Golding & Marks

Case [2024] FedCFamC1F 644

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Golding & Marks [2024] FedCFamC1F 644

File number: SYC 6135 of 2024
Judgment of: SCHONELL J
Date of judgment: 25 September 2024
Catchwords:

FAMILY LAW – PARENTING – Interim orders –Where the wife sought orders for the children to live with the wife, sole parental responsibility to the wife, and the husband to only spend supervised time with the children – Where the husband conceded that the children should live with the wife, opposed sole parental responsibility to the wife, and sought that the children spend time with him in a fortnightly arrangement – Where the husband and wife both allege current illicit drug use of the other – Where there are allegations of family violence – Consideration of s 60CC – Where the Court must act cautiously as competing allegations are unable to be resolved – Where orders made for the children to live with the wife and to spend supervised time with the husband once a week.

FAMILY LAW – PROPERTY – Interim orders – Where the wife sought interim property orders in two lump sums and then a periodic payment met from the proceeds of sale of the former matrimonial home – Where the husband sought interim property orders in equal lump sum payments to the husband the wife respectively – Where the Court is not satisfied that there are sufficient assets to make order sought by the husband – Where the Court is not satisfied that the order sought by the husband would be capable of being reversed or considered at a final hearing – Order made for interim property orders to the wife in the sum of $100,000.  
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2)(a), 60CC(2A), 60CG, 69ZL(1), 79, 80(1)(h)
Cases cited:

Adamson & Adamson [2018] FamCA 523

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

Fitzwaterv Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Marvel & Marvel(No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 72
Date of hearing: 19 September 2024
Place: Sydney
Counsel for the Applicant: Mr Chhabra
Solicitor for the Applicant: Doolan Wagner Family Lawyers
Counsel for the Respondent: Mr Todd
Solicitor for the Respondent: Holmes Donnelly & Co Solicitors

ORDERS

SYC 6135 of 2024

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

MS GOLDING

Applicant
AND:

MR MARKS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.The children X, born 2014, and Y, born 2019, live with the wife.

2.The children spend supervised time with the husband each Saturday for up to five hours at times as agreed and…

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Details
AGLC
Golding & Marks [2024] FedCFamC1F 644
Case
[2024] FedCFamC1F 644
Decision Date

CaseChat Overview and Summary

The case of Golding & Marks involves a dispute between MS Golding and MR Marks over parenting and property arrangements following their separation. The wife sought orders for the children to live with her, for sole parental responsibility to be granted to her, and for the husband to have supervised contact with the children. The husband conceded that the children should live with the wife but opposed sole parental responsibility and sought fortnightly unsupervised contact. Both parties made allegations of drug use and family violence against each other. The court was required to balance these competing claims in accordance with section 60CC of the Family Law Act 1975, which mandates that the best interests of the children be the paramount consideration. Given the unresolvable allegations, the court opted for an interim arrangement that allowed the children to live with the wife while the husband had supervised contact once a week.

Regarding property, the wife sought interim property orders in two lump sums and a periodic payment from the sale of the former matrimonial home. The husband sought equal lump sum payments. The court found that there were insufficient assets to meet the husband's request and that his proposal was not easily reversible or adjustable at a final hearing. Therefore, the court ordered that the wife receive a lump sum of $100,000 as an interim property settlement. The balance of the proceeds was to be invested in a controlled account, disbursable only with mutual consent or by court order.

The court concluded that the orders proposed were in the best interests of the children and were just and equitable. The final orders required the children to live with the wife, with supervised contact with the husband every Saturday for up to five hours. The parties were also directed to attend a professional supervision agency to arrange for the supervision sessions. The costs of the supervision and any reports were to be shared equally by the parties. The net proceeds from the sale of the matrimonial home were to be disbursed with $100,000 paid to the wife and the remainder held in a controlled account pending further orders.

Orders

Orders of the court

SYC 6135 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GOLDING

Applicant

AND:

MR MARKS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The children X, born 2014, and Y, born 2019, live with the wife.

