GRAINGER & GRAINGER (SUPPLEMENTARY REASONS)

[2015] FamCA 462

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER (SUPPLEMENTARY REASONS) [2015] FamCA 462

FAMILY LAW – CHILDREN – where further submissions invited to define orders – whether a psychologist is required to assist in spending time – where child to have therapeutic sessions with psychologist – sole parental responsibility – supervised time.

FAMILY LAW – PROPERTY – whether sale proceeds used to pay expenses – where husband retained investment income and did not apply to defray related expenses – apportionment of payment of rates .

Family Law Act 1975 (Cth)

APPLICANT: Mr Grainger

RESPONDENT: Ms Grainger

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: LEC 612 of 2010

DATE DELIVERED: 18 June 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: By written submissions last received 27 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mason

SOLICITORS FOR THE APPLICANT: David Hunter Solicitors

COUNSEL FOR THE RESPONDENT: Mr Priestly

SOLICITORS FOR THE RESPONDENT: Susan Green Legal Practice

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Andrew

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Dooley Solicitors

Orders

CHILDREN

1. That all previous parenting Orders be forthwith discharged.

2. That the mother have sole parental responsibility for the child L Grainger born … 2009 (“the child”) save for any decision to relocate the child to live in a place that makes it significantly more difficult for her to spend time with the father pursuant to this parenting order.

3. That when the exercise of her sole parental responsibility, as provided for in paragraph 2 hereof, requires the mother to make a decision about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth), in relation to the child, save for the exclusion from that definition of decisions about the relocation of the child such that it makes it significantly more difficult for her to spend time with the father, the mother shall:

   (a)inform the father in writing of the decision to be made;

   (b)invite written input from the father;

   (c)take the father’s input into account when making the decision that is to be made; and

   (d)inform the father in writing of the decision she makes.

4. That the child shall live with the mother.

5. That the child shall spend time with the father as may be agreed in writing between the parties, or directed by the psychologist appointed under order 9 hereof, but failing such agreement or direction, on a supervised basis at the Interrelate Contact Centre at Town H (“the Contact Centre”) for not less than two hours per fortnight (or per week if the Centre can provide such time).

6. That the parties forthwith do all such things and sign all such documents necessary to enrol with the Contact Centre, to the extent that they have not already done so, and share equally in all of the costs of the supervision of the child’s time with the father conducted at that Centre.

7. That either or both of the paternal grandparents are at liberty to attend with the father when he spends time with the child.

8. That the mother is restrained from:

   (a)attending at the venue where the child is to spend time with the father, with the maternal grandmother;

   (b)prolonging her departure from the venue after delivering the child;

   (c)remaining at the venue when the child is spending time there with her father.

9. That the parties shall engage with a psychologist (“the psychologist”) selected by the Independent Children’s Lawyer to meet with the child one hour prior to and immediately after the first six (or such other number as may be advised by the psychologist) occasions that she spends supervised time with the father at the venue and the Independent Children’s Lawyer shall provide such psychologist with copies of the Family Reports of Ms B (2), Ms Morris (1), the Report of Dr V and these Reasons for Judgment, but no other documents pertaining to the matter.

10. That the parties shall instruct the psychologist referred to in paragraph 9 that he/she is not to discuss the child with third parties or to receive information from third parties, other than the manager of the venue.

11. That the parties shall comply with the psychologist’s reasonable directions including, but not limited to:

    (a)the preparation of the child for spending time with the father;

    (b)the venue at which the child is made available to spend supervised time with the father (noting that the psychologist may wish to supervise such time themselves);

    (c)activities which should be undertaken by the child when spending time with the father.

12. That either party is at liberty to obtain a written report from the psychologist after no less than six sessions of supervised time have occurred between the father and the child.

13. That the costs of the psychologist shall be shared equally by the parties.

14. That the father is at liberty to apply to vary this order as to his time with the child (including any requirements for supervision), after six sessions of supervised time have occurred between the father and the child and he has obtained a written report from the psychologist and Certificates of Completion of the parenting courses referred to in paragraph 19 of these orders.

15. That the mother shall authorise any school attended by the child to give the father information about the child’s educational and developmental progress and her involvement in school activities and to supply him, at his expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the child.

16. The mother shall authorise any medical practitioner who treats the child to give the father information about the child’s medical treatment.

