Grantham & Birchmore

[2011] FamCA 486

FAMILY COURT OF AUSTRALIA

GRANTHAM & BIRCHMORE & ORS [2011] FamCA 486

FAMILYLAW – CHILDREN – With whom a child lives/spends time – Interim hearing – Where father has brain injury – Agreement reached for the child to spend regular time with the father supervised by his parents – Intervention by paternal grandparents in parenting proceedings – Paternal grandparents sought orders to spend time with the child – Where child has a good relationship with paternal grandparents – Where there needs to be a balance between time child will spend with paternal grandparents, father and the mother – Orders for paternal grandparents to spend time with child made in terms of the Independent Children’s Lawyer’s minute of order.

FAMILYLAW – CHILDREN – Application by father for injunction restraining the mother from leaving the child in either of the mother’s brothers sole care – Where evidentiary foundation for proposed restraint is lacking – Application refused.

FAMILYLAW – PROPERTY – Interim distribution – Compensation payment – Whether court should make a “dollar for dollar” interim costs order – “dollar for dollar” order not made – Where quantum of interim payments unlikely to exhaust mother’s final property settlement – Where mother has other assets to rectify any maladjustment – Orders made for interim payment in the mother’s favour.

FAMILYLAW – CAPACITY – Whether the father has capacity to conduct the parenting proceedings – Where the father has a Case Guardian in financial proceedings – Definition of a person with a disability under the Family Law Rules 2004 considered – Ordered that the father obtain expert opinion about his capacity to continue to conduct the parenting proceedings.

Family Law Act 1975 (Cth)

Family Law Rules 2004

Felice & Felice [2011] FamCA 162
Kennon & Kennon (1997) FLC 92-757

APPLICANTS: Mr Grantham and NSW Trustee & Guardian

1st RESPONDENT: Ms Birchmore

2nd RESPONDENT: Mr L

3rd RESPONDENT: Ms M

INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

FILE NUMBER: SYC 6258 of 2010

DATE DELIVERED: 23 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Levy

SOLICITOR FOR THE APPLICANTS: York Family Law

COUNSEL FOR THE 1^ST RESPONDENT: Mr Richards

SOLICITOR FOR THE 1^ST RESPONDENT: Vizzone Ruggero & Associates

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS: Ms Hausman

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS: Moylan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce as agent Rafton Family Lawyers

It is ordered

BY CONSENT AND PENDING FURTHER ORDER

1. That the child N born … 2005 (“the child”) shall live with the mother.

2. That the child shall spend time with the father as follows:

   (a)       from 4.00 pm until 6.00 pm each Wednesday;

   (b)       each Sunday from 9.00 am until 7.00 pm;

   (c)during any NSW school holiday period on the Wednesday of any school holiday week from 9.00 am until 7.00 pm.

3. That the father’s time with the child shall be personally supervised by the paternal grandparents who shall be present as a condition of the father’s time with the child proceeding or continuing.

IT IS FURTHER ORDERED PENDING FURTHER ORDER

1. That the child shall spend time with the paternal grandparents as follows:

   (a)On the third occasion that the child is to spend time with the father in each three week cycle, the grandparents to collect the child from school on the Friday and return the child to the mother at 7.00 pm on the Sunday, provided however:

   (i)the father shall not be present at their home until 9.00 am on the Sunday;

   (ii)that in the event the father returns to their home prior to 9.00 am on the Sunday, they shall contact the mother and return the child to the mother immediately, and shall collect the child at 9.00 am on the Sunday in accordance with the usual cycle.

   (b)During the NSW school holiday period, for two days during each week, independent of the weekend cycle, such days to be agreed between the parties and failing agreement to commence on Tuesday at 9.00 am and conclude on Wednesday at 5.00 pm UPON CONDITION that the father is not present at their home or in contact with the child during that period until 9.00 am Wednesday, and in the event the father attends their home or otherwise approaches the child other than provided herein they shall contact the mother and arrange the child’s delivery to the mother until 9.00 am on the Wednesday at which time they shall collect the child, and they shall return her at 5.00 pm on that day.

2. That the mother shall use her best endeavours to facilitate telephone contact between the child and the father between 5.00 pm and 6.00 pm each evening that the child is in the mother’s care.

3. Other than those occasions when the paternal grandparent’s collect the child from school, they are responsible for her collection and return from the mother’s home or such other place as agreed with her.

4. That the parties are restrained from physically chastising the child or allowing any third person to do so.

5. That Prof O be appointed the Court expert on terms agreed between the parties to prepare a report in the matter.

6. That pending completion of the final hearing within 21 days the NSW Trustee & Guardian shall pay to the mother on the father’s behalf the sum of one hundred thousand dollars ($100,000.00).

7. That the NSW Trustee & Guardian is hereby restrained from transferring, disposing or otherwise reducing the funds held on trust for the benefit of the father below the amount of one million dollars ($1,000,000.00) without first giving the mother 21 days notice in writing.

8. The parents and grandparents are restrained from speaking or permitting any other person to speak critically or unpleasantly about another party in the presence of the child or within her hearing.

9. Unless the NSW Trustee & Guardian has already done so, within 21 days the NSW Trustee shall provide particulars to the mother’s solicitor of each transfer, withdrawal or payment made by them from the father’s settlement of his motor accidents claim in the District Court of NSW.  The Court Notes this is a continuing obligation.

