and expenses of sale and amounts necessary to discharge all mortgages on the property the net proceeds of sale be held on trust for the Husband and Wife pending final orders.
2. That following the sale of the [Suburb B] property the Wife relocate to rental accommodation in the [Suburb Q/Suburb B] area, within the catchment area for [Suburb Q] High School.
3. That following the making of order 1 above, the Husband pay to the wife the sum of $25,000 as an Interim property settlement to assist with relocation expenses.
4. That following the making of order 1 above the Husband pay to the wife the sum of $1000 per week by way of spouse maintenance to commence at the date of settlement of the [Suburb B] property, for a period of 12 months.
Schooling for F
5. That the parties do all acts and things and sign all documents necessary to cause the child [F], to be enrolled for attendance at [Suburb Q] High School, commencing in Year 9, 2018, and thereafter do all acts and things to facilitate [F’s] attendance at that school
Injunction
6. The Wife shall be restrained by injunction from engaging in any conduct that involves the children in the proceedings or from discussing any aspect of the proceedings with the children or denigrating the Husband in any way.
Costs
7. That the Wife pay the Husband's costs of the Interim application.
Interim orders made by consent on 21 August 2017, as amended by the slip rule on 31 August 2017
As noted, on 21 August 2017, the parties were able to reach agreement in respect to a number of matters in dispute and the following orders were made by consent:
Parenting
2. Pending further Order, [F], [H] and [K] live with the Mother.
3.Pending further Order, the Mother be permitted to do all acts and things necessary and sign all documents necessary to enable:
3.1.[F] to undergo such dental and orthodontic treatment as is recommended by his treating dentist and orthodontist; and
3.2.[K] to undergo a sleep study assessment as recommended by [Dr R] and the father shall meet the costs of such assessment.
3.3.For the purpose of this Order the Mother shall provide to the Father:
3.3.1.notification of all surgery to be undertaken by [F] including particulars of the date, time, place of surgery and the name of the surgeon together with a copy of any post-operative medical report; and
3.3.2.the Husband shall meet the costs of such treatment.
3.4.[K] to be assessed by a psychologist as nominated by the Mother.
3.5.Deleted
4.Pending further Order and failing agreement between the Mother and the Father, [F], [H] and [K] shall spend time with the Father as follows:
4.1.during school terms, on a two weekly cycle as follows:
4.1.1.in Week 1, from 6.30 pm on Friday to 4.30 pm on Saturday;
4.1.2.in Week 2, from 6.30 pm on Saturday until 4.30 pm on Sunday; and
4.1.3.at other times by agreement.
5.For the purpose of the children spending time with the Father, the children shall be collected from and delivered to the home of the Mother.
Notation
5A.The father shall within 14 days of Dr R’s recommendation pursuant to Order 3.2 advise the mother whether he consents to [Dr R’s] recommendations.
Financial
6.The Husband forthwith do all acts and things and sign all documents necessary to transfer to the Wife registration and ownership of motor vehicle ... .
Valuation
7.Within 28 days of the date of these Orders, the Husband and Wife do all acts and things and sign all documents necessary to obtain a valuation of the Husband’s interest in the business [MPL].
8.By way of implementation of Order 7, the parties nominate [O Valuers].
9.The Husband shall pay the costs of the valuation undertaken pursuant to Orders 7 and 8 in the first instance.
10.The Husband shall provide to [O Valuers] all documents requested by him within 14 days of a request being made.
11.The Wife consents to Interim Order 6 sought in the Husband’s Response filed 15 August 2017.
12.The Husband consents to interim Order 11 sought in the Wife’s Initiating Application dated 17 July 2017.
Remaining Issues requiring adjudication
Accordingly the remaining matters to be dealt with, from the wife’s perspective, were as follows:
·The wife’s orders in respect to exclusive occupation of the Suburb B property as set out in proposed orders 2, 3, 4, 5, 6 and 7.
·The wife’s injunctions as set out in proposed orders 8, 9 and 10.
·The wife’s orders in respect to medical treatment concerning K, being proposed orders 13.2 and 13.3.2.
·The wife’s interim financial orders concerning spouse maintenance/property, being proposed orders 20, 21, 22 and 23.
·The wife’s orders in respect to disclosure, being proposed orders 25, 26, 27, 28 and 29.
·The wife’s miscellaneous orders concerning costs and leave to file an amended financial statement after further disclosure by the husband.
The remaining matters to be dealt with, from the husband’s perspective, were as follows:
· Whether the former matrimonial home should be sold; and
· Whether the child, F, should be enrolled at Suburb Q High School for 2018.
