Goldman and Goldman (No 4)

[2017] FamCA 678

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN (NO. 4) [2017] FamCA 678

FAMILY LAW – CHILDREN – Stay application – Where the appellant father seeks a stay of parenting and property orders pending an appeal – Where an order was made for no contact between the respondent mother and the children for a minimum period of four weeks – Where time between the children and the mother was then to commence, first in a contact centre then by a known person. Thereafter unsupervised time during the day to commence - Concluded suspending operation of the order for unsupervised time pending appeal achieves balance between the emotional safety of the child and the maintenance of the relationship between the child and respondent

FAMILY LAW – PROPERTY – Stay application – Where the appellant father seeks a stay of property orders pending an appeal – Where the respondent mother had the option of acquiring the interest of the father in matrimonial property, otherwise sale – Where the father is concerned the bank will foreclose on the property – Where the sale or transfer to a third party of the property would render the appeal nugatory – Stay of property orders granted

Family Law Rules 2004 (Cth), r 22.11

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT: Mr Goldman

RESPONDENT: Ms Goldman

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

FILE NUMBER: (P)SYC 3001 of 2015

DATE DELIVERED: 24 August 2017

PLACE DELIVERED: Newcastle/Sydney

PLACE HEARD: Newcastle/Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 24 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Anderson
SOLICITOR FOR THE APPLICANT:	Humphreys Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Brezniak

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers, Mr Tiyce

Orders

1. That pending the hearing and determination of the Appeal of the father in respect of Orders made 23 June 2017:

1.1Order 12 (b) be varied by suspension of the words “for a period of six months and thereafter”;

1.2Order 12 (c) be suspended;

1.3That Orders 23 to 26 inclusive and Order 28 (d) are suspended.

1. The Application in a Case filed by the husband/father on 10 August 2017 is withdrawn and dismissed.

1. The Application in a Case filed by the husband/father on 21 July 2017 be adjourned to a date to be advised.

2. Service of all material filed by the wife/mother in relation to her Cross-Appeal shall be effected as soon as possible on the Independent Children’s Lawyer.

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 Goldman & Goldman (No. 4) 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 NEWCASTLE

FILE NUMBER: (P)SYC 3001 of 2015

Mr Goldman

Applicant

And

Ms Goldman

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION  

1. This is an application for a stay of certain final orders made by me on 23 June 2017.  The orders relate both to parenting and adjustment of interests in matrimonial property.

2. The applicant is the father/husband, Mr Goldman, who I will refer to as the father.  He filed an appeal on 21 July 2017.  The appeal was within time.

3. The respondent is the mother/wife, Ms Goldman, who I will refer to as the mother. 

4. The Independent Children’s Lawyer (“ICL”) is also a respondent to the appeal.

5. The documents filed are as follows: 

   a)Application in a Case of the father filed 4/08/2017;

   b)Affidavit of the father filed 4/08/2017;

   c)Response to an Application in a Case by the mother filed 22/08/2017;

   d)Affidavit by the mother filed 22/08/2017.

6. There were submissions by all three parties; for the ICL in respect of parenting orders only. 

7. The Index is being settled for the father’s appeal on 6 September 2017.  There is no indication as yet as to when this matter is likely to be heard.

8. The onus is with the father to persuade the Court to a stay.  There are no particular criteria in the Family Law Rules 2004 (Cth)(“the Rules”), in particular rule 22.11. However, there are relevant matters arising from authorities with particular consideration for stays where children are involved and, to use the words of Kirby J at that time, “whose welfare must be in the mind of a court in making an order affecting their interests”.[1]

   [1]JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

9. The considerations are these:  the entitlement of a party to the fruits of the judgment - in this case in the parenting context to time for the mother with the children and for the children with the mother.

10. There is also the property aspect:  whether or not an appeal will be rendered nugatory if a stay was not granted; whether there would be hardship if a stay was refused or granted; whether there are merits to the appeal; whether it was expeditiously filed; and whether there are bona fides in the appellant.

