GILLIGAN & GILLIGAN

[2017] FamCA 897

FAMILY COURT OF AUSTRALIA

GILLIGAN & GILLIGAN [2017] FamCA 897

FAMILY LAW – PARENTING – Interim – Where the husband seeks orders extending his time with the children and a removal of the current requirement for his time with the children to be supervised by his parents – Where there is evidence that the husband has experienced recent mental health issues which resulted in an ADVO being served against him and it is not appropriate on an interim basis to further extend the children’s time with him – Where the wife agrees that the condition that the husband’s time with the children be supervised by his parents be modified so that the children’s time with the husband occur in the presence of his parents.

FAMILY LAW – PROPERTY – Interim – Where the wife seeks a partial property settlement order, a further sum to complete works on the former matrimonial home – Where there are capital funds available to make the order sought by the wife and it is just and equitable to make that order.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife seeks orders that the husband continue to pay regular instalments on the former matrimonial home where she and the parties’ children reside and a periodic spousal maintenance order – Where it is proper to make those orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gilligan

RESPONDENT: Mr Gilligan

FILE NUMBER: SYC 4545 of 2017

DATE DELIVERED: 9 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: Vizzone Ruggero Twigg Lawyers

Orders

Parenting

1. The order 7 of 5 October 2017 be varied so that the words “to be supervised by the paternal grandmother or paternal grandfather” are deleted and the words “to be in the presence of the paternal grandmother or paternal grandfather” be inserted and order 9 will be amended so that the words “fail to supervise” are deleted and the words “fail to be in the presence of” are inserted.

2. Otherwise the husband’s interim parenting application in his Response filed 7 August 2017 is dismissed.

Property

1. From the funds subject to the injunctive orders made on 11 October 2017 the wife be paid:

   3.1.By way of partial property settlement a sum of $40,000; and

   3.2.An amount of $25,750 plus GST and the wife is to use those funds to enter into a contract for works with B Pty Ltd pursuant to their quote dated 8 October 2017.

2. The husband pay the wife the sum of $187 per week by way of spousal maintenance with the first payment to be made within seven (7) days.

3. The husband make all regular repayments in respect of the mortgage and accounts, rates, water rates and insurances in respect of the property at C Street, Suburb D.

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 Gilligan & Gilligan 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 4545  of 2017

Ms Gilligan

Applicant

And

Mr Gilligan

Respondent

REASONS FOR JUDGMENT

1. The husband seeks an increase in the time the parties’ children, E born in 2010 aged seven and F born in 2011 aged six (“the children”), spend with him and a removal of the current requirement for supervision by his parents. The wife agreed that that condition could be modified so that she would only press for the children’s time with their father to be in the presence of rather than under the supervision of his parents.

2. The wife sought the following interim relief:

   2.1.An order that the husband continue to pay regular instalments on the mortgage on the matrimonial home in which she and the children reside;

   2.2.$40,000 by way of partial property settlement;

   2.3.A further sum of $25,750 plus GST for the purposes of engaging B Pty Ltd to complete work under a quotation that is contained in Exhibit 1;

   2.4.$250 per week by way of spousal maintenance.

3. The wife originally sought an order for exclusive occupation. That application was otiose given order 1 of the consent orders made on 5 October 2017 had already granted the wife sole occupation of the Suburb D property. In any event, because of the ADVO the husband couldn’t go to the house. The wife also did not refer to the application for the injunction she sought that the husband be restrained from paying further money to his parents.

PARENTING

1. The husband is 42 years of age. The wife is 35 years of age. The parties commenced living together in 2006 and married in 2008. The parties separated on a final basis in May 2017. As indicated, there are two children of the marriage.

2. The parties purchased the matrimonial home at Suburb D in late 2007.

3. In 2010 the husband purchased a warehouse unit at Suburb G.

4. The husband refinanced a mortgage secured on the Suburb D property in 2014, the wife says without her knowledge.   

5. On 5 October 2017 the following orders were made by consent pending further order:

   …

   5) That [E] born … 2010 and [F] born … 2011 (hereinafter referred to as the “the children”) live with the Wife.

   6) That the children spend time with the Husband as agreed in writing between the parties failing which as follows:

   a) Monday from 3:00pm to 6:30pm

   b) Tuesday from 3:00pm to 6:30pm

   c) Sunday from 10:00am to 4:00pm

   7) That the Husband’s time with the children is to be supervised by the paternal grandmother or paternal grandfather, with the time not to commence until such time as the paternal grandparents provide a signed undertaking to the Wife’s solicitor confirming they will supervise the Husband’s time with the children pursuant to these Orders.

   8) For the purpose of the Husband’s time with the children:

   a) One of the paternal grandparents shall collect the children after school on Mondays and Tuesdays;

   b) For all other changeovers the Wife shall deliver the children to and collect the children from the paternal grandparent’s home at [H Street, Suburb G].

   9) That should the paternal grandparents fail to supervise the Husband’s time with the children at any time the Husband shall immediately contact the Wife by SMS message and make the children available for collection.