EVIDENCE
The wife relied upon the following documents:
·Initiating Application filed 17 July 2017;
·Financial Statement filed 17 July 2017;
·Affidavit of Ms Gamage filed 17 July 2017; and
·Affidavit of Ms Gamage affirmed and filed 18 August 2017.
The wife tendered the following documents:
·Case Outline and Chronology (“Exhibit W1”); and
·The husband’s Tax Agent Portal Statement dated 16 August 2017 (“Exhibit W2”).
The husband relied upon the following documents:
·Amended Response filed 15 August 2017;
·Financial Statement filed 15 August 2017; and
·Affidavit of Mr Gamage affirmed and filed 16 August 2017.
The husband tendered the following documents:
·Chronology (“Exhibit H1”).
Background
It is not possible in interim proceedings to make findings in respect to disputed facts. Nevertheless, having regard to the chronologies provided by each of the parties, it appears that there is agreement in respect to the following.
The wife was born in 1971 in Sydney. The husband was born in 1971 in Country S.
The parties commenced cohabitation in 2001, married in 2003 and separated on 8 March 2016.
In May 2002 the parties purchased a property at T Street, Suburb U.
In 2003 the parties’ son F was born. F is now 13 years old.
In 2006 the parties’ daughter H was born. H is now 10 years old.
In 2009 the parties moved into the former matrimonial home at B Street, Suburb B.
In 2010 the parties’ second son K was born. K is now 7 years old.
In August/September 2016 an apartment at Suburb E was purchased.
Exclusive Occupation
The Law
Counsel for the wife stated that the wife’s application for orders for the exclusive occupation of the former matrimonial home was made pursuant to section 68B of the Family Law Act1975 (Cth) (“the Act”). That section relevantly provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
or
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
In Jyotisha and Jyotisha and Anor [2016] FamCA 738 at paragraph 15, Hogan J said that in determining the manner in which the Court will exercise its discretionary power to make an order for one party to the marriage to have exclusive occupation of the former matrimonial home:
Relief should not depend merely on the balance of convenience or hardship; rather, the Court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the order sought.
In this matter, the husband has voluntarily moved out of the former matrimonial home and obtained his own accommodation. The wife has been in sole occupation of the former matrimonial home since separation.
The basis upon which the wife sought orders pursuant to section 68B were stated to be to avoid the children being exposed to their parents’ conflict. In that context, counsel for the wife referred to the:
… somewhat strained relationship between the husband and wife and the minimum of time that the father has now elected to spend with the children that in those circumstances it’s difficult to justify why it is that the husband should continue to attend [the home].[1]
[1] Transcript of proceedings dated 21 August 2017 at page 7.
The wife also referred to “some spirited email correspondence” between the parties.[2]
[2] Ibid.
In referring to the “disagreement” between the parties, counsel for the wife acknowledged that:
At the moment there is no example of [the husband] attempting to come into the property or there being a ruckus that would expose the children…[3]
[3] Ibid at page 8.
In the absence of evidence that the husband has inappropriately interfered with the wife’s quiet enjoyment of the former matrimonial home, or engaged in conduct that could reasonably be said to adversely impact upon the children, there is no basis for making an order for exclusive occupation of the Suburb B property.
In making that determination, I have also had regard to the decision of the Full Court in Sholte v Sholte.[4] In that case, the Full Court (per Kay, Holden and Monteith JJ) considered relevant Australian and English authority and, consistent with that authority, agreed that an order for exclusive occupation “should be looked at the greatest possible care” and, further, “must not be allowed to become a routine stepping-stone on the road to divorce”.
[4][2002] FamCA 59 at [38-39].
Injunctions in respect to the person
Proposed orders 8 and 9 as sought by the wife seek injunctions in respect to her personal space and personal protection.
The wife stated that the injunctive relief is also sought pursuant to section 68B of the Act.
The first point to note is that the injunctions sought by the wife are inconsistent with order 5 which was made by consent on 21 August 2017. That order relates to the children being picked up and dropped off at the former matrimonial property and has been set out above. The effect of the order would have the children dropped off half a kilometre down the road.
The second point is that there is no evidentiary basis for the proposed orders.
In Oates & Crest [2008] FamCAFC 29 at paragraph 76 the Full Court confirmed that an injunction restraining a citizen from passing over a public street whether they need to do so or not is a substantial curtailment of that citizen’s right of freedom of movement.
The applicant seeking an injunction order bears the onus of satisfying the Court that the circumstances justify the making of that order.[5]
[5]Sieling and Sieling (1979) FLC 90-627.