10. Subject to any application for costs, all outstanding applications for interim orders are dismissed.

11. Before the father takes another step in the parenting proceedings he shall file and serve an affidavit from an appropriately qualified health professional which addresses:

    (a)his capacity to instruct a legal representative in the parenting proceedings;

    (b)his capacity to understand the nature or possible consequences of the parenting proceedings; and

    (c)whether he is capable of adequately conducting, or giving adequate instruction for the conduct of the case.

12. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED that publication of this judgment under the pseudonym Grantham & Birchmore and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6258 of 2010

Mr Grantham and NSW Trustee & Guardian

Applicants

And

Ms Birchmore

First Respondent

And

Mr L

Second Respondent

And

Mr M

Third Respondent

REASONS FOR JUDGMENT

1. Before the Court are various claims for interim parenting, financial and injunction orders.  The parenting proceedings relate to the child N (“the child”) who is six.  The child lives with her mother, Ms Birchmore (“the mother”).  Pursuant to interim parenting orders made by consent in the Federal Magistrates Court on 12 November 2010, the child spends time with Mr Grantham (“the father”) each Sunday from 9.00 am to 7.00 pm and at other times agreed between the child’s parents.  The child’s time with the father, by order, is supervised by one or both of the child’s paternal grandparents (Mr L and Ms M) (“the paternal grandparents”).  Supervision is necessary because of the effects upon the father’s parenting capacity of serious injuries he suffered in a motor vehicle accident in May 2003.

2. Five weeks after the interim orders were made the father filed a variation application.  Although there was no relevant change in circumstances this point was not taken.  In short, he proposed that during school term the child live with him from after school Friday until the commencement of school Monday three weeks out of four and from Tuesday until Thursday in the fourth week, on a rotating cycle.  In addition, he sought half school holidays as well as a raft of special occasions.  According to the father, although he was represented by a lawyer, he felt pressured to enter into the interim orders and, having changed solicitors, decided to bring this fresh application.  His application for interim orders was filed in the context of final orders in which the father seeks the child lives with him and his parents and spends time with the mother each alternate weekend and such other time as the parents agree.  It is immediately apparent no provision is made for the mother to spend time with the child, for example, on special occasions nor during school holidays.  When this interim hearing commenced the father sought those orders identified in his application in a case filed on 23 December 2010.  Subsequently, the father filed an amended response (28 February 2011).  In his amended response he proposed the mother receive $50,000.00 by way of property settlement.  The final parenting orders sought by him were not amended.

3. The mother relied upon her response to an application in a case filed on 16 March 2011.  In relation to the child’s time with the father, in addition to the time provided for in the interim orders, she proposed the father spend time with the child during school term, from after school each Wednesday until 7.00 pm.  This was upon condition one of the father’s parents supervised.  By way of interim financial orders the mother sought $200,000.00 and $550.00 per week child support.  Prior to this hearing, agreement was reached that the father would pay child support in the amount of $270.00 per week.  Her application for interim financial orders is brought in the context of her application for property settlement orders filed 1 October 2010.  Summarised, the mother claims an adjustment of 50 per cent of the father’s assets.  The effect of the mother’s property settlement application is that she claims half of the $3.5 million (plus costs) damages paid to the father in relation to his May 2003 motor vehicle accident.

4. By order of the Guardianship Tribunal (NSW) management of the father’s estate is committed to the NSW Trustee and Guardian (“the NSW Trustee”).  The NSW Trustee filed the necessary consent to appointment as the father’s case guardian limited to property settlement and associated financial proceedings.  The NSW Trustee retained the same lawyers who represent the father in the parenting proceedings.  It is the NSW Trustee’s application that by way of property settlement the father pay the mother $50,000.00.  Rounded out, this equates to about 1/70^th of the father’s damages settlement.

5. While the pool of assets available for distribution in the s 79 Family Law Act 1975 (Cth) (“the Act”) proceedings is not settled, apart from the father’s damages verdict, there are cars and other small assets worth no more than about $80,000.00 and a one quarter interest in a unit at Suburb E which the mother inherited. For present purposes, this is valued at $200,000.00. Again, taking a broad brush approach, when the mother’s assets and liabilities are taken into account the NSW Trustee proposes that she receive approximately 9 per cent of the matrimonial assets.

6. During the hearing, counsel for the father and NSW Trustee contended that an outcome to the property proceedings which resulted in the mother retaining her assets and receiving $50,000.00 - $100,000.00 would be just and equitable.  On the facts as disclosed in documents filed thus far it is my preliminary assessment the contention does not withstand scrutiny.  Nor, does the mother’s claim to 50 per cent of the father’s damages verdict.

7. Neither the father nor the mother have legal or business training and it is likely they are reliant upon legal advice in relation to what a just and equitable outcome to the property settlement proceedings would comprise.  It will serve them ill if they are given unrealistic expectations.