17. That the mother be restrained from:

    (a)denigrating or criticising the father to the child or allowing any third party to denigrate or criticise the father within the presence or hearing of the child;

    (b)discussing these proceedings with the child;

    (c)other than as specifically provided in these orders, taking the child for counselling or psychological intervention or allowing others to do so unless recommended by the child’s school or general medical practitioner and after the mother has consulted with the father pursuant to paragraph 3 of these orders and has provided the father with the name, address and telephone number of the proposes counsellor or mental health professional.

18. That the father be restrained from:

    (a)denigrating or criticising the mother to the child or allowing any third party to denigrate or criticise the mother within the presence or hearing of the child;

    (b)discussing these proceedings with the child.

19. That the mother and father each complete a parenting course such as Triple P or 123 Magic and a Parenting Orders Course.

20. That the mother and father shall keep the other parent informed at all times of their residential address and mobile telephone contact numbers and shall advise the other parent of any change to any of those details within 48 hours of such change.

21. The Independent Children’s Lawyer shall:

    (a)notify the parties of his selection of a psychologist pursuant to order 9 of these orders; and

    (b)be discharged on 18 June 2016, or such other date as may be ordered.

PROPERTY

1. That within 28 days of the making of these orders, that each party take all necessary steps and execute all necessary documents to cause the former matrimonial home situated at T Road, Town O NSW and being the whole of the land in title reference Lot …, Strata Plan …, to be sold by auction at the earliest possible date, at a reserve to be agreed upon between the parties and failing such agreement to be determined by the nominee of the President of the Real Estate Institute of NSW.

2. That should the property not be sold at auction on the first occasion or within 3 months from the date of these orders then the property be listed at not more than $255,000.00 with such amount to reduce by $10,000.00 each further period of 3 months the property remains on the market until it reaches $235,000.00 and should the property not be sold within 5 months the property be listed for another auction within 6 months from the date of these orders on the same terms and conditions as the sale terms and conditions referred to in Order 22 with a reserve price to be calculated in the same manner as the sale price referred to in Order 22 and the proceeds to be divided in the same way with each party to contribute equally to the cost of such auction.

3. That either party be entitled to bid at any public auction.

4. That pending the auction of the property that the rental income of the property be solely applied to the outstanding mortgage, and/or expenses relating to the property.

5. That pending the auction of the property, the parties can accept all reasonable offers, including any offer made by one party to the other to purchase their share of the property.

6. That the proceeds of the said sale be disbursed as follows:

   (a)in discharge of the mortgage to the … Credit Union;

   (b)in payment of all outstanding rates, and strata levies incurred on and from the date of these orders;

   (c)in payment of real estate agent’s commission and fees and costs properly incurred in respect of which the father shall engage the real estate agent;

   (d)in payment of all conveyancing costs and disbursements, including those incurred to date in respect of which the parties agree that David Hunter Solicitor have carriage of the conveyance of the property;

   (e)that the balance be held in the Trust account of David Hunter Solicitor pending any determination by the Legal Aid Commission of NSW (“LAC”) as to assessment of contributions of the parties owed to LAC.

   Within 14 days of LAC notifying the parties of any assessment made, the parties are to instruct David Hunter to disburse funds held in trust as follows:

   (i)to LAC as per assessment/s made;

   (ii)to the mother, an amount equivalent to 70% of the funds less the assessment made to LAC as to the mother’s costs;

   (iii)to the father, an amount equivalent to 30% of the funds less the assessment made by LAC as to the mother’s costs.

7. That other than as otherwise set out in this agreement the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

8. That the father and mother do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

9. That in the event that either party refuses or neglects to execute any deed or instrument, a Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

GENERALLY

1. That otherwise all extant applications are dismissed and the matter removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grainger & Grainger (Supplementary reasons) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC612/2010

Mr Grainger

Applicant

And

Ms Grainger

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 20 April 2015 I delivered judgment consequent upon the trial of parenting proceedings between the parties.  At paragraph 334 of those reasons, having previously identified potential variations to the orders proposed by the Independent Children's Lawyer, I gave the parties the opportunity to make further submissions as to the precise terms of the orders that I should make.

2. The two matters upon which I invited further submissions were firstly, whether more than six therapeutic sessions between the child and a psychologist might be required, and secondly the extent to which that psychologist should be afforded therapeutic flexibility under the framework established by the orders.

3. Paragraphs 331 to 333 of those reasons read as follows:

   331. The Independent Children's Lawyer’s orders also adopted the recommendation of Ms [M] that a psychologist be utilised to assist with the child spending time with the father.  As formulated, the Independent Children's Lawyer proposed that occur for six occasions, however I am satisfied that if more than six are required, then the psychologist should be able to require their involvement to continue.