The basis upon which the injunctions are sought were said to be that the husband’s cavalier attitude to communicating with the wife “would suggest that he still attempts to dictate from afar”.
Specifically, reference was made to paragraphs 29 through to 34 to the wife’s affidavit dated 18 August 2017 which were said to contain evidence that is indicative of the exchanges that occur between the husband and wife that support the contention that “he tries to rule from afar”.[6] Reference was also made to the affidavit filed by the wife on 17 July 2017 which was similarly said to be indicative that the husband “is attempting to dictate to the mother and she finds that that’s (sic) stressful”.[7]
[6] Transcript of proceedings dated 21 August 2017 at page 10.
[7] Ibid.
It is a particularly serious matter for the Court to make an order that restrains the freedom of movementof a person.[8] Such an order is “coercive in nature”[9] and should only be made where there is a proper basis for doing so. In terms of the wife’s physical safety, there is an absence of evidence of the husband engaging in threatening, intimidatory or other inappropriate conduct in respect to the wife in the period subsequent to the parties’ separation.
[8] Sampson & Hartnett (No.10) [2007] FamCA 1365; Cales & Cales [2010] FamCAFC 237.
[9]Sampson & Hartnett (No.10) [2007] FamCA 1365 at [58].
Moreover, an injunction to prevent the husband coming into proximity of the former matrimonial home will do nothing to address the gravamen of the wife’s complaint that the husband tries to control her “from afar”.
In those circumstances, there was no proper basis for the wife to seek proposed orders 8 and 9. For similar reasons, in the absence of evidence of the husband interfering with the quiet enjoyment of the former matrimonial home currently occupied by the wife, the wife has failed to satisfy the Court that there is a proper basis for making proposed order ten as sought by her.
Medical Treatment for the Parties’ son
Order 13.2 seeks an order for the parties’ son, K, to undergo treatment for the removal of his adenoids to the extent that it may be recommended by his treating surgeon, medical practitioner or paediatrician.
The need for such an order was said to arise in the context of the parties agreeing for K to undergo a sleep study. Counsel for the wife stated that the wife is concerned that, depending on the outcome of that study, the child may need his adenoids removed. It was contended that the orders are necessary because of the parties’ poor communication and the possibility that they may not be able to agree on such surgery if it were to be recommended.
With respect, proposed order 13.2 is entirely premature. A decision as to whether such an order is necessary should be made when all necessary information is available, including the outcome of the sleep study.
Urgent Spousal Maintenance
The wife’s proposed order 20 seeks urgent spousal maintenance pursuant to section 77 of the Act in the sum of $25,000. That application is, with respect, misconceived.
Section 77 provides:
Urgent spousal maintenance cases
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
There are two preconditions to making an order for urgent spouse maintenance:
1. The party seeking such an order must be in “immediate need of financial assistance”; and
2.It is not practicable in the circumstances to determine immediately what order, if any, should be made.
In Sadlier & Sadlier [2015] FamCAFC 130 at paragraph 37 the Full Court referred to the reasoning of Nygh J in Ashton & Ashton (1982) 8 Fam LR 675 and said:
Urgent maintenance orders are often referred to as “stop-gap” orders which are provided to assist with an immediate need of the spouse until a hearing can be set down for spousal maintenance orders pursuant to ss 72 and 74 of the Act.[10]
[10] The Full Court also referred to Page & Page (1987) FLC 91-806.
In the Malcolm & Malcolm (1977) FLC 90-220 Watson SJ said that the purpose of an order for urgent maintenance pursuant to section 77 “is to provide emergency funding in those cases where the court is unable to determine immediately what order should be made”.
In this matter, the wife is continuing to live with the children in the former matrimonial home and the husband is continuing to meet the mortgage. Paragraph 37 of the wife’s financial statement filed on 17 July 2017 states that she has $11,529 deposited in a Commonwealth Bank account. In those circumstances she has not established an “immediate need for assistance”.
Moreover, as will be apparent, the wife has made an application for interim spousal maintenance and has moved for the Court to consider the application. There is therefore no need to consider any “stop gap” measures pending that occurring.
Interim spousal maintenance
The wife’s proposed orders 21 and 22 seek an order for interim spousal maintenance at different amounts depending upon whether the husband is to continue to pay the mortgage on the former matrimonial home.
Section 74(1) of the Act empowers the Court to “make such order as it considers proper for the provision of maintenance” in accordance with Part VIII of the Act.