8. I make these opening observations because, in part, they reflect my concern about the parameters of the property settlement dispute and the father’s desire to re-litigate recently made interim parenting orders.  My concern became alarm when I received the mother and father’s costs disclosure documents.  In relation to the father, his legal expenses to date are approximately $80,000.00[1].  I do not know if the NSW Trustee will impose additional costs in relation to its role as his case guardian and it is possible that his costs are greater than the sum referred to.  The mother’s costs are also sizable and amount to approximately $65,000.00.  Thus, before the mother and father have advanced to a conciliation conference, between them they have incurred legal fees of $145,000.00.  From the Court file, particularly the number of Court events, it is not apparent why costs of this magnitude have been incurred.  Because of my concern I recommended, which recommendation I repeat, that the mother, father and NSW Trustee obtain further advice about the range of likely outcomes.

   [1] Exhibit “A”

9. The father’s parents applied to intervene in the parenting proceedings as persons interested in the child’s welfare.  The child’s parents and Independent Children’s Lawyer (“ICL”) consent to them being made parties.  Initially, the father’s parents sought orders which mirrored those contained in the father’s interim application.  Later, counsel for the paternal grandparents provided a Minute of Order[2] which set out an amended suite of interim orders sought by them.  Summarised, they propose that the child spend time with them from after school Friday until Sunday evening each alternate weekend, each Wednesday from the conclusion of school until 7.00 pm, commencing in the July 2011 school holidays for half of the school holidays, nominated days during the April 2011 school holidays and part of Christmas.  Excluding time the child spends with the father under their supervision, the time they would spend with the child would not involve the father.  Whether by injunction, or undertaking (which was given at the hearing), they agreed if, contrary to order, the father intruded into their time with the child, she would be returned to the mother.  Their position was influenced by the parents’ agreement for the child to spend time with the father along the lines proposed by the ICL.

   [2] Exhibit “J”

10. So that it is clear, before me agreement was reached between the parents and ICL that interim orders be made which provided that:

    ·The child live with the mother;

    ·The child spend time with the father, supervised by one or other of his parents, each Wednesday from 4.00 pm until 6.00 pm, each Sunday from 9.00 am until 7.00 pm and during school holidays from 9.00 am until 7.00 pm each Wednesday.

11. In relation to the child’s time with the paternal grandparents, the ICL proposed that the child spend time with them as follows[3]:

    i.On the third occasion that the child is to spend time with the father in each three week cycle, the grandparents to collect the child from school and return the child to the mother at 7.00 pm on the Sunday provided however;

    a.     The father shall not be present at their home until 9.00 am on the Sunday;

    b.     That in the event the father returns to their home prior to 9.00 am on the Sunday, they shall contact the mother and return the child to the mother immediately, and shall collect the child at 9.00 am on the Sunday in accordance with the usual cycle.

    ii.During the NSW school holiday period, for two days during each week, independent of the weekend cycle, such days to be agreed between the parties and failing agreement to commence on Tuesday at 9.00 am and conclude on Wednesday at 5.00 pm, and the father shall not be present at their home during that period until 9.00 am Wednesday, and in the event the father attends at their home other than as provided herein they shall contact the mother and arrange the child’s delivery to the mother until 9.00am on the Wednesday at which time they shall collect the child, and they shall return her at 5.00 pm on that day.

    [3] Exhibit “K”

Parenting applications

1. Although the parties filed quite detailed affidavits, the nature of interim hearings, which do not usually accommodate cross-examination, means that the Court is unable to determine contentious matters. Contentious matters may, however, be relevant to the assessment and management of risk pending the final hearing. Decisions in relation to children are decided by reference to their best interests in accordance with the provisions of Part VII of the Act. There one sees a list of provisions which (subject to the applicability of a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility) are to be considered to the extent each is relevant, in order to deliver an outcome which is in a child’s best interests.

2. As was mentioned earlier there is agreement in relation to the time the child spends with the father.  The outstanding issues concern the amount of time the child will spend with the paternal grandparents and allied matters.  In relation to these matters the mother agreed with the orders proposed by the ICL[4].  The father supported his parents’ application.  Relevantly, other than when they supervise his time with the child, he and his parents agreed he would be excluded from spending time with the child when she is with the paternal grandparents.  Because the father resides with his parents, this arrangement would be addressed by the father vacating their home during these periods.  Arrangements were made with his brother and his housemates for the father to take his brother’s room in their shared house during which the father’s brother would stay with the paternal grandparents.

   [4] Exhibit “K”

3. In relation to the paternal grandparents’ time with the child, the essential points of difference in the two approaches are:

   ·whether the child should have each second or third weekend with them;

   ·whether the mother should collect the child from the paternal grandparents on Sunday evening;

   ·during school holidays (independent of the weekend cycle which would continue) whether the child should have two days (one night) each week or half to coincide as far as possible with periods the mother works with them.

4. In January 2011, a Family Consultant met the mother, father and child for a Children’s and Parents Issues Assessment. To the Family Consultant, the child presented “as being a pretty, observant and outgoing child.  The play was imaginative and she was quite chatty”.  The child described her living arrangements and spoke affectionately about her parents and paternal grandparents.  She also described the father as “getting angry when ‘people call him something or say something’, although he does not get angry with her.  She feels sad, however, because he (‘Daddy’) ‘keeps yelling at Nanny and Granddad and stuff’.  [The child] said that she has never felt scared of her father”.  Information recorded in the father’s medical records referred to serious outbursts by the father which, as well as others, scared the child.  There was nothing in the child’s presentation in this limited assessment which indicated her day to day needs are unmet.  She would appear to be meeting her developmental milestones.