11. It appears to me that there was no challenge to the bona fides of the appellant.  There was some discussion of the merits of the appeal but it was not seriously put that the appeal could not be argued.  There is an arguable case in respect of both aspects. 

12. The orders in respect of which a stay is sought are in respect of the children, order 12, time with the mother, and in respect of property orders 23 to 26 inclusive, and order 28(d).  I will turn to parenting first.

Parenting Orders

1. Order 12 provides for a period of not less than four weeks to elapse before time with the mother commences.  Clearly, that period has already elapsed.  The pattern of time is for three months at a supervised contact centre, followed by six months with a supervisor, followed thereafter by unsupervised time 9.00 am to 5.00 pm, (two days per month), and at other and/or additional times as agreed.

2. Since judgment on 23 June 2017 the following matters have been raised as relevant to this stay application.  The children in question were living initially in the home of the paternal aunt.  The father found a note headed “Plan” about B collecting her sister, running straightaway to the kindy playground and then walking to the shops.[2]  The father says he spoke to the children about the risks of running away and there is no suggestion that they have otherwise attempted to do so.

   [2] father’s affidavit filed 4/08/2017, annexure C and para4

3. He also found a handwritten sketch of how to get to the mother’s home.[3]

   [3] father’s affidavit filed 4/08/2017, annexure D, para 5

4. The children had a handwritten list of telephone numbers for the mother, members of the maternal family and friends.  The evidence is that B was making calls, at least three to her mother and to others.  Included on the list was information about how to use 1800 Reverse.[4]

   [4] father’s affidavit files 4/08/2017, para 6

5. The evidence of the mother is that members of her family wrote down their telephone numbers and gave the list to the children before the change of residence.  She also attests to the children writing farewell notes to the maternal grandparents prior to judgment being delivered.  B rang her mother on 3, 5 and 7 July 2017, partly to express the fact that she was missing her and also perhaps testing to see what was permitted.  I conclude that the mother has not initiated contact with the children but facilitated contact being made.

6. The mother concedes that this list was compiled by her family and friends for the children and given to them.  At best it was not in the children’s interests to do so.  At worst it was subversive of the order that the mother have no contact other than in accordance with these orders.  The list should have been given to the father and left to his discretion. There is a reason for the father to be concerned. 

7. On the other hand I accept the submission of the Independent Children’s Lawyer that such behaviour was hardly unpredictable and is consistent with some of the matters that were brought to the Court’s attention in the hearing.

8. Order 12 provided for a “not before four weeks” commencement date for supervised time.  It did not give an exact starting date, to some extent because of the uncertainty of how events would play out after the change of residence.  However, the clear intention of the judgment is that the relationship between the children and the mother be preserved, that the children need reassurance about their mother’s wellbeing and her positive feelings and interest in them.

9. The orders provide for a total supervised period of nine months.  In the circumstances, with the best interests of the children in mind, the children needing to be safe and secure in the care of their father but also seeing their mother for their own benefit, the orders should be implemented with some restriction. 

10. That the children are talking about past events in their mother’s home to the father, although they are expressed as negative, is a positive thing for the children and inevitable. Therapeutic counselling was ordered with that factor in mind.  The evidence is that a psychologist has been in engaged by the father accordingly. 

11. Twelve months of no time between the children and their mother was considered and not ordered.  The reasons reflect a balance between safety, including emotional safety, and relationships.  That balance continues.  There is, in my view, no proper basis for delaying commencement of supervised time.  That the younger child has begun to say she does not want to see her mother is not a proper basis for delaying time, quite the reverse.

12. I conclude that suspending the operation of the order for unsupervised time achieves the balance in these circumstances.  It may be that the appeal has not been heard and determined within the nine months period envisaged for supervised time.  Accordingly, the second tier order for supervised time will continue pending that finalisation.

Property Orders

1. In respect of property, orders 23 to 26 provide for a transfer of the father’s interest in the former matrimonial home to the mother after a payment to him of a stated amount by the mother.  This compelled the mother to refinance existing mortgage debt as well as borrowing the additional funds, at the time of judgment approximately $600,000.  The fall- back position after 42 days was sale of the property with division of net proceeds in a percentage which would achieve the overall division. 