Section 72(1) relevantly provides:
72 Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The issues to determine in these proceedings are therefore:
1.To what extent is the wife unable to support herself having regard to section 72(1) of the Act (i.e. the “gateway”[11] issue)?
2.What are the wife’s reasonable needs?
3.What capacity does the husband have to meet a spousal maintenance order, if such an order was to be made?
4.If (i) to (iii) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to section 75(2) of the Act?
[11]Hall & Hall (2016) 332 ALR 1 at [3].
Is the wife unable to adequately support herself?
The parties have three children under the age of 18. In considering the operation of section 72(1)(a) it is important to note that the concluding words of the subsection require the Court to have regard to the matters referred to in subsection 75(2) of the Act.[12]
[12] Ibid.
Relevantly, for the purposes of this case, section 75(2)(b) requires the Court to have regard to “the physical and mental capacity of each of them for appropriate gainful employment”. However, section 75(2)(l) also requires the Court to have regard to “the need to protect a party who wishes to continue that party's role as a parent”.
The husband argued that the wife has not satisfied the gateway requirement set out in section 72(1) because, having regard to her qualifications and prior work experience, the Court should be satisfied that she is not sufficiently exploiting her earning capacity. Specifically, it was argued that the wife has the capacity for full-time employment or, at least, employment involving more hours of work then she currently works.
That submission, with respect, overlooks the requirement to have regard to section 75(2)(l). In this case it is entirely reasonable for the wife to seek part-time employment to enable her to have more time available to attend to the needs of her three children. The husband argues that the fact that the wife’s working hours, on the days that she does work, extend beyond school hours indicates that her working part-time is motivated by something other than a desire to have more time available to care for the children.
I do not, with respect, accept the logic of that submission. It is quite reasonable for a working mother to work less that a full working week as a result of child caring responsibilities, even though on some of the days worked the wife’s hours of work extend beyond school hours. In that respect, it is one thing to make before and after school arrangements for the children on a few days of the week as opposed to making those arrangements every day of the working week.
Having determined that the wife is reasonably exploiting her earning capacity in the context of her child caring responsibilities, the next question becomes whether the wife can adequately support herself. In that respect, the wife has recently commenced part-time employment, receiving $737 gross per week.
In M & M [2006] FamCA 868 at paragraph 32, the Full Court, after referring to a number of earlier authorities, said that the question as to whether or not a person is able to support themselves “adequately” is:
not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.
(References omitted)
That issue was further considered in Brown & Brown (2007) FLC 93-316 at 81,455-56 where the Full Court summarised the principles to be applied in determining whether a party has the capacity to support themselves adequately as follows:
·The word “adequately” is not to be determined according to any fixed or absolute standard.
·The idea that “adequate” means a subsistence level has been firmly rejected.
·Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
·However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
Having regard to the needs of the wife as set out in her financial statement dated 17 July 2017, I am satisfied that the wife is unable to adequately support herself and hence the gateway requirement of section 72(1) is satisfied.
Needs of the wife
In determining the needs of the wife it is necessary to disregard the expenditure made by the wife in respect to the children.[13]
[13] Stein & Stein[2000] FamCA 102.
The needs of the wife are identified in her financial statement dated 17 July 2017 as being those set out in annexure B to Part N of that document in the amount of $900. This is on the assumption that the husband continues to pay the mortgage in respect to the former matrimonial home as well is the rates and expenses associated with that property. Currently those expenses are being met by the husband. Outgoings in respect to the motor vehicle are, however, included as an expense in the wife’s financial statement.
Counsel for the wife explained that the wife is not in a position to produce relevant receipts and accounts verifying those items of expenditure set out in annexure B to Part N of her financial statement because, to date, those expenses have been met by the husband and she is without the necessary paperwork to confirm payment.
Nevertheless, the amounts set out by the wife in respect to the various items that she has listed in annexure B to Part N of her financial statement appear to be reasonable. On that basis, I assess the wife’s need as being $163 per week. That figure is the difference between her weekly expenditure that I have identified and her income.
Capacity of the husband to pay
The husband’s 2017 Tax Return shows that the husband has a taxable income of approximately $320,000 per annum. After tax the net figure is approximately $190,000 or, converted to a weekly amount, $4000 a week. The husband’s financial statement filed 15 August 2017 states that he is paying and continues to pay the two mortgages, which are about $1136 per week for the former matrimonial home and about $650 for the Suburb E property. In addition, the financial statement states that the weekly outgoings for each property are approximately $150 for the former matrimonial home and about $60 for the Suburb E property.