1. When the child was born the parents resided with the paternal grandparents.  The mother took maternity leave for three months during which she was primarily responsible for the child’s care.  When she returned to work one to two days per week in August 2005, the father’s parents, mainly his mother, helped care for the child.  The maternal grandmother also helped.  When the child was about 11 months old the mother’s hours of employment increased to 38 hours each week.  This was a promotional position which she undertook for a couple of months and was then made redundant.

2. On 30 September 2006, she resumed work with the same company in a different location.  This was a part-time position in relation to which the mother worked every second weekend and 2-3 days during the week from 11.30 am until 7.00 pm or 10.00 pm on Thursday night.  Again the paternal grandparents helped with the child when the mother was at work.

3. With the mother’s support, the father obtained employment with her employer in 2006, where he worked for about one year. 

4. In early 2007, the parents vacated the paternal grandparents’ home and moved in with the maternal grandmother.  Although it is not entirely clear, it would appear they resided with the maternal grandmother until mid May 2007.  The catalyst for the parents vacating the maternal grandmother’s home was an altercation between the father and one of the mother’s brothers in relation to which Police were called.  Following this incident, the parents stayed with friends for about nine weeks.  Then, for about two weeks, they returned to the paternal grandparents’ home who again assisted with the child’s care while the mother was at work.  For the period the parents lived away from the paternal grandparents’ home, the maternal grandmother assisted with the child’s care and their involvement reduced.

5. In mid September 2007, the parents moved into a home they rented.  Since then the mother and child have not lived with the paternal grandparents.  The child, however, still spent considerable time with them.

6. The child commenced day-care at Suburb P in about January 2008 as a consequence of which she spent less time with the paternal grandparents during the day.

7. In November 2008, the mother resumed fulltime employment with the same employer, but at Suburb Q, which was closer to home.  On a four week rotating shift she worked from 6.00 am until 2.00 pm and 2.00 pm until 10.00 pm.  She was able to vary her hours of work so that she was substantially responsible for taking the child to and from day-care and preschool. 

8. The child commenced pre-school at Suburb Q in January 2009 where she attended four days per week.  Until March 2009, the mother was able to deliver her to preschool.  The paternal grandparents or paternal aunt collected her from preschool when the mother was unavailable.  On those occasions, the mother collected the child on her way home from work.  During this period, the mother also worked one Saturday in four.  While she was at work the paternal grandparents or paternal aunt cared for the child.  When the child was cared for by her paternal relatives the father was usually present.

9. The mother’s employment conditions changed again in late March 2009 and again during the year.  The effect of this was that generally, she started work between 6.00 am or 7.15 am until 2.00 pm or 3.15 pm or from either midday or 2.00 pm until about 8.00 pm.  When the mother worked morning shifts she delivered the child to the paternal grandparents who took her and a younger cousin, R to preschool.  R lives with her mother at the paternal grandparents’ home.    

10. It is unnecessary to recite the details of the increasingly difficult situation which developed in the parents’ home in the lead up to their separation.  It is sufficient at this point to record how in 2009 the father described the situation to a psychiatrist (Dr H).  To Dr H the father reported:

    He is easily frustrated and often becomes severely angry.  While he says he has some awareness about his anger it was very evident when describing the situations where he had become angry that he had limited awareness.  He is both verbally and physically aggressive.  In the past month he has assaulted his previous employers and two observers at a baseball match for the team that he was training.  He has physically assaulted his partner [the mother] and his young daughter is at times quite fearful of him and simply runs away screaming.  He will exit from a vehicle and chase a person and exhibits severe road rage becoming verbally abusive and excited in a vehicle.  It does not appear that he has a sense of becoming angry and at times places himself in situations which are likely to provoke an outburst.  He has no recognition of his menacing and threatening behaviour.

11. Dr H also interviewed the paternal grandparents who described life with the father as a “nightmare”.  They said he is quick to explode and that his emotional control is extremely poor. At paragraph 4.26 of her report they appear to confirm the father’s account that he is often verbally abusive and had been physically abusive.  It seems to be accepted that Dr H’s opinion that the father suffered a “personality change secondary to a traumatic brain injury with aggressive traits and he has a cognitive disorder secondary to head injury” is correct. 

12. Dr H’s opinion is consistent with that expressed by Dr I who also interviewed the mother and paternal grandparents.  It is noteworthy that the information provided by the paternal grandparents to him is consistent with the information recorded by Dr H.  This includes their description of the very serious attack by the father upon his employers (referred to earlier) and an incident where he grabbed a knife and was so angry the paternal grandfather was concerned “that at any moment he may have slashed his throat deeply with the knife.” The paternal grandparents and the mother told Dr I they were extremely afraid of the father’s temper.  There was shared concern about his interaction with the child and that he may unintentionally harm her.  I agree with Dr I that the information given by the paternal grandparents and the mother to him (about which there is no dispute between them) is concerning and provided a sound foundation for Dr I’s opinion that at that time “his daughter seems at significant risk”.