   10) That the husband be restrained from drinking alcohol or using illicit drug either during or in the period 12 hours prior to spending time with the children.

   11) That within 28 days the husband provide to the Wife’s solicitor a report from his treating psychologist detailing:

   a) A summary of the practitioner’s treatment of the Husband;

   b) Whether the Husband suffers from a mental condition or mental illness;

   c) Any medication prescribed to the Husband;

   d) The proposed Treatment Plan for the Husband; and

   e) Whether the Husband’s condition, if any, impedes or is likely to negatively effect (sic) his capacity to spend time and/or care for the children.

   12) That the parties communicate by SMS message only in relation to parenting matters only. For the purpose of this Order the Husband shall contact the Wife on ...

   13) That the Wife shall make available the children to receive telephone calls from the Husband between 7pm and 7:30pm on each Wednesday and Thursday and pursuant to this order the Husband shall SMS the Wife that he shall be calling to speak with the children at least 15 minutes prior to his intended calls.

   14) That the balance of the Wife’s interim Application filed 17 July 2017 and the Husband’s Response to Interim Application filed in Court on 7 August 2017 be stood over for a date to be fixed for a duration of 4 hours.

   15) That the Wife make available for collection by the Husband in the presence of a Police Officer or the Husband’s employee, contractor or relative, on 48 hours notice and at an agreed time during school hours the following:

   a) Husband’s passport / birth certificate

   b) Husband’s clothes / shoes

   c) Husband’s tools and business-related materials excluding materials for renovation to master bedroom (including gyprock, timber, insulation etc)

   d) Work documents

   e) Medicine.

   16) The Wife may provide five (5) days notice to the husband except in cases of emergency that she will spend the entire following weekend with the children on the basis that the husband shall spend time in lieu with the children from 10am to 4pm the following Saturday as well as the usual Sunday time.

6. It was agreed by both parties that these orders were not intended to dispose of the husband’s application for interim parenting orders. In the husband’s Response filed 7 August 2017 the husband sought interim parenting orders on a “two week cycle from Thursday after school of week one until Monday before school of week two whereafter [sic] the Children shall live with the Mother until Thursday after School in week one when they will be returned to their Father”. That is, the father was seeking four nights a fortnight on an overnight basis. He sought an additional order that when the children spent time with him overnight that that would take place in the home of the paternal grandparents at Suburb G. There was also a provision for electronic communication everyday between 6pm and 7pm.

7. Although it was not absolutely clear I took the lawyer for the husband to be pressing that application before me.

8. Between 3 July 2017 and 6 July 2017 the husband voluntarily admitted himself into the J Clinic as an inpatient for treatment in relation to mental health issues.

9. The wife alleges that on 8 July 2017 the husband attended the former matrimonial home, forced entry, held a knife to his throat and threatened self-harm before leaving. The wife says she contacted police. Documents produced under subpoena by the NSW Police indicate that on this date the husband asked the wife whether their relationship was over. When the wife confirmed that it was, the husband “began to make threats of self harm” which escalated to the husband “taking a knife from the kitchen and held it to his own throat”. The notes state that the husband “put down the knife so that he could complete his Will before again picking up the knife and telling [the wife] to leave the room so that he could end his life.” The police had difficulty locating the father and considered him to be a “high risk missing person” due to their belief that he “may attempt to commit self harm or suiciding”.

10. On 9 July 2017 police located the husband at a nearby hotel and took him to K Hospital for a mental health assessment. The clinical notes produced by K Hospital indicate that on 9 July 2017 the husband underwent a mental health assessment in which he denied any suicidal intent or thoughts of self harm. Those notes indicate that the husband recalled telling the wife that “he would end his life” but said “this was an expression of exasperation as he felt that she was not listening to him or understanding his perspective”. However, those notes indicate the husband said that he did decide to “sign a written document detailing that his wife can have all their assets”. However the husband denied that this “was a way of completing final acts ... citing reasons for carrying on and his children as risk protectors”.

11. On 10 July 2017 the wife was contacted by the husband’s psychologist, Ms L, due to her concerns for the husband’s wellbeing.

12. On the same day, 10 July 2017, the police made an application for both a final ADVO and the issue of a provisional ADVO for the wife’s protection.

13. On 11 July 2017 the wife was notified by “Google Tiles” program that somebody had accessed her phone’s GPS location online.

14. On 27 July 2017 final ADVO orders were made with the husband’s consent against the husband for the wife’s protection in the Suburb M Local Court for a period of 18 months.

15. Although the husband’s lawyer sought to minimise the seriousness of the events in July, I accept the wife has a foundation for at least in the short term, reasonable apprehension in respect of the husband’s mental health.

16. As set out above, the terms of order 11 made on 5 October 2017 required the husband within 28 days to provide to the wife’s solicitor a report from his treating psychologist setting out particular matters in relation to the husband’s mental health. The husband has annexed to his affidavit filed 11 October 2017 a document which is not on letterhead from Dr N. The husband asserts in his affidavit that Dr N is a “treating psychologist” although the document produced by Dr N is in the nature of a medico-legal assessment on a one-off basis. Dr N reports that the husband would like to have “unsupervised” contact with the children. Dr N opines from his review that he cannot see any reason as to why that should not happen. His review however is based upon the husband’s self-reporting. It contains a statement that “no significant past medical history was detailed”. In relation to suicidal thoughts Dr N records “not now, at all” without any recording by Dr N as to whether he asked the husband if “not now” meant that he had suicidal thoughts in the past. There is no indication that Dr N knew what was in the K Hospital notes of 7 July 2017 nor that he had spoken to Ms L.

17. I place little weight on Dr N’s report. The wife has annexed to her affidavit a referral letter by Dr O dated 29 June 2017 to the J Clinic. Dr O saw the husband and spoke to the wife on the telephone. Dr O records that she along with the wife had become more worried about the husband’s behaviour over the last few months.

18. In all the circumstances, it is not appropriate at this time on an interim basis to further extend the children’s time with their father or significantly remove the condition that the children see their father only if his parents are present.

19. In the event that the wife in the future becomes less concerned about the children’s welfare when they are with their father she can agree in writing with the father for a relaxation of the existing interim orders.

FINANCIAL

1. The parties have two significant assets. Firstly, the matrimonial home in which the wife and the children reside. The husband says that property is worth $1.3 million. The wife says the property is worth $1.8 million. There is another property which the husband owns which was originally referred to as a factory but seems rather to be a warehouse in which the husband stores materials and machinery associated with his business.

2. Both parties agree that the overall level of debt is $1.1 million.

3. Accordingly, taking into account other assets and liabilities, on the husband’s estimate of the value the overall net assets are $1,050,000 and on the wife’s estimate the overall net assets are of a value of $1,550,000.

4. There is also a sum of $57,260 in the P Finance facility in respect of which I made an injunctive order. Those monies are as the result of the husband in April 2017 (one month before separation) obtaining a loan facility in the sum of $390,000. He has drawn down on that loan facility to an extent of $330,000. He has transferred $60,000 of that $330,000 to his parents in an alleged repayment of loans to them.

5. The husband asserts that his current income is at a level of about $26,000 per annum. The husband asserts that he has certain physical difficulties including carpal tunnel syndrome and on the day of the hearing his lawyer asserted that he had a recent difficulty with his neck. The only evidence of that was that he wore a neck brace to court. The husband also has had significant difficulties with his mental health in recent times which I have referred to in more detail above when discussing the parenting application.

6. The level of the husband’s income is almost impossible to determine at an interim hearing. His evidence is that he only has one current contract. The husband has received a progress payment for work that he has done as at 24 August 2017. That progress payment in the sum of $213,000 was paid into his St George bank account on that date. There is currently in that account an amount of $140,000. On 11 October 2017 I made an order the husband only be able to access $130,000 of that amount (freezing $10,000) pending the outcome of these proceedings.

7. The husband pays the regular repayments on the mortgages which are $2,500 per month in respect of the matrimonial home and $2,500 per month in respect of the factory. I infer that the payments in respect of the factory are at least in significant part claimed as a business deduction.

8. The husband contests that it is necessary or appropriate to carry out the work that the wife seeks done on the matrimonial home. The husband commenced renovating part of the property prior to the separation. The photographs provided by the wife of the current state of the home are sufficient to indicate to me that part of the renovations have caused part of the matrimonial home to be open to the outside. An outside wall of the property seems to have been boarded up. There is some force in the submission by the wife’s lawyer that the wife has apprehension arising from the surrounding circumstances which led the police to obtain an ADVO against the husband and an order restraining him from coming to the home if she is unable to feel adequately secure in the property. It is reasonable in the circumstances to allow the wife to arrange for a contractor to complete the work that the husband started so that the house is made more secure.

9. The lawyer for the husband attempted to assert that the wife had not fully exercised her earning capacity. The wife in her evidence says that her total gross salary is $375 per week. The husband’s lawyer sought to challenge that assertion but the payslips tendered (Exhibit 4) confirm what the wife says. The husband’s lawyer also asserted that the wife has not demonstrated that she could not increase the number of hours that she is working.

10. Using a broad brush approach on an interim basis and bearing in mind the wife has the primary care of children aged seven and six, I am unable to find the wife is not properly exercising her earning capacity.

11. I find that there are capital funds available to make the orders sought by the wife in relation to partial property settlement and in relation to obtaining renovations to the matrimonial home and it is appropriate that I make the orders sought by the wife.

12. In respect of the spousal maintenance, the sum sought by the wife is $250 per week. Her evidence is that she has overall expenses of $912 per week. However, $350 per week of those expenses relate to the children. Consequently, taking into account her gross income of $375, her weekly need as demonstrated on her Financial Statement is $187 per week and I will make a spousal maintenance order in that amount because I find that the husband has the capacity to pay that weekly amount.

13. The husband will also be ordered to pay the regular payments in respect of the mortgage on the matrimonial home and other outgoings in respect of the matrimonial home.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 9 November 2017.

Associate: 

Date:  9.11.17