In addition, in his financial statement filed 15 August 2017, the husband states that he has the following weekly expenses:
·Income protection insurance - $150 per week;
·House and contests insurance - $30 per week;
·Motor vehicle insurance - $30 per week;
·Motor vehicle registration - $30;
·Car hire purchase payments - $250 per week;
·Payments in respect to the children including for education, medical expenses and extra-curricular activities - $1200; and
·Other weekly outgoings, totalling $1942.
Accordingly, on the face of the husband’s Tax Return and his financial statement it appears that the husband’s weekly expenditure exceeds his net income by approximately $1,613 per week.
However there appears to be an overlap between the amount of $1200 set out in paragraph 31 of the husband’s financial statement filed 15 August 2017 and an item identified as being $170 for children’s expenses as set out in paragraph 60 of that document.
The expenditure in respect to motor vehicle expenses can also be removed from the assessment as these are identified by the wife as being her responsibility and have been included in assessing her needs.
Further, in circumstances where the children spend the majority of time with the mother, the amount of $500 identified in respect to food is in my view excessive. The amount of $340 per week or $17,680 per annum in respect to holidays is a misplaced priority.
Having regard to those matters, in my view a more reasonable amount in respect to the husband’s weekly expenses as set out in Part N of the husband’s financial statement is $1,442.
Further, there is no indication that, in calculating his weekly expenditure, the husband has taken into consideration a potential contribution from his current partner who is identified in paragraph 17 of his financial statement as being an occupant of his household and in receipt of an income of $60,000 per annum.
It is also of significance that, at paragraph 37 of his financial statement filed 15 August 2017, the husband states that he has funds in financial institutions totalling $14,508. Further, paragraph 57 of the husband’s financial statement indicates that he expects to receive a tax refund for the financial year ending 2017 in the sum of $47,000.
In those circumstances, I am satisfied that the husband has the capacity to pay the amount that I have identified as the wife’s need of $163 per week.
If, however, I am wrong in determining that the husband has sufficient funds available to enable him to meet that need of the wife, I note that in determining the “reasonable ability” of a party to satisfy an order for interim spousal maintenance the Court is not confined to considering only that party’s income, but rather:
Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[14]
[14] Maroney & Maroney [2009] FamCAFC 45 at [56].
In that respect, paragraph 2 of the husband’s financial statement filed 15 August 2017 identifies that he has equity in property of $494,021. Having regard to the husband’s income I am satisfied that, if necessary, the husband has the capacity to borrow against that equity in order to satisfy the needs of the wife that I have identified.
Appropriate orders
In circumstances where I am satisfied that the wife has a need for spousal maintenance in order to adequately support herself and the husband has the capacity to pay that amount, the question becomes what orders are appropriate having regard to the matters set out in section 75(2) of the Act.
Section 75(2) provides that the matters to be taken into account in considering whether to make an order for spousal maintenance are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In terms of section 75(2)(a), I note that the wife is 46 years of age and the husband is also 46 years of age. Both are in good physical health, although the wife states that she has suffered major depression, anxiety and extreme stress following the breakdown of her marriage with the husband.
In these interim proceedings, I am unable to determine the extent to which the wife’s mental health has been impacted by the parties’ separation as stated in her affidavit dated 17 July 2017. Nevertheless, I note that the wife has been able to obtain part-time employment despite those matters.
In terms of section 75(2)(b), the parties’ income, property and financial resources are set out in each of the parties’ financial statements filed in the proceedings. Both parties allege that their expenditure exceeds their income.
The husband alleges that the wife has failed to fully exercise her income earning capacity. I have previously indicated that it is reasonable to assume that the wife’s responsibilities as the primary carer of the parties’ two children would impact upon her ability to engage in full-time employment and therefore her income earning capacity.
In terms of section 75(2)(c), I note that the wife is the primary carer of the parties’ three children. This responsibility inevitably requires the wife to devote time to their care which it is reasonable to infer impacts upon her earning capacity. The wife will also inevitably incur expenses in providing for the children’s physical, emotional and intellectual needs.
In terms of sections 75(2)(d) and 75(2)(e), I have referred to what I have determined, on the available evidence, to be the reasonable expenses of each of the parties. I have also referred to the responsibilities of the wife in her capacity as the primary carer of the children.
In terms of section 75(2)(f), I note that section 75(3) requires me to disregard the entitlement of the wife to an income tested pension which is identified in paragraph 12 of the wife’s financial statement filed 17 July 2017.
I note that both of the parties’ financial statements set out their respective superannuation entitlements. The wife has an entitlement of $67,964 and the husband has an entitlement of $341,802. Both parties are at an age where it can reasonably be assumed that they will not access their superannuation entitlements for a number of years.