13. Unfortunately it is appropriate to note that although the father and his parents relied upon these reports in other forums they provided little of this information to the Court.  The point being in other forums they presented the information contained therein as reliable.   Yet in these proceedings they seem to have attempted to create the impression the mother’s evidence about difficulties she had with the father’s behaviour and the paternal grandparents’ difficulty containing him was unreliable and thus there was no good reason why the father should not have the orders sought by him.  I agree with the ICL that a more complete account of these matters was required. 

14. There is evidence of a particularly distressing incident on 19 June 2010 which, if established, involved a violent assault by the father upon the mother.

15. On 5 July 2010, the parents saw the father’s Neuropsychologist.  Contrary to the father’s wish, on that day a decision was made for them to temporarily separate.  He moved to his parents’ home and agreed to attend anger management counselling.  The child remained with the mother.  The mother decided not to resume their relationship.  The day before the father was due to return she applied for an Apprehended Violence Order (“AVO”) which she later withdrew.  Since then the father has lived with his parents. 

16. Thereafter the childcare arrangements continued so that when the mother was not at work the child was with her.  Otherwise the child was at preschool or cared for by the father and his parents.  When the mother worked morning shifts the father came to her home where he cared for the child from when she awoke until he delivered her to preschool a couple of hours later.  The mother’s neighbours kept an eye on them and on occasion popped in.  When the mother worked afternoon shift the father and one of his parent’s collected the child after pre-school and cared for her until the mother picked her up on the way home. 

17. There is an issue about how often the child stayed overnight with the father between separation and September 2010.  According to the mother there was a three week period during which the father insisted the child stay with him overnight one or two nights midweek.  He and his parents say the midweek overnight stays were more extensive. Resolution of this controversy must await the final hearing.  Irrespective of the frequency, there is no suggestion the child came to harm in this period.     

18. While the mother was at work on 3 September 2010, the child was cared for by the father and his parents.  It was arranged the father would return the child to the mother.  When the mother arrived home from work at 10.00 pm the child was in bed and the father was present.  He had been drinking.  One of the issues raised by the mother is the extent of his alcohol consumption and drug use.  In this regard I note the father told Dr S he had been a “heavy drinker” and “admitted to a number of street drugs” which is consistent with the mother’s evidence. In any event, an argument developed during which the father threatened suicide.  He took a kitchen knife and cut his left forearm.  After the mother tried unsuccessfully to contact his parents she asked neighbours for help.  According to the mother, the father again grabbed the knife, entered the child’s bedroom and pulled the blankets off her bed.  The mother said she persuaded the father to leave the child alone and wait until his parents arrived.

19. When the father’s parents arrived they tried to calm him.  Although the details are in dispute, there is no doubt a serious argument developed between the father and paternal grandfather during which the mother took the child to her neighbour’s home and called Police.  The father followed and when he realised who she was speaking too, notwithstanding the child was in her arms, he tried to pull the telephone from her.  According to the mother, her neighbours pulled the father off her.  Not long after the mother, father and child returned to her home where they waited for Police. The Police took the father to Suburb T Hospital. 

20. An interim AVO was made on 7 September 2010 for the mother and child’s protection from the father. 

21. At the mother’s behest, following the incident on 3 September 2010 the child’s time with the father and paternal grandparents ceased.  She gave up the Suburb V property, returned to her mother’s home at Suburb U and withdrew the child from preschool.  This meant that the arrangement, which had lasted for about seven months, whereby the child attended the same preschool as her cousin came to an end.

22. On Father’s Day 2010, the father admitted himself to Suburb T Hospital for three days.  From there he was transferred to W Hospital at Suburb X where he remained for five weeks.  The focus of this admission was to address his depression and anger.  The Court received a report from the psychiatrist who treated him (Dr S) and the psychologist (Ms Y) to whom he was referred on discharge.  Each commented favourably upon his concern for the child.  Based upon his self report and their dealings with him they commented that it would be reasonable for him to have contact with the child under his parent’s supervision. Nothing in their reports suggests they had access to the information provided to the medical practitioners mentioned earlier.  I infer they had not.  Neither had seen the child nor spoken to the mother. In these circumstances it is appropriate to attach greater weight to the earlier, albeit older, reports.  It follows that because of the nature of the father’s injury and disability it would seem there is little prospect that his symptoms will abate in the short term.     

23. At about this time the paternal grandparents spoke to the mother about their desire to see the child regularly.  No agreement was reached about where and how often this might happen.  In the event, the child saw the paternal grandparents for an hour (perhaps slightly more) at a park on 20 September 2010.

24. The paternal grandparents were abroad from 22 September 2010 until 8 October 2010.

25. The child spent the day with the paternal grandparents on 17 October 2010 and 31 October 2010.  Having first sought and received their undertaking the child would be returned and the paternal grandparents would supervise him, the mother agreed the father participate on the later occasion.  This was the first time he had seen the child since 3 September 2010.

26. On 19 October 2010 the child was removed as a protected person under the AVO and a two year final AVO made with only the mother as a protected person.

27. Subject to the same conditions required for 31 October 2010, the child spent the weekend of 6 - 7 November 2010 with the paternal grandparents and father. 

28. On 12 November 2010 the interim parenting orders referred to earlier were made by consent.  There is no dispute that the child spent time with the father and his parents in accordance with those orders.  The mother also agreed to a number of requests for additional time.  This included, for example, attendance at a paternal family celebration on 17 December 2010, a Wiggles concert on 18 December 2010 and Christmas Day.  Although the father complained in his affidavit and instructed his solicitor to write a large number of letters seeking even more additional time during this period, no criticism of the mother’s failure to accede to his request is warranted.

