Gates & Gates

Case [2022] FedCFamC1F 667

Federal Circuit and Family Court of Australia

(DIVISION 1)

Gates & Gates [2022] FedCFamC1F 667

File number(s): SYC 5599 of 2021
Judgment of: BRASCH J
Date of judgment: 7 September 2022
Catchwords:

FAMILY LAW – PARENTING – Interim orders – Where the parents could not agree on the time the younger child would spend with the father during school term time and Christmas Day – Where consent orders were made and only discrete issues remained.

FAMILY LAW – PROPERTY – Interim orders – Where the mother sought payment from the father as funds for litigation expenses – Where the father was in a position of financial strength – Where both parties agree the mother’s entitlement will exceed the sum sought – Orders made for interim property settlement.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 69ZL, 72, 74, 75(2), 79, 79(4), 79(6), 80(1)(h), 114, 117
Cases cited:

Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Goode & Goode (2006) 36 FLC 93-286; [2006] FamCA 1346

Leandra & Randles [2021] FedCFamC1A 51

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203; [2009] FamCAFC 166

Division: Division 1 First Instance
Number of paragraphs: 84
Date of hearing: 23 August 2022
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Ms Beck
Solicitor for the Respondent: Sexton Family Law

ORDERS

SYC 5599 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GATES

Applicant
AND:

MR GATES

Respondent

order made by:

BRASCH J

DATE OF ORDER:

7 SEPTEMBER 2022

THE COURT ORDERS THAT:

Property

1.Order 2 of the father’s Response to an Application in a Proceeding filed 1 July 2022, be adjourned to the final hearing.

2.Within seven (7) days of the making of these Orders, the father is to do all acts and things to the pay the mother the sum of $50,000, with such sum to be characterised as an interim property settlement and paid into the mother’s solicitors’ Trust Account.

Parenting

3.Upon the father securing accommodation of not less than two bedrooms, the child Y born in 2008 (“Y”) will spend time with the father:

(a)During school terms from the conclusion of school (or 3.00pm if a non-school day) Thursday until the return to school (or 8.30am if a non-school day) on Monday, with such time to commence on the first Thursday of each school term and to continue each alternate weekend thereafter;

(b)During the Christmas period:

(i)In each odd numbered year, with the mother from 10:00 am on Christmas Eve until 10:00 am on Christmas Day and with the father from 10:00 am on Christmas Day until 10:00 am on Boxing Day; and

(ii)In each…

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AGLC
Gates & Gates [2022] FedCFamC1F 667
Case
[2022] FedCFamC1F 667
Decision Date

CaseChat Overview and Summary

In the matter of Gates & Gates, the parties were before the court to determine the parenting arrangements for their minor child Y, born in 2008, and the special arrangements for Christmas Day. The mother, Ms Gates, proposed that the child spend three nights a fortnight with his father, whereas the father proposed that Y spend five nights a fortnight with him. Additionally, the mother suggested that the children spend 10.00 am on Christmas Day to 10.00 am on Boxing Day with her every year, while the father sought an alternating arrangement for this special day. The court also had to decide whether $50,000 should be provided to the mother by way of interim property distribution for mediation purposes, which the father opposed.

The legal issues that the court had to address included the determination of the appropriate term-time parenting arrangements for Y, the arrangement for Christmas Day, and the provision of interim property distribution for mediation purposes. The court had to weigh the primary considerations under section 60CC(2) of the Act, including the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. The court also had to consider the relevant section 60CC factors in making its decision.

After considering the evidence presented by both parties and the relevant legal principles, the court found that it was in the best interest of Y to spend five nights a fortnight with his father. The court also determined that the parties should alternate spending Christmas Day with Y. Regarding the interim property distribution, the court decided not to provide any funds to the mother for mediation purposes. The court's decision was based on the evidence presented, the relevant legal principles, and the best interest of the child.

The court made orders in accordance with its decision, which included the parenting arrangements for Y and the arrangement for Christmas Day. The court did not provide any funds to the mother for mediation purposes, as per the father's opposition. The court's decision aimed to ensure the best interest of the child in the parenting arrangements and to provide a fair and balanced outcome for both parties.

