Hall and Hall

[2016] FamCA 164

FAMILY COURT OF AUSTRALIA

HALL & HALL [2016] FamCA 164

FAMILY LAW – CHILDREN – interim orders –where the father seeks orders for the children to spend time with him each weekend without supervision – where the orders are opposed by the mother and the Independent Children’s Lawyer – where the mother seeks a family report before commencement of the reunification process – where there is an intervention order naming the mother but not the children as protected persons – where orders are made for a further report and no time with the father – where orders are made permitting the mother to travel interstate.

FAMILY LAW – PROPERTY – where the wife seeks orders restraining the husband from taking any further action in the Supreme Court of South Australia relating to a caveat on the former matrimonial home – where the Court refuses to grant the injunction sought – where the wife seeks an order for a variation of the orders restraining the husband from refinancing the property – where there is an issue of cross-linked security – where the husband is permitted to refinance the level of borrowings secured against the property but not in excess of $1.5 million – where the question of the parties costs is reserved to the trial judge.

FAMILY LAW – PRACTICE AND PROCEUDRE – bifurcation – where the Court does not consider it appropriate for the matter to be bifurcated. 

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of Sa

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 10 March 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livesey QC

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of Sa

Orders

1. Paragraph 4 of the order of 17 November 2014 is continued (being until further order the husband’s time with the children K born … 2003 and D born … 2005 (“the children”) is suspended.)

2. The children and the husband and wife attend upon Dr A for the purposes of a review assessment, specifically directed to advising the Court whether the husband and the children are yet ready to engage in a reunification process, as well as the steps (if any) necessary to enable that process to commence and what type of reunification should take place.

3. The husband and wife are restrained and an injunction is granted restraining them from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.

4. It is requested that the Australian Federal Police give effect to the Order by placing the names of the male children K born … 2003 and D born … 2005 on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia maintained by the Australian Federal Police and that the Australian Federal Police be directed to place the said children on the Watch List for a period of two [2] years.

5. Paragraph 4 of the orders made on 23 October 2013 (so far as it relates to the wife) is discharged.

6. At least seven [7] days prior to the wife travelling interstate with the children at any time the wife shall provide to the Independent Children’s Lawyer in writing full particulars of the proposed interstate visit including the method of travel, the places to be visited and the time of return to South Australia not to exceed two [2] weeks in any period of absence UPON NOTING the Independent Children’s Lawyer is not required to disclose that information to the father or any other persons SAVE AND EXCEPT by order of the Court or after the expiration of two [2] weeks after the departure of the children from the state of South Australia.

7. Paragraph 8.3.2 of the orders made on 23 October 2013 (and continued on 10 December 2013) is discharged.

8. The husband (whether in his personal capacity or in his capacity as a director or shareholder of PP Pty Ltd) is restrained and an injunction is granted restraining the husband from disposing of, encumbering or otherwise dealing with the former matrimonial home SAVE AND EXCEPT that with respect to any refinance of the borrowings currently held with the Commonwealth Bank of Australia the husband shall be permitted to refinance such borrowings PROVIDED HOWEVER that:

   8.1.the level of borrowings secured against the former matrimonial home does not exceed the sum of $1.5 million; and

   8.2.the former matrimonial home shall not be offered as “cross linked security” for any borrowings of the husband or any entity or trust in which the husband has an interest or control.

9. The husband is restrained and an injunction is granted restraining the husband from taking any action to pursue the removal of Caveat No. … lodged in the Lands Titles Registration Office in respect of the property situate at II Street, Suburb L, being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio ...

10. The application to list separate trials for the children and financial issues is dismissed.

11. The husband’s Application in a Case filed on 6 January 2016 is dismissed.

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

FILE NUMBER:

Ms Hall
Applicant

And

Mr Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Firstly, I understand there is no objection to the continuation of the orders in relation to having the children’s names placed on the Airport Watch List. 