29. The mother stopped paid work on 16 December 2010.

30. On 4 January 2011 the mother obtained work with her former employer at Suburb Z which is close to the maternal grandmother’s home.  The mother’s working hours are 9.30 am to 2.30 pm on Tuesday, Wednesday and Thursday and from 10.00 am until 6.00 pm on Sunday.  It will be recalled that on Sunday the child spends time with the father.

31. The child started school at AA School in 2011.  Her school is close to where the mother lives and works.  The mother’s hours of work enable her to take the child to and from school.  The child has settled in well at school and is in a good routine which, amongst other things, has made it easier for her to settle in the evening.

32. It would appear that, on 14 March 2011, the father contacted the mother by telephone in apparent breach of the AVO.  The mother reported her concerns to police and on 20 March 2011 the father was charged with breaching the AVO.  It is the father’s evidence the mother had telephoned him and he will defend the charge.  There would appear to be little comparison between the nature and frequency of the calls which the father made to the mother (numerous and according to her in some instances abusive) and those he said she made to him (few in number and not abusive). 

33. During that same week, the child was ill.  She was kept home from school and taken to hospital.  On Thursday, 17 March 2011 the child was up during the night vomiting.  The following day the mother’s solicitors informed the father’s solicitors the child was ill as a consequence of which she would not be made available to spend time with him on 20 March 2011.  The father’s response is summarised in his solicitor’s letter dated 18 March 2011.  Relevantly, he replied:

    Whilst the child might have been vomiting last night, being Thursday night, our client is due to spend time with the child on Sunday and there is no reason why your client can withhold complying with the orders of the Court.  If your client does not make the child available for collection by our client on Sunday as per the orders our client will seriously consider filing an Application for Contravention.  Even if the child is ill come Sunday our client and his parents can look after the child whilst she is in their care.  They have done so in the past and there is no reason why our client and his parents will not be in a position to care for the child. 

34. It is difficult to understand why the father considered it appropriate to respond in such an intemperate manner.  It bespeaks an attitude which is neither child-focussed nor conducive to co-operative parenting. A more appropriate response would have been to agree the child recover at home and request make up time.

35. The child was not made available on 20 March 2011.  Under cover of her solicitor’s letter dated 22 March 2011 the mother offered makeup time which, I infer occurred.

36. It is the mother’s proposal she and the child move into rented accommodation.  Unless she receives financial support from the father, whether by way of maintenance or property settlement, she is unable to afford this.  The father is very concerned that the child lives with the mother’s brothers, indeed sufficiently so he applied for injunctions in relation to them.  Ultimately, it was agreed by the NSW Trustee that a sum of money will be made available to the mother and it is likely she will shortly move into a rented flat with the child.

37. The father and his parents contemplate that they may move closer to the Suburb U area.  This way travel time between the parties’ homes would be reduced and it would be easier for the child to move between them.  Because these plans are not sufficiently fixed it would be inappropriate to proceed on the basis the parties will shortly live in close proximity.

38. Because of the conditions under which the child spends time with the father she will spend time with her paternal grandparents each Sunday and Wednesday.  It is clear the child enjoys her time with her grandparents and I infer theirs is a mutually affectionate grandparent and grandchild relationship.  The level of contact by the child with her paternal grandparents whenever she sees the father will easily maintain their relationships.  Because R lives with her paternal grandparents the cousins will also be able to continue what appears to be a nice relationship.

39. It is, appropriate, that the child also has an opportunity to spend slightly longer periods with her paternal grandparents with whom post separation she had stayed overnight.  It will be recalled, she lived with them in her early years and they were involved with her care.  This would appear to have filled the dual purpose of enabling the mother to support the father and the child, as well as facilitating an important relationship for the child with her paternal grandparents.  Because the child lived in her paternal grandparents’ home for the periods referred to, these relationships have a stronger foundation and greater significance to the child than would otherwise have been the case.

40. While I understand the paternal grandparents’ desire for the child to spend each second weekend with them, this needs to be balanced by the importance to the child of adequate time with the mother and stability.  Now that the child is at school, weekend time and school holiday time is the only time the mother and child can really socialise beyond the home and enjoy recreational activities.  On the paternal grandparents’ proposal, the child would spend the majority of her weekend time away from home and her mother.  Not only does this create a fairly unstable life it restricts to an unreasonable degree the child’s opportunity to participate in a real way in non school based activities with the mother.  From the child’s perspective, it is preferable for this relationship to be nurtured with the mother being responsible not only for the child’s time during the school week but also having a proper opportunity for what children generally perceive are the more pleasing activities available on weekends and during holidays.

41. I also agree that the approach recommended by the ICL to the child’s time with the paternal grandparents during school holidays changes the child’s circumstances in a manner which strikes the right balance between the child’s need for stability, routine and relationships.  This will mean that during school holidays unless the mother takes leave one day each week the child will be cared for by someone other than her or the paternal grandparents.  The maternal grandmother has also cared for the child and it is likely the mother will call on her for childcare.  Because the mother and child will soon live independently of the maternal grandmother, this provides an ideal opportunity for the mother to maintain what I infer is also a mutually affectionate relationship between the child and her maternal grandmother. 