2. The children spend supervised time with the husband each Saturday for up to five hours at times as agreed and failing agreement commencing at 10 am each Saturday and concluding five hours later.

3. The parties are to within seven days of these orders attend upon a professional supervision agency agreed upon by the parties and failing agreement either B Family Services or C Family Services for the purposes of doing an intake session with the first supervision session to occur as soon as possible thereafter.

4. The wife is to cause the children to be delivered to the supervisor at a location agreed upon between the wife and the supervisor.

5. The parties are to share equally the cost of the intake session with the husband to meet the cost of supervision. If any party requests the preparation of a report, they are to meet the cost of the report.

6. The parties are to do all acts and things and sign all documents necessary, upon the settlement of the sale of the property at D Street, Suburb E, to instruct the solicitors acting on the sale to cause the net proceeds after payment of costs of sale, agents commission, adjustments and discharge of the mortgage to be disbursed as follows:

(a) Payment to the wife of $100,000 by way of partial property order; and

(b) The balance to be invested in a controlled monies account and not to be disbursed other than with the written consent of both parties or by way of Court order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Each party sought to tender a number of additional documents for their respective case. BACKGROUND The parties commenced cohabitation in 2012, married in 2015 and separated in November 2023. They have two children: X, born 2014, currently aged 10 and Y, born 2019, currently aged 5. The wife gives evidence of the husband having significant problems with multiple issues including illicit drugs as well as conducting himself in an inappropriate sexual manner. The wife contends that the husband entered a rehabilitation clinic in 2015 to deal with a drug addiction. The wife says that the husband recommenced drinking following his discharge from rehabilitation as well as taking drugs. The wife contends that the parties had an argument in Easter 2023 which resulted in the husband attending upon a psychiatrist and being diagnosed with ADHD. She says that in November 2023 she found the husband in the bedroom of the eldest child, masturbating to pornography while the child was asleep. The wife contends that the parties separated thereafter. She says that in early 2024 the husband became increasingly aggressive towards her, similar to when he took drugs during the relationship. She says that there was an incident in early 2024 when the husband removed the youngest child from her care and drove off with her. She also refers to a further incident in early 2024 where she says that she was assaulted by the husband. The husband has been charged with an assault and the matter is listed for hearing before the Local Court in late 2024. The wife also refers to a number of recent incidents including a contention that the husband has been charged by the Police with fraud and an ADVO against his partner. The husband in his affidavit contends that the wife’s mental health has deteriorated since separation and that the wife has used an illicit substance on a number of occasions. He says that during the course of the relationship, he was an engaged parent and denies many of the wife’s assertions but does not deny that he did at one stage have an issue with his mental health. He denies ever consuming illicit substances or alcohol to a point where he put a child at risk. He admitted that he last used drugs in early 2024. He concedes that he entered into a rehabilitation program in mid-2015 and says that that program changed his life and ever since undertaking it, “I have never again had an issue with alcohol or illicit substance use” (affidavit of husband filed 9 September 2024, paragraph 27). He says that from time to time during the parties’ relationship they both used illicit substances and consumed alcohol but says that he was not addicted or fell victim to alcohol or drug use. He denies he masturbated in his son’s bedroom. The husband elects not to respond to the wife’s allegations involving an alleged assault in the home in early 2024, merely contending in his affidavit that he is “currently defending the charges” (affidavit of husband filed 9 September 2024, paragraph 48).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances, I am not satisfied that it is in the interests of justice that there be an order in favour of the husband. The husband conceded there should be an order in favour of the wife of $150,000. It is unclear as to why there should be a periodic order or why the Court should at this stage make the lump sum payments as sought by the wife. Given the amount the wife sought and the concession by the husband that she should receive monies, I am satisfied that on balance the interests of justice dictate that there be a payment to the wife of $100,000.CONCLUSION I am satisfied that the orders proposed above are in the best interests of the children and otherwise just and equitable and will make orders to give effect to my findings.

Ratio Decidendi

Legal Principle Established

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