Grenfell and Grenfell

[2014] FamCA 206

FAMILY COURT OF AUSTRALIA

GRENFELL & GRENFELL [2014] FamCA 206

FAMILY LAW – CHILD SUPPORT – Interim Orders – application by mother for lump sum spousal maintenance – mother also sought the proceeds from the sale of the former matrimonial home be used as security for child support payments – father has signed Consent Orders providing for a direct debit arrangement for child support payments – father sought orders for wife to provide information under oath – proposed orders likely to lead to further litigation – interim orders sought by wife dismissed – orders sought by father in Response also dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Grenfell

RESPONDENT: Mr Grenfell

FILE NUMBER: ADC 1245 of 2010

DATE DELIVERED: 21 March 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Koufalas

SOLICITOR FOR THE APPLICANT: Duncan Basheer Hannon

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

BY CONSENT IT IS ORDERED THAT

1. The father do set up periodic payments via direct debit to the Child Support Agency to pay to the Child Support Agency his obligation to pay child support as it falls due in accordance with the Binding Child Support Agreement dated 23 April 2012.

2. The father do advise the mother at least seven [7] days prior to any international travel the following:

   (a)the date he is intending to leave the jurisdiction of the Commonwealth of Australia;

   (b)the date upon which he intends to return to the jurisdiction of the Commonwealth of Australia.

3. The mother’s Initiating Application filed on 21 February 2014 is transferred to the Federal Circuit Court at Adelaide on a date to be fixed by that Court for final hearing.

IT IS FURTHER ORDERED THAT

1. The mother’s interim orders sought in the Initiating Application filed on 25 February 2014 are dismissed.

2. The father’s Response to the Initiating Application on the interim issues filed on 19 March 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grenfell & Grenfell 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 ADELAIDE

FILE NUMBER: ADC 1245 of 2010

Ms Grenfell

Applicant

And

Mr Grenfell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the question of an interim order being made in relation to the proceeds of sale of the property at G Street, Suburb H, I have received the extensive affidavit material of both the mother and the father in this matter.  I have heard comment, not evidence, from the father at the Bar table, saying that he now only has $47,000 left from the proceeds of sale of the property.  The settlement statement indicates where some of the funds have been disbursed. 

2. There is now a Consent Order in place for the father to set up a periodic payment by way of direct debit in relation to the child support obligations.  I am not satisfied in relation to the orders sought that it is appropriate, nor just and equitable at an interim stage to make an order for a payment of lump sum by way of security for the protection of the obligations under the child support provisions that are payable by the father.

3. I note in making that decision that there have been occasions when the child support payments have fallen into arrears and have not been paid promptly, and the significant impact that would have upon the financial welfare of the mother and, indirectly, the children.  I do, however, also note that the father has signed a Consent Order providing for a direct debit. 

4. In relation to security to protect some of the funds should the father determine to leave the country and not return, I take into account the fact that such steps by him would make it extremely difficult for him to continue any meaningful relationship with two of the children whom he has recently been seeing regularly, and the eldest child who he sees much less.

5. I am satisfied, therefore, it is not appropriate to make an order in terms sought by the mother by way of interim order.  I dismiss the interim orders sought in the initiating application. 

6. I now turn to the interim orders sought by the father in the Response to the Initiating Application.  In relation to the paragraphs 1 and 2, by way of interim order, the father is seeking orders that the mother provide, “detailed information whom (sic) [J School] provided her with information regarding any personal details regarding any payments or other at said school as advised under oath”. 

7. Paragraph 2 seeks similar information from any emails from a list of entities and persons.  The material in relation to the affidavit of each of the parties sets out concerns about the payment of J School debts.  That issue has apparently now been resolved.  Similarly, in relation to the email correspondence and information provided by the mother, on the interim basis the mother’s affidavit is that she has not accessed emails. 

8. It is clear from the copious material provided by the parties that they are capable of finding information out about the other party from public sources such as Facebook. 

9. In relation to the ongoing difficulties between the parties and their capacity to carry out their duties as parents in an appropriate way, it would not encourage a cessation of argument but only encourage further argument if those orders were to be made.  The question remains whether such orders would be appropriate either on an interim basis or on a jurisdictional basis.  I therefore dismiss paragraphs 1 and 2 of the interim application. 

10. Paragraph 3 of the interim orders sought is that the mother, “Stop the protracted litigation about the property settlement financials”. 

11. The proceedings in relation to child support and security for the payment of the child support have been dealt with and it is not necessary therefore to make that order.  Therefore paragraph 3 is dismissed. 

12. Paragraph 4 says, “That the case for advanced moneys by the mother be dismissed”.  That has been done by interim order this morning. 

13. Paragraph 5 relates to, “That cost be paid by the mother for loss of sales of the [K Course] between … March 2014 and … March 2014, totalling $5400 and other costs associated with her application, including printing”.  The father, from the Bar table, tells the Court that he could have attended, or was planning to attend, a course which would have provided him with funds and because of these proceedings he has been unable to do so. 

14. That is not in the context of a costs order that would be made in this Court.  The Court does not have appropriate jurisdiction to make such an interim order.  That application is dismissed. 

15. Paragraph 6 is that “Ms [L] be appointed as a mediator to develop a parenting plan, paid for in full by the mother”.  The submissions of the father are that previously Ms L carried out mediation for the parties and that he paid for such mediation. 

16. It is clear that the mother is proceeding with her application for sole parental responsibility because the parties are unable to agree an issue about the authority to sign a passport application for the children five years from now. 

17. If the mother is proceeding with such an application then the Court should, and will make, appropriate arrangements for conciliation conferencing to take place.  The cost of Ms L carrying out mediation would have to be reconsidered at a later time.  If there is to be any change to the arrangements for the children then obviously the factors which need to be taken into account are what is in the best interests of the children.  The Court will no doubt take those matters into account and in particular, the need for the children, and the parent who has responsibility for their care, to know what arrangements are being made for the children to spend time with the father in advance, rather than leaving it on a step-by-step basis. 

18. Those comments will be taken into account when the matter, if necessary, has to be heard.  Therefore, the interim proceedings in the Response to the Initiating Application are all dismissed. 

19. That leaves the final orders application in relation to the question of sole parental responsibility connected to the children’s passports as the official matters before the Court.  They are to be referred to the Docket Registrar for allocation of directions when the matter reaches its appropriate place in the trial list. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 March 2014.

Associate: 

Date:  1 April 2014