1. I have some sympathy for the paternal grandparents’ request that the mother collects the child on Sunday evenings.  Theirs is an undoubtedly heavy load and, in many circumstances, a request such as this would succeed.  There are two reasons why, at this time, I do not consider such an order to be in the child’s best interests.  Firstly, the child is now at school and needs to be home in sufficient time to settle before bed.  To add additional travel time so that she arrives home even later than 7.00 pm is too late on a night before school.  Secondly, with an AVO in place and a breach of AVO under consideration, contact between the parents should be avoided.  While the paternal grandparents could be relied upon to do their best to ensure the father did not approach the mother if she came to their home to collect the child, I am not confident, if he was enraged, they could stop him.

2. The parties agree the child should continue regular telephone contact with the father.  Different orders were presented the rational for which was not explained.  As I understand it, the current breach of AVO proceedings relate to difficulties which arose about telephone contact.  Subject only to the time bandwidth it seems that the mother’s proposed orders would minimise the risk of further litigation and as far as maintaining regular telephone contact.  Two hours, as proposed by her, potentially has the father waiting too long for a call and perhaps missing out.  His one hour time frame is more reasonable.  However, the wording used in the mother’s proposed orders introduces an appropriate degree of flexibility required to allow for day to day commitments.  My point being, the father will need to accept that there may be occasions when the mother or child’s commitments make telephone contact impractical.  It is my expectation that the mother inform the father or his parents if she is aware the child will be unable to place the call. 

3. The father applied for orders in relation to the mother’s brothers with whom she lives and will maintain regular contact.  Counsel for the father agreed the evidentiary foundation for the proposed restraints is lacking.  As I understand it, the proposed orders reflected the father’s desire, albeit he was aware the Court was unlikely to make them.  I agree there is a paucity of evidence to support the proposed injunctions and they will not be made.

4. For these reasons I am satisfied the parenting orders I will make are in the child’s best interests.

Financial applications

1. I turn now to the mother’s financial applications.  In short she seeks the payment of $200,000.00 variously described as interim or partial property settlement, lump sum costs and lump sum spouse maintenance.  She abandoned her application for periodic spouse maintenance and her claim for child support was settled prior to the commencement of this hearing.  During opening remarks counsel for the mother agreed she could not expect the Court to make orders predicated upon her being obliged to pay the entirety of her legal fees in advance.  Ultimately I understood that the mother presently sought $100,000.00 whether it be described as interim property, interim costs or a combination of the two.  As I mentioned earlier the NSW Trustee eventually agreed the mother should receive about $47,000.00 which it was submitted should be characterised by the trial judge.  The $47,000.00 constituted $12,305.77 to pay out a joint credit card debt incurred by the parents prior to separation, $20,000.00 towards legal costs, $12,200.00 towards rental expenses and $200.00 towards removalist expenses.  There was also discussion about whether the court would make what is often referred to as a “dollar for dollar” interim costs order in relation to which there was little support from the father or the NSW Trustee.

2. Thus the issue is whether the mother should have the larger sum sought by her.  This would enable her to discharge a greater proportion of her outstanding legal expenses and fund this increasingly complex litigation as well as sustain her pending further hearing.

3. Disclosure orders are also sought by the mother which curiously are resisted by the NSW Trustee. 

4. Loughnan J in Felice & Felice [2011] FamCA 162 at par 9 helpfully summarised the current law in relation to interim costs and interim property settlement. I agree with his Honour’s statement of the applicable law.

5. The mother financial circumstances are set out in her financial statement.  The father’s financial circumstances are set out in affidavits from Mr D of the NSW Trustee.  Although the NSW Trustee had notice from the mother’s lawyers about her property settlement claim, on 1 December 2010, $1,542,000.00 was allocated by them to a superannuation fund for the father.  While this was advantageous to the father in relation to penalty tax rates, it reduced the funds immediately available to him or for immediate distribution to the mother.  There remains $1,130,000.00 in an Australian cash fund and approximately $682,000.00 in a current account.  It is anticipated this will provide the father with approximately $1,400.00 per week gross.  There remains outstanding a claim by the paternal grandparents for approximately $600,000.00 in carers expenses.  It is submitted by counsel for the NSW Trustee that a cautious approach to the father’s income is appropriate because the father is unlikely to work again and must live on the balance of his compensation verdict.  When tax, which is estimated at approximately $300.00 per week and his child support liability of $270.00 are taken into account, it is submitted he is unlikely to be able to meet his necessary expenses from income and thus any of capital payment greater than the nominated amount in favour of the mother is contraindicated.

6. The mother’s most valuable asset is her 25 per cent interest in a unit at Suburb E.  This property is rented from which the mother receives approximately $75.00 per week.  The mother’s brother and her mother own the other shares in the property.  The evidence does not indicate that the mother would easily be able to realise her interest in the Suburb E unit or borrow against it in the short term.