In terms of section 75(2)(g), I have referred to the fact that the parties are entitled to enjoy a standard of living that is reasonable in all the circumstances. In that respect, I note that the husband appears to have been sufficiently confident of his finances in that he has purchased a coffee machine for the sum of $2,278, although he states that he is repaying a loan in respect to that purchase in the sum of $102 per month.
In terms of section 75(2)(h), there is evidence that the wife is undertaking an examination to be registered as a Psychologist. It is appropriate that she obtains financial assistance to enable that to occur.
Section 75(2)(ha) is not a relevant consideration.
In terms of section 75(2)(j), in these interim proceedings, it is not possible to explore the extent to which the wife has contributed to the income earning capacity, property and financial resources of the husband. This will clearly be a significant issue at the final hearing.
In terms of section 75(2)(k), it is noted that the parties were married for a period of approximately 13 years. The wife has had intermittent periods of employment since the parties’ first child was born in 2003. I have also referred to the fact that the wife’s responsibilities as the primary carer of the parties’ three children could reasonably be inferred to have impacted upon her income earning capacity and her career progression.
In terms of section 75(2)(l), I note that the wife wishes to continue to be the primary carer of the children. It is reasonable that she should be able to do so.
Sections 75(2)(m) and (naa) are not relevant considerations in this matter.
Section 75(2)(n) is not a relevant consideration at this stage of the proceedings.
In terms of section 75(2)(na), I note that the husband is paying child support.
In terms of section 75(2)(o), I note that the husband currently resides with his new partner and there is little information before the Court as to the extent to which that person has a capacity to assist the husband in meeting the expenses of his separate household.
Sections 75(2)(p) and (q) are not relevant considerations.
Evaluation of section 75(2) considerations
In Redman & Redman (“Redman”),[15] the Full Court said that it was appropriate to maintain some flexibility in approach in considering an application for interim spousal maintenance.[16] Consistent with Redman, in Drysdale & Drysdale,[17] Coleman J exercising the appellate jurisdiction of the Full Court said:
It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s 77 of the Act, orders for interim maintenance are as their title implies. The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order.
[15] (1987) FLC 91-805.
[16] Ibid at 76,082.
[17] [2011] FamCAFC 85 at [40].
Having regard to those section 75(2) considerations to which I have referred, I am of the opinion that the wife’s responsibilities as the primary carer of the parties’ three children is the most relevant factor which justifies the Court making an interim spousal maintenance order.
As against the wife’s needs I note that, the husband has had the capacity to incur an expense in respect to a high end coffee machine which could not reasonably be classified as the essential item of expenditure.
I further note that even leaving aside the question as to the extent to which the husband has the capacity to meet the amount of spousal maintenance from funds that are available to him, he has the capacity to borrow against the equity that I have identified.
I further note that the payment of interim spousal maintenance can be taken into consideration at final hearing in the context of a Court determining what might be a just and equitable adjustment of the parties’ matrimonial property.
Accordingly, I have determined that the wife’s current circumstances are such that she is unable to support herself adequately and the husband has a capacity to provide financial support to the wife, at least to the amount that I have identified as being the wife’s reasonable needs.
As noted above, I have identified the wife’s needs at $163 per week on the assumption that the husband will continue to pay the mortgage, insurance and outgoings in respect to the former matrimonial home to the extent that those payments are set out in his financial statement.
There was some uncertainty as to whether the husband would continue to meet those expenses in the absence of an order to sell the former matrimonial home. The insurance on the former matrimonial home has, however, been paid a year in advance.
As will be discussed, in these interim proceedings, I do not intend to make an order for the sale of the former matrimonial home. In those circumstances the wife has proposed orders 3, 4, 5 and 7 which relate to the husband paying the mortgage, outgoings and insurance in respect to the former matrimonial home.
The insurance on the former matrimonial home has been paid for a year in advance and there is no basis for assuming that the husband will interfere with that policy being renewed in the future. Accordingly, I will not make proposed orders 4 and 5. Proposed order 7 nonetheless includes an obligation to pay insurance in respect to the Suburb B property as an item of expenditure in respect to the property.
As earlier noted, in determining that the husband has the capacity to pay periodic spousal maintenance in the sum of $163, I have factored in those expenses claimed by the husband in paragraphs 21 and 22 of his financial statement filed 15 August 2017 including the mortgage payments and outgoings in respect to the former matrimonial home. Accordingly, I will make orders for the husband to continue paying the mortgage in respect to the former matrimonial home to the amount of $1,136 per week and for the husband to continue paying rates and levies in respect to the former matrimonial home to the amount of $150 per week. The obligation to make those payments, as and when they fall due, will be averaged over a twelve month period.