2. It does appear that there is a mistake in respect of the overall division and, rather than 57.5/42.5, that it should have been 60/40.  If the parties wish, no doubt they could correct that by negotiation. 

3. In any event, 4 August 2017 was the cut-off date for the payment and transfer.  The father raises concerns that the mortgage is not presently being paid(6) and that the bank may foreclose.  The mother attests to having a total current income of $245 a week and indebtedness to her parents of about $200,000. 

4. The mother was given the opportunity in the orders to acquire the father’s interest for a certain sum.  The cut-off date has passed and the transfer has not taken place. 

5. The mother opposes a stay of the relevant orders, however I take the following matters into account.  There is no evidence from the mother of sending a Transfer, confirming refinance or offering a date for exchange of the transfer and payment.  The mother says in her affidavit, paragraph 42, that she went to St George Bank, the current mortgagee, to ask about refinancing. 

6. She also says that her sister and her sister’s partner obtained approval to “assist me to pay the outstanding mortgage, including arrears and the $275,230”.[5] It was quite unclear as to what form that assistance would take in terms of who would come onto the title and what the arrangements would be.  Annexed to the mother’s affidavit, annexure G, there is a reference to solicitors for the mother saying as follows:

   Our client is attempting to arrange refinancing.

   There was no reference to assistance by family members in that letter.  However the letter went on to say the mother was uncertain because of the appeal by the father. 

   [5] Wife’s affidavit filed 22/08/2017, para 43 

   6 From the Bar Table, counsel for the mother advised that the mortgage was now up to date

7. On 4 August 2017, the last day of the 42 day period, there was a further letter from the mother’s solicitor to the father’s solicitors saying:

   My client’s sister has offered to assist my client financially and has approval from the bank to refinance the mortgage over the former matrimonial home, including sufficient funds to pay your client $275,230, pursuant to orders.

   Again, it is unclear what the assistance constituted and whether or not there would be a change of title.  In any event, nothing followed after that letter.

8. Uncertainty about the help from the mother’s sister and there being no documentation about how the matter would be dealt with is a legitimate cause of concern, particularly in circumstances where the payment of the ongoing mortgage is problematic.  In her material the wife says at paragraph 48 that she cannot afford to pay or contribute to psychologist fees for the children.  Annexure J to the mother’s affidavit quotes from a letter of 29 March 2017:

   My client does not have the capacity to meet ongoing mortgage repayments.

   Thereafter the husband apparently paid the mortgage for the next three months up until the hearing. 

9. The father is legitimately concerned about a possible foreclosure sale of the property, uncertainty about how the wife can keep the property and how the transfer is to be effected.  If the property was transferred away or sold that would certainly render the appeal of the father nugatory, most particularly if the bank foreclosed.  This issue was not addressed in the material of the wife.  In answer to my question counsel for the wife indicated that his client would be content with an order restraining the sale of the property.

10. There are circumstances of uncertainty as to:

    ·whether the wife can refinance; or

    ·whether the wife would be transferring the property to a family member or not; and

    ·whether the encumbrance on the property is inconsistent with a greater payment in the event that the father was successful with his appeal;

    They are all circumstances that I take into account. 

11. Further, an order restraining the wife from selling the property would not bind a bank seeking to foreclose and sell.

12. For those reasons I consider it appropriate to stay the relevant property orders pending the hearing and determination of the appeal.

13. I am conscious there may be a second stay application given that the mother has filed a cross-appeal which could require reconsideration of these issues.

14. In the reasons for judgment it is stated that it was unlikely that the mother would be able to refinance the mortgage and borrow to pay out the interest of the father.[6] However, it was considered that she should be given that opportunity. That has not eventuated nor has the wife produced sufficient evidence of a genuine ability to do so and in those circumstances, where the numbers may change after appeal, I consider that the relevant orders should be stayed. 

    [6]Reasons for Judgment, para 478

15. Orders are made accordingly.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 24 August 2017.

Associate: 

Date:  31 August 2017