2. The husband and wife are restrained, and an injunction is granted restraining them from removing and/or causing or allowing the children K, born in 2003 and D, born in 2005 on the Airport Watch List, in force at all points of arrival and departure in the Commonwealth of Australia, maintained by the Australian Federal Police, and that the Australian Federal Police be directed to place the children on the watch list for a period of two years.

3. The orders for children’s issues that are sought today are not set out in the material that has been filed in the Court.  The Application in the Case filed by the father on 6 January 2016 seeks orders discharging the orders which I made at paragraph 4 of 17 November 2014.  That would bring about the return of the orders which were then in existence, which, I understand, is not in fact what the father is seeking today.

4. Paragraph 2 is that the infant children, K and D, spend time with their father as may be ordered by the Court.  Paragraph 3 “that the claims of the parties for final parenting orders be heard and determined separately from all other applications for final orders and be listed for a trial as a matter of urgency, and such further other order as the Court deems fit”.

5. In the affidavit filed by the father before the Court, he has recently withdrawn the application to split the trials in relation to children’s matters and does not seek the orders contained in paragraph 3.

6. As far as paragraphs 1 and 2 are concerned, the Court was informed from the bar table this morning that the actual order that the father is now seeking is that the children spend time with him each Saturday or each Sunday from 10.00 am to 5.00 pm, commencing immediately and without any supervision.  Those orders were opposed by the wife and the Independent Children’s Lawyer. 

7. The orders that the mother seeks in relation to the children were that the father’s application be dismissed and that the children and the parties attend upon Dr A for the purpose of a review assessment specifically directed to advising the Court whether the husband and the children are yet ready to engage in a reunification process, as well as the steps, if any, necessary to enable that process to commence. 

8. I have dealt with the Airport Watch List orders.  It is also sought that the order preventing the parties from removing the children from the state of South Australia be varied so that it applies only to the husband and not to the wife.  There is then reference to the procedural orders.

9. The authority of Goode & Goode (2006) FLC 93-286 makes clear that the Court is required to give consideration to all of the factors in section 60CC, even on an interim basis, when a large number of matters concerning the factors which have to be decided have not been determined on the evidence. The primary factors, however, are quite clearly that the Court must give consideration to the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect the children from harm which includes physical and psychological mental harm.

10. The previous proceedings and my previous reasons for judgment have set out the background to the matter.  I consider them to be incorporated in these reasons.  In particular, the concerns of the mother and some of the expert opinions referred to, where the children have been at risk of harm, at least in relation to psychological harm, due to the behaviour, as alleged, of the father. 

11. The Court now has before it a large affidavit to which was annexed the reasons provided by the judicial officer who heard the intervention proceedings.  The determinations there continued the orders protecting the mother, but found that it was not necessary to continue the orders protecting the children because of the involvement of the Family Court in determining what is in the children’s best interests. 

12. Again, that is a very lengthy judgment.  I simply note that I have considered the findings of the judicial officer in those proceedings and take them into account, particularly so far as they relate to the possibility of the children having been exposed to the violent behaviour of the father over a considerable period of time.

13. I also take into account the reports that are on file from the assistance given by Ms KK to the husband and the reports available to the Court by Mr CB who has been involved in the assessment of the children. 

14. I consider that at this stage it is not in the best interests of the children to order that the time take place unsupervised for an extended period of time, which the father is seeking, because of the possibility of the risk of emotional harm to the children, if they are, indeed, not yet in a position where the resumption of such time with their father would not cause them at least some concern, and the impact that that order might have upon their primary carer, the mother, which in itself might filter down to having an impact upon the children. 

15. I therefore consider that the orders which were sought by the mother, and supported by the Independent Children’s Lawyer, for there to be a further report available so that the Court has evidence before it which would directly relate to the children’s current position, would be more appropriate.  It is reassuring that the reports from Mr CB and the children’s school indicate that they are progressing well at this time. 

16. However, what is not made clear is whether they are progressing well because they are not having time with their father, or they are simply progressing well because they have recovered from any difficulties which might have existed as a result of the breakdown in the relationship between their parents and the activities which have occurred in their presence since that breakdown.

17. I therefore propose to order that the orders that the father not spend time with the children continue.