Partial Property Distribution
The wife’s proposed order 23 seeks payment of the amount of $25,000 by way of “interim property distribution” in the event of an order not being made for urgent spouse maintenance pursuant to section 77 of the Act. As noted I have not made an order pursuant to section 77.
Consideration as to whether there should be an order for the interim distribution of property should not be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them”.[18]
[18] Stanford v Stanford (2012) 247 CLR 108 at 121 [40], and Medlow & Medlow [2016] FamCAFC 34.
In Medlow & Medlow[19] the Full Court said:
The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on [the respondent] to adduce such evidence.
[19]Medlow & Medlow [2016] FamCAFC 34 at [86]
In these interim proceedings I am not in a position to identify and value the full extent of the parties’ matrimonial property. The best evidence available is that which is set out in each of the parties’ financial statements. Based on those documents, the combined net value of the parties’ property is $511,550.
On its face, it could reasonably be expected that a partial distribution to the wife of $25,000 could be accommodated within that amount. That inference is not available however where, in this case, the wife made it clear that, at final hearing, she will be seeking a distribution that results in her retaining the former matrimonial home.
In those circumstances, the wife has not discharged the onus that is upon her of satisfying the Court that there would be sufficient funds available at final hearing to enable the interim distribution she seeks to be reversed.
Injunctions Concerning Property
The wife’s proposed order 6 seeks an order restraining the father from dealing with either the former matrimonial home or the property in which he lives at Suburb E.
As previously noted, an applicant for injunctive relief carries the onus of satisfying the Court that there is a basis for imposing restraints against another party.
The husband was not challenged on his contention that the Suburb E property was purchased with the consent of the wife for the purpose of meeting his accommodation needs. There is no evidence before the Court that the husband has or intends to sell, assign, encumber, transfer or otherwise deal with the either the Suburb B or Suburb E properties without the consent of the wife.
In the absence of such evidence the wife has not satisfied the Court that there is a basis for making an order in terms of her proposed order 6. Further, as earlier noted, it may be necessary for the husband to borrow against the equity that he has in one of those properties in order to satisfy the orders that I have made for the payment of periodic maintenance and expenses associated with the former matrimonial home.
It is reasonable, however, for the wife to receive appropriate notice of any proposed dealings with the Suburb B and Suburb E properties and I will make an order confirming that should occur.
Disclosure
The wife’s proposed orders 25, 26 and 27 seek orders requiring the husband to provide further disclosure. The parties’ obligation of disclosure is continuous and is adequately dealt with in the Family Law Rules 2004 (Cth) (“the Rules”). I propose making orders, consistent with those Rules that requires both parties to comply with their obligations of disclosure.
It should not be assumed that either party will fail to comply with the orders. Accordingly, there is no basis for making the self-executing orders proposed by the wife for the husband’s Response to be struck out in the event of any such non-compliance. Accordingly, I will not make proposed orders 28 and 29.
Application to sell the Suburb B Property
The first order sought by the husband is an order for the sale of the former matrimonial home.
The basis upon which the order is sought was explained by the solicitor for the husband as being a concern that the mortgage commitment will become unsustainable when, in October 2017, the mortgage changes from an interest only loan to principle and interest.
As a result, it was submitted that the mortgage obligation will increase from approximately $5,000 per month to $9,000 per month. It was further submitted that the husband’s remaining mortgage obligations will similarly move from interest only to principle and interest shortly after that date.
This increase, it was submitted, will make the mortgage unsustainable. It was therefore submitted that “the house needs to be sold to protect the equity still available in it from a mortgagee sale, which is the likely consequence in the very near future”.[20]
[20] Transcript of proceedings dated 21 August 2017 at page 28.
However, an order for the sale of the former matrimonial home would deprive the wife of the relief that she seeks at final hearing. As noted the wife’s application, in that respect, is for the former matrimonial home to be transferred into her name.
At this early stage of the proceedings I am not in a position to determine that the wife’s application for that to occur has no reasonable prosects of success.
Accordingly, it would not be appropriate, at this stage of proceedings, for an order to be made for the sale of the former matrimonial home.
That is not to say that the well-reasoned argument presented by the solicitor for the husband should lightly be ignored. A mortgagee sale would not be in the interests of either party or their dependent children. If the parties are unable to negotiate a more sustainable arrangement in respect to meeting the mortgage commitment on the former matrimonial home then this issue may need to be revisited to avoid the matter being be taken out of the parties’ hands by the Bank holding the mortgage.