Orders

Orders of the court

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Background

Background to the litigation

The following issues remained in dispute: (1)What ought be the term time parenting arrangements for the child Y, born in 2008. The mother proposed the child spend three nights a fortnight with his father. The father proposed Y spend five nights a fortnight with him;(2)What ought be the arrangements on Christmas Day. The mother proposed the children spend 10.00 am Christmas Day to 10.00 am Boxing Day with her every year. The father sought an alternating of this special day; and (3)Whether $50,000 ought be provided to the mother by way of interim property distribution to “get her to mediation” with the funds to be used for legal fees and thus added back. The father opposed the provision of any funds to the mother.Brief Background Given the discrete nature of the disputes, I will only give a brief background. The applicant mother is Ms Gates. She was born in 1969, and is thus 53 years of age. The respondent father is Mr Gates. He was born in 1968 and is thus 54 years of age. The parties commenced cohabitation in 1994 and married in 1996. They have two children: X (born in 2005) aged 17 years, and Y (born in 2008), aged 14 years. The parties separated on a final basis on or about November 2020 for the mother and 15 March 2021 for the father. I do not need to resolve that dispute. It seems common ground that physical separation occurred when the mother left the home on 16 June 2021. The mother commenced these proceedings by filing an Initiating Application on 4 August 2021. The father filed a Response on 3 September 2021. These interim proceedings arose out of the mother’s Application in a Proceeding filed 2 June 2022. The respondent joined issue with that application, and filed a Response to an Application in a Proceeding on 1 July 2022. On 11 March 2022, orders were made for disclosure, for obtaining valuations and to attend mediation. When the matter came before me, no parenting orders were in place. However, the parties were able to agree on many parenting orders. Sensibly, the parties also agreed that X - 18 next year - was at an age that he would continue to navigate his relationship with his parents around his many activities and commitments, including the pressures of high school and sport at an internationally competitive level, aiming for the Olympics in 2024. The consent orders that I made accommodated this. Material The mother relied upon the following documents:·Amended Initiating Application filed 4 November 2021;·Affidavit of Ms Gates filed 2 June 2022;·Affidavit of Ms Gates filed 10 June 2022;·Financial Statement filed 2 June 2022; ·Child Impact Report of Ms C dated 6 June 2022; and·Outline of Case Document filed 23 August 2022. The father relied upon the following documents:·Amended Response to Initiating Application filed 3 February 2022;·Response to Application in a Proceeding filed 1 July 2022;·Affidavit of Mr Gates filed 1 July 2022;·Financial Statement filed 2 September 2021;·Child Impact Report of Ms C dated 6 June 2022; ·Outline of Case Document filed 19 August 2022; and ·Documents tendered during the hearing that became Father’s Exhibit 1 and 2.PARENTING PRINCIPLES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

And at [122] and [123]:In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.Later, at paragraph 100 their Honours amplified their comments and said: The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.Section 60CC considerations In determining the best interests of children, there are two primary considerations and many additional considerations to take into account. The two primary considerations, set out in section 60CC(2) of the Act and referred to as the “twin pillars” in the decision of Mazorski & Albright (2007) 37 Fam LR 518 are:(a) The benefit to the children of having a meaningful relationship with both parents; and (b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence I am required pursuant to section 60CC(2A) of the Act to give greater weight to the second of those two primary considerations, being the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I will consider the relevant s 60CC factors in the discussion below. Submissions and discussion In the mother’s affidavit filed 2 June 2022, she deposed at paragraph 60 that since she vacated the former matrimonial home, the children have been living with her and spending time with their father four to five nights a fortnight. The mother said this arrangement remained until January 2022 when X ceased overnight time with the father. The father deposed in his affidavit at paragraph 25 that the children currently live with the mother and Y spends approximately five nights a fortnight in his care. The father said X spends time with him in accordance with his wishes but notes that they recently travelled to Country D together to facilitate X competing in a sporting event. The report writer said this at paragraphs 6 and 7:… However, on either parent’s account it appears that since the beginning of the 2022 school year [Y] has generally spent frequent and regular time with his father each fortnight of either four, five or six nights. [X] has not stayed overnight time in his father’s home since February/March 2022. The parents attribute this to different reasons. However, on all accounts [X] continues to communicate with his father, sees his father at various extra-curricular activities and other events and has also travelled with his father interstate and internationally to participate in [sporting events]. He and his father have plans to travel to [Country D] for two weeks in July/August 2022 so that [X] can participate in [a sporting event].