Grace & Grace

[2007] FamCA 299

FAMILY COURT OF AUSTRALIA

GRACE & GRACE [2007] FamCA 299

FAMILY LAW - CHILDREN – final – mother’s mental health responsible for numerous adjournments

FAMILY LAW - PROPERTY – partial property orders – pre-requisites for further listing

Family Law Act 1975 (Cth)

HUSBAND: Mr Grace

WIFE: Mrs Grace

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2765 of 2004

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 27 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Harper

SOLICITOR FOR THE HUSBAND: Pogson Cronin

NO APPEARANCE FOR THE WIFE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boyle

THE INDEPENDENT CHILDREN’S LAWYER: Loretta Terrill Family Lawyers

Orders

1. That all previous parenting orders in respect of the children of the marriage N born in September, 2000, R born in September, 2001 and K born in February, 2003 be discharged.

1. That the husband have sole parental responsibility for the children  PROVIDED THAT  :

   (a)he give the wife no less than 28 days notice of any intention to change the school or schools attended by a child of the marriage;  and

   (b)as far as practicable, he keep the wife informed of issues relating to the children’s education, health and other matters of significance in their lives. 

1. That the wife spend time with the children as follows :

   (a)each alternate weekend from 5:00 pm. Friday until 5:00 pm. Sunday;

   (b)for one half of each short school vacation period, as agreed between the parties or, failing such agreement, during the first week of each such vacation period, commencing at 10:00 am. on the first Saturday and concluding at 10:00 am. on the following Saturday;

   (c) for three weeks during the Christmas school vacation period commencing, in alternate years, on 19 December and 10 January, and the first such period of time shall commence on 10 January, 2008;

   (d)for a period of four hours on Christmas Day if it is not otherwise a day on which the children would spend time with the wife;

   (e)for a period of four hours on each of children’s birthdays, if they are not on days on which the children would otherwise spend time with the wife;

   (f)for a period of four hours on Mothers’ Day if it is not on a day on which the children would otherwise spend time with the wife;  and

   (g)such other times as may be agreed between the parties.

1. That the husband spend time with the children at the following times, if the children are not otherwise living with him at those times :

   (a)for a period of four hours on Christmas Day;

   (b)for a period of four hours on each of the children’s birthdays;

   (c) for a period of four hours on Fathers’ Day;

   (d)for a period of four hours on the husband’s birthday;  and

   (e)at such other times as may be agreed between the parties. 

1. That by way of partial property settlement :

   (a)the husband forthwith do all things reasonably necessary to withdraw the sum standing in the term deposit with AMP Investments (being the sum of $50,000 plus accrued interest) and pay such sum to the wife;

(b)(i)     the following paragraphs are binding on the trustee on the C Super Fund (“the fund”); 

(ii)that the base amount allocated to the wife in these proceedings out of the interest of the husband in the fund is $49,978.75 (“the base amount”) of $99,957.51 being the gross value of the husband’s interest in the fund as at 31 December, 2006;

(iii)that pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the husband in the fund the wife shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (“the regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;

(iv)this order has effect from the operative time;

(v)the operative time for the purpose of this order is four business days after the date of service of these orders upon the trustee of the fund;

(vi)that there be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the superannuation interest;

(vii)that until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife :

A.the husband shall provide to the wife no less than 28 days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except to become entitled to access in whole or in part his entitlement in the fund;

B.the husband shall direct and authorise the trustee of the fund to communicate with the wife and/or any person authorised by her in writing :

X.to answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund;

Y. to provide to the wife or her authorised representative a copy of any notice of any application or request by the husband that seeks release of entitlements in the fund insofar as that release may affect the wife’s entitlement in the fund pursuant to these orders;  and

Zt he husband by himself, his servants and/or agents be and hereby is restrained from doing any act or thing which will prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders;

(viii)in the event that the superannuation fund split to the wife pursuant to these orders can be rolled over into a separate account to the wife, each of the parties shall do all such acts and things and execute all such documents as be necessary to facilitate and to implement that rollover.

1. That the applications for parenting orders be otherwise struck out  PROVIDED THAT  the wife have leave to apply for her application to be reinstated by filing the following documents :

   (a)an application seeking reinstatement, setting out with specificity the final parenting orders then sought;  and

   (b)an affidavit from a treating medical practitioner, setting out with precision the wife’s medical history, current diagnosis and prognosis in respect of her psychiatric/psychological illness.

1. That the applications for final property orders be otherwise adjourned to a directions hearing at 10:00 am. on 1 March, 2010  PROVIDED THAT  either party have liberty to apply to list the matter prior to the adjourned date by filing an application setting out with specificity the additional property orders sought and, if the application is made by the wife, an affidavit as provided in paragraph (6)(b) hereof. 

1. That a sealed copy of this order be sent to the wife at

   (a)the address for service contained in the Notice of Address for Service filed on her behalf on 23 February, 2007;  and

   (b)C.

1. That the independent children’s lawyer’s application for costs be dismissed.

2. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That although the Court found that the presumption of equal shared parental responsibility should not apply at this time, it accepted the submission of the husband that the parties should have equal shared parental responsibility if the wife’s health makes that practicable in the future.

1. That C Super Fund, by letter dated 21 February, 2007, confirmed receipt of the proposed order and consent to it in the form made, which letter has been placed in the correspondence section of the Court file.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 2765 of 2004

MR GRACE

Husband

And

MRS GRACE

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties to this litigation commenced living together at B in about 1983, married at F in October 1981 and separated in February 2004.  There are four children of their marriage.  C was born in June 1984 and is a young adult.  They have three young children, being N, born in September 2000, R, born in September 2001 and K, born in February 2003.  I do propose to hear the matter today in the absence of the wife for reasons which will become clear from this judgment.

1. The original application in these proceedings was filed by the wife in the local Magistrates Court in August 2004.  On 1 September 2004 it was transferred to this Court.  In it, she sought final parenting orders.  She amended that application by an application filed 12 November 2004 in which, in addition, she sought $250 per week spousal maintenance and such property settlement as the court considered appropriate.  The husband's response filed on 24 January 2005 was essentially a response to the application for parenting orders, rather than financial orders. 

1. On 14 December 2004, the applications were adjourned to a deputy registrar's list on 10 February 2005 with a direction for the filing and serving of financial statements.  On 10 February 2005, the matter was before the senior registrar, Mr Fitzgibbon.  He made interim orders which provided that, until further order, the children live with the wife and have contact with the husband.  Otherwise, the case was adjourned to 9 June in his circuit in Albury. 

1. At a listing before a deputy registrar on 18 April 2005, the deputy registrar noted that the proceeds of the former matrimonial home of some $262,000 had been taken by the husband and placed in a company account on or about 3 October 2003.  He gave an undertaking on 10 February 2005 not to distribute those sums.  The matter was otherwise adjourned to 20 April.  That day, a registrar adjourned the case to a trial notice list on 19 July, with a direction that the husband account for the money allegedly taken.

1. On 10 June, the matter was back before Registrar Fitzgibbon.  He made some changes to the parenting regime, relating to the husband's roster.  The time in which the husband had to comply with the order of 20 April was extended.  It appears at that time the children's matters, at least, were referred to a mediation service. 

1. On 19 July, trial notice directions were given.  The matter was fixed for a pretrial conference on 8 December.  Pursuant to those trial notice directions, a family report was prepared by Ms B, dated 2 December 2005.  That was later than anticipated, and that obviously had an effect on the parties' preparation for trial.

1. In an addendum to that report, Ms B noted that on 1 December she was advised that the wife had been taken to a psychiatric hospital and the children were in the husband's care.  Ms B was reasonably critical of both parents' failure to focus on the children, and their focus on their own unhappiness.  She stressed the limited nature of the report because of the time she had had to complete it, and the people with whom she was able to speak.  Nevertheless, it paints a picture of the family function at that time.

1. Prior to that family report being released, the matter was again before Registrar FitzGibbon, on 17 November.  On 13 December 2005, it was in the defaulters list.  It was adjourned to 10 March for further case management.  On 10 March, orders were made for a single expert witness to prepare what was referred to in the order as a psychiatric report and it was adjourned to a trial notice list at Albury on 6 April 2006. 

1. On 6 April, Ms W appeared as amicus for the wife, who had been represented on some previous appearances.  The matter was referred to a pretrial conference on 3 August, with directions for trial, and an independent children's lawyer was appointed.  There is a note to that order that it was adjourned to the trial notice list as the parents were looking at implementing recommendations and getting an updated report.

1. On 21 June 2006, the Albury callover record records that the mother's health issues were seen as likely to impact on the trial.  On 29 June, Registrar Fitzgibbon heard yet another interim application.  The children were still with their father, save alternate weekends and Wednesday nights in the intervening week.  He had another go at getting it ready for trial, adjourning it to a trial notice list on 6 July.  On that day, trial notice directions were given and it was adjourned to a pretrial conference on 2 November.  On 15 November, it was back in the defaulters list.  All parties were represented.  It was adjourned to yet another pretrial conference on 8 February, with yet more directions for trial.

1. On 29 November 2006, a report from Mr D (who is a psychologist, not a psychiatrist) came into evidence.  I cannot say if there was a single expert psychiatric assessment, but none is on the record.

1. In December 2006, more subpoenaed documents were released.  There was then a pretrial conference on 8 February;  again, all parties were represented.  The case was referred to the callover on 12 February and listed before me on that day.  The wife was to file and serve all her affidavits by 16 February.  The record notes that she proposed calling Dr P, who is the psychiatric registrar at N Clinic, and her treating general practitioner.