Private School Education for the parties’ eldest son
The husband submitted that the Court should make an order for F to be enrolled in a state school for the commencement of the school year in 2018. The reasons were stated to be firstly financial and, secondly, to ensure that all three children are treated equally.
In that respect, in respect to the issue of equity it was submitted that, in circumstances where the younger children attend a state school and the father lacks the financial resources to pay for them to attend a private school, that it would be inequitable for the parties’ eldest son to continue to attend private school.
The state of F’s mental health is understandably and appropriately a significant concern of the parties. He has been adversely impacted by the parties’ separation and its aftermath. The parties acknowledge that they have both inappropriately involved F in their dispute. There is evidence that F is also suffering anxiety about uncertainty regarding his future education arrangements.
The husband submits that this anxiety will be relieved by the certainty of orders requiring the parties to remove F from his current school and to enrol him in a state school.
This matter cannot be considered in mere financial terms. Section 60CA of the Act requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order, this includes orders relating to which school a child should attend.
In Re G: Children’s Schooling [2000] FamCA 462 at paragraph 66 the Full Court held that “the object and principles in s 60B are to be taken into account in the course of considering the relevant matters in s 68F(2) which provide a check list to meeting the essential enquiry required by s 65E”. Under the current Act, the relevant matters which were previously set out in section 68F(2) are now contained in section 60CC. Section 60CA now replaces section 65E.
In addition, the Full Court noted at paragraph 65 that “the reality of the children residing predominantly with one parent” may be a relevant consideration. A further relevant consideration is which school is closer to the children’s residence.[21]
[21] Re G: Children’s Schooling [2000] FamCA 462 at [92].
The prospect of removing F from his current school with his friends and support networks has the potential to profoundly impact upon him. This is particularly the case in circumstances where F is already emotionally vulnerable and in circumstances where the parents conduct has itself contributed to his distress. In his report dated 18 July 2017 (which is attached as Exhibit JG 11 to the wife’s affidavit sworn on 18 August 2017), F’s treating psychologist, Mr V stated:
With regard to your specific request for me to comment on the matter of a change of school my thoughts are as follows. In the current circumstances of our people any major change, including a change in schools, would add an undesirable level of complexity to an already very difficult situation. Should it be an absolute necessity that [F] has to change schools it would be preferable that this occurs after the financial settlement phase is complete and when both parents have an understanding of their financial circumstances and commitments post separation. This situation is more likely to allow for a change of this magnitude to occur in a manner that allows for greater cooperation between [F’s] parents so that he can receive the support in the transition from both. My concern with [F] moving schools at this time is that his adjustment to this change, that in and of itself is very challenging, is likely to be compromised it is also likely to exacerbate the distress that underlines the depression that he is being treated for.
The difficulty in this case is that I was not addressed on the important considerations set out in section 60CC of the Act.
Further, I note that section 43(1)(c) requires me, in exercising jurisdiction under the Act, to have regard to “the need to protect the rights of children and to promote their welfare”.
In interim proceedings it is not possible to make findings of fact in circumstances where they are disputed between the parties. In this case, however, both parties acknowledge that F has significant mental health challenges.
On the basis of the opinion of Mr V, to which I have referred, I am satisfied that making an order for F to change schools, at this point in time, would be contrary to his welfare. Specifically, it is likely to exacerbate the distress that underlies the depression that he is being treated for.
Moreover, as I have noted, section 43(1)(c) requires me to have regard to “the rights of children”. That term is not defined in the Act however, section 60B(4) provides that:
(4) An additional object of [Part VII] is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (“the Convention”).
Article 12 of the Convention states:
1. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Clause 12 of the Convention is entirely consistent with section 60CC(3)(a) of the Act which requires the Court, in making a parenting order, to have regard to:
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
F is currently in year 8 in high school. Given his age and level of maturity it is important for his views to be taken into consideration before an order is made that has a significant impact upon him. As noted, this would necessarily be the case if an order was made for him to change schools.
Accordingly, if it is intended to pursue an application for F to change schools, it would be appropriate for his interests to be represented by an Independent Children’s Lawyer.
In the meantime, I do not propose to make the order sought by the husband requiring the parties to enrol F in a state school because I am satisfied that, at this point in time, a change in schools would not be in his best interests.
For all these reasons I make the orders as set out at the commencement of my Reasons for Judgment.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 September 2017.
Associate:
Date: 22 September 2017.
0
15
1