7. Including her salary, family tax benefit, child support, rent and rental assistance, the mother’s total weekly income is $1066.  She pays $79.00 per week tax and $150.00 per week board.  With no assistance from the father she has paid approximately $94.00 per week in discharge of their joint credit card liabilities.  This amount will be paid out from funds advanced by the NSW Trustee.  Once the mother moves into her own rented accommodation, she will no longer need to pay approximately $86.00 per week storage.  However, her rental will exceed the amount she presently pays for board and storage, in addition to which she will need to meet costs such as electricity.  I accept that if she is to live independently her necessary expenses will exceed her income.

8. It may be that child support will result in a reduction in her family tax payment.  Even if this did not happen, the mother’s financial circumstances are tenuous and she has virtually no capacity to meet her outstanding legal fees or establish her and the child in their own accommodation.

9. At Part 5 of counsel for the mother’s Case Outline document, there is a summary of her evidence in relation to her contributions and a précis of s 75(2) factors.  Although aspects of the mother’s claims are controversial there seems to be no significant argument against her claim that the parties cohabited for about five or more years, she was predominantly the sole wage earner and contributed her earnings for the benefit of the family, she provided domestic assistance during and following the father’s recovery, acted as his Tutor in the District Court compensation proceedings, was involved in the child’s care and as a homemaker and, since separation, has been overwhelmingly responsible for the child’s physical and financial support.  More contentious issues relate to the extent of her contribution to a portion of the father’s compensation claim and what might be termed a Kennon & Kennon (1997) FLC 92-757 argument. The mother’s claim that there should be an adjustment pursuant to s 75(2) in her favour as a consequence of child care responsibility at least, does not warrant dismissal out of hand.

10. These are significant matters which, notwithstanding the contributions made by or on the father’s behalf, his claim that the child should live with him and the effect of his disability, satisfies me that payment to the mother of an amount of $100,000.00 now is unlikely to exhaust her property settlement entitlement.

11. An order for interim costs in the mother’s favour in the amount of $60,000.00 is less than she has incurred.  I note the NSW Trustee and the father have incurred greater costs, with the NSW Trustee even willing to fund the father’s application to change interim parenting orders recently made.  To leave the mother without that amount would further exacerbate the dichotomy between the father’s greater financial strength and capacity to meet his litigation expenses and her relative incapacity.  A further $40,000.00 is appropriate by way of interim property order.  In this regard, the Court has a wide discretion in relation to which it is unnecessary to require the mother to disclose compelling circumstances. 

12. Even if the mother ultimately receives less than $100,000.00 by way of adjustment her interest in Suburb E and her modest superannuation entitlement are available to rectify any maladjustment.

13. I decided against a “dollar for dollar” order.  The parties will participate in a Conciliation Conference and it is my expectation the mother and the NSW Trustee will adopt a more realistic approach to the property settlement proceedings.  If, they do not, and significant costs continue to be incurred, it may be necessary for the Court to give further consideration to the mother’s need for an additional interim costs payment.

14. The mother sought an undertaking from the NSW Trustee which would ensure that they kept her informed about any plan to distribute or deal with the father’s funds to an amount below $1 million without first giving her 21 days notice in writing.  The mother’s point being, she would have sufficient time to seek an asset preservation order.  The mother’s request does no more than require notice which, if complied with by the NSW Trustee would not deprive them of the ability to manage the father’s funds as they consider appropriate. 

15. The NSW Trustee was asked on 10 November 2010 to provide an undertaking to the mother “that other than reasonable living expenses, no capital or other payments will be made from the funds held by the NSW Trustee, pending finalisation of the matter …”  The undertaking was not given and $1.5 million (approx) was diverted into superannuation.  In the circumstances, I am satisfied it is necessary and appropriate for an order to be made as sought by the mother.

Other Matters

1. During the hearing I questioned whether the father has the capacity to conduct the parenting proceedings.  It will be recalled, his financial affairs are managed by the NSW Trustee who appear as his Case Guardian in the financial proceedings.  It is common ground he lacked the capacity to conduct his compensation claim, in relation to which the mother was his Tutor.  I have already commented about his decision to apply for a variation to the interim consent orders only a few weeks after they were made.  Also, the surprising volume of correspondence which was sent on his instructions in relation to additional time with the child in December 2010, his response in March 2011 when the child was ill and the ill considered application for orders in relation to the mother’s brothers.  His approach to these matters raised questions about his judgment and capacity. 

2. As was said earlier, the father has been diagnosed as suffering from a personality change secondary to traumatic brain injury with aggressive traits and a cognitive disorder secondary to a head injury. While it is theoretically possible that a person may have the capacity to conduct one component of proceedings under the Act but not another, careful consideration of the nature of that person’s disability is required before such an approach could be endorsed.

3. The definition of a person with a disability is found in the Family Law Rules 2004 dictionary. It is set out below:

   A person who, because of a physical or mental disability:

   (a)does not understand the nature or possible consequences of the case; or

   (b)is not capable of adequately conducting, or giving adequate instructions, for the conduct of the case.

4. Before the father takes another step in the parenting proceedings, he must satisfy the Court that none of the limitations referred to in the definition applies to him.  There is an array of medical and allied health professionals who have worked with him following his motor vehicle accident.  I infer that with relative ease and probably modest cost, the father will be able to obtain an expert opinion about his capacity to continue to conduct the parenting proceedings.

1. For these reasons I make the orders identified at the start of this judgment. 

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 June 2011.

Associate: 

Date:              23 June 2011