1. On 23 February, the wife's solicitors filed a notice of ceasing to act and a notice of address for service of the wife, which was a post office box in Berrigan.  The court was advised that the wife had, on two occasions in the last month, been admitted to N Clinic, at the regional Base Hospital.  The former solicitors noted that they had been trying to get instructions from her for some time;  the inference was that well prior to the time she was admitted to hospital they had been seeking instructions, without success.  They were thus ceasing to act.

1. The solicitor attached a letter from the psychiatric registrar at N Clinic, Dr P.  As I noted to counsel in discussion earlier today, it is dated 30 January 2007 although as the writer advised that the wife was admitted on 19 February, it is likely the date on the letter is wrong.  In that letter, Dr P advised that the wife :

   . . . will have some difficulty attending due to her illness and hospitalisation.  It is anticipated that she will need to remain in hospital for at least two weeks to the present.

1. What that summary may not provide is the flavour one gets from reading the material, which is that the wife's psychiatric problems tend to manifest around the time the applications are listed for hearing.  In saying that, I do not suggest there is anything strategic in that.  The listings may be a causal factor.  Through no fault of the husband or the independent children’s lawyer the Court is woefully short of expert evidence of the wife's condition and prognosis. 

1. What the Court can say is that the children have been with the husband for some time, in circumstances where his initial application was not for an order that they live with him.  He has taken on that role through necessity.

1. Further, given Mr D’s report, the Court can have some confidence in the relationship that exists between the father and the children, notwithstanding Mr D's concern about both parents’ problems in focussing on the children's emotional needs, rather than their own.  Mr D noted that being in the daily care of a sole parent with deteriorating mental health and associated bizarre behaviour can be very distressing for children;  I place weight on that evidence.  Similarly, in the family report emphasis is placed on the importance of protecting the children from the dispute and supporting them, notwithstanding the contested history that the parties provided.

1. The Family Law Act 1975 provisions relating to children rests on twin pillars. The first is the importance of protecting children against violence and abuse; the second is the importance of maintaining a meaningful relationship with both of their parents. The mother's mental health means that, at the moment, she cannot play a daily role in the children’s lives. Mr D's evidence satisfies me that the father was then managing the children fairly well, and managing their time with their mother well, ensuring she saw them frequently when she was well, and protecting them when she was not. The father told Mr D that he would like a shared care arrangement in the future, if the mother's mental health stabilised.

1. In these circumstances I am satisfied the Court must give precedence to protecting the children.  I take into account the evidence of the parties which is before the court.  I should say that the last material filed by the wife was her amended application of 2 August, which went to parenting matters only, and an affidavit filed on 6 June 2006 in support of a form 2 which went to another issue. 

1. I am satisfied that the best interests of the children require these proceedings to be finalised.  I do propose to make orders that they continue to live with their father and have contact with their mother as set out in the husband’s amended response filed 31 January 2007. 

1. I have considered whether the presumption of equal shared parental responsibility should apply.  In my view, for pragmatic reasons, it cannot.  The children need a parent who is committed to their welfare and well enough to make decisions for them, about matters such as their education and health.  It is simply not possible to make an order in other terms.

1. If the wife's health stabilises, and if she is well in the future, it is likely the situation would revert to both parents sharing parental responsibility for long-term decisions.  Orders will require the father to give 28 days' notice to the mother if he seeks to change the children's present school enrolments.

1. The parenting orders will be couched as final orders.  These reasons will make clear, and the father must understand, that in the event the wife's health stabilises, and she seeks different parenting orders in the future, the matter would then be determined on the evidence then before the Court.  The mother will have the right to reinstate her application for parenting orders, subject to certain conditions.  It may be reinstated if an application is made for the appointment of a case guardian for her.  If she applies to reinstate, the application must be supported by an affidavit or affidavits from a treating medical practitioner or practitioners setting out her medical history, diagnosis and prognosis in respect of her medical health, and an affidavit setting out with specificity the orders sought.

1. In relation to property it is a little more complicated.  There is very little evidence before the Court.  The husband has been candid about the circumstances in which he dissipated a significant asset built up by the parties, being the equity in the former matrimonial home.  I propose to make orders by way of partial property settlement.  They will provide that the remaining $50,000 (plus interest) invested with AMP be disbursed to the wife, and that a splitting order entitle her to one half of the husband’s superannuation entitlements.

1. Those applications will otherwise be adjourned to 1 March, 2010.  Each party will have liberty to apply to list the matter before the adjourned date.  If the wife makes such an application it must be supported by the material referred to earlier as essential for an application be reinstate her parenting application.  If there are no earlier applications, and no appearances on 1 March, 2010, all remaining applications will be dismissed.

I certify that the preceding
25 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GRACE & GRACE