   332. Further, although the orders as proposed by the Independent Children's Lawyer anticipated that the child would go from the psychologist to the [H] Contact Centre and then back to the psychologist, I am not persuaded that this is necessarily the best arrangement.  I could well envisage that the psychologist may wish to be involved in the first introduction of the child to the father, perhaps even at her or his rooms.  They might wish to have the child spend time with the father – under their supervision – at a park or playground.  Subject to any submission to the contrary, I think that the psychologist should have some therapeutic flexibility available under the orders.

   333. Moreover it is quite possible that the psychologist might wish to meet with the child to establish rapport on one or more occasions prior to the child first meeting the father.  Again, it seems to me, subject to argument, that the therapist should be able to determine for themselves the optimal plan.

4. On 22 April the Independent Children's Lawyer indicated that he was content with the orders I had proposed in relation to the two issues.

5. On 24 April 2015 the father’s counsel made supplementary submissions.  They went well beyond the matters which I had intended any further submissions be confined to. 

6. On 27 April 2015 the mother by her counsel also made further submissions.  They were restricted to the matters discussed above, save that by paragraph 3 of those submissions, submissions were made in support of an order providing for the child to spend time with the father on a supervised basis, not at a contact centre but using “privately provided services.”

7. The mother also correctly identified that I was not seeking submissions generally in relation to the orders, but only restricted to the two matters discussed above.

8. In these supplementary reasons, I do not propose to traverse the matters raised by the father and the mother to the extent that they go beyond the matters raised in paragraphs 331 to 333 of the 20 April 2015 reasons.

MORE THAN SIX THERAPEUTIC CONSULTATIONS WITH PSYCHOLOGIST?

1. Neither party opposes the opportunity for the psychologist, if she sees fit, to require there to be more than six therapeutic consultations with the child.  I am satisfied that such an order is in the best interests of the child and will make the order I proposed in order 9 at the commencement of my 20 April 2015 reasons.

THERAPEUTIC FLEXIBILITY

1. Neither party opposed the psychologist having some therapeutic flexibility.  Particularly as I identified in paragraphs 332 and 333, the relative inflexibility of the Independent Children's Lawyer’s proposed orders did not seem to me to be desirable, given the many permutations and combinations which therapy might bring into play.

2. I am satisfied that the order which I proposed by order 11 at the commencement of my 20 April 2015 reasons is in the best interests of the child, and will make it

OTHER MATTERS

1. As indicated above I decline to deal with the mother’s and father’s further submissions in relation to the orders insofar as they go beyond the two issues upon which I invited further submissions.  The parties had ample opportunity to make such submissions in relation to the Independent Children's Lawyer’s proposed orders at the trial, and to prolong this process by a further round of submissions is not acceptable.

2. There will therefore be orders as set out at the start of the Reasons for Judgment delivered 20 April 2015.

PROPERTY PROCEEDINGS

1. At trial I was advised by the parties that property proceedings had been resolved, albeit they depended upon the outcome of the parenting proceedings.  Although at the conclusion of the trial I directed that minutes of those orders be brought in, that did not occur.  I therefore directed that it be done consequent upon my reasons of 20 April 2015.  As it turned out, in fact the parties were unable to wholly agree the terms of the consent property orders property in that one matter of detail remained unresolved.  The matter that they were unable to agree was whether or not from the proceeds of sale of the former matrimonial home, the “outstanding community levies and rates” should be either paid from the sale proceeds, or should be the sole responsibility of the father.

2. I was advised of this by letter from the solicitor for the mother dated 27 April 2015.  It was said in that correspondence “it is anticipated that his Honour may need to make an order in relation to the above.”  Neither party has sought to make any submissions.  Given the terms of the order, which might see a sale of the property more than six months hence, those costs might increase.

3. The argument appears to be this: since separation the father has been in receipt of rents from the property but has not used those to defray some expenses related to it.  He seeks, in effect, for the mother to be obliged to meet 70 per cent of those expenses because they will come from the net proceeds of sale, 70 per cent of which she would otherwise receive.

4. Given that the father has been in receipt of the income, but has not been meeting expenses, I am satisfied that it is just and equitable that he should bear the responsibility for those costs solely up until today’s date.

5. For those reasons there will be orders in the terms of the proposed Minute of Orders forwarded under cover of the mother’s solicitors’ letter of 27 April 2015, save the terms of order 6(b) will only operate from the date of these orders.  Otherwise it would oblige outstanding arrears of rates and strata levies to be met from the proceeds of sale.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 June 2015.

Associate: 

Date: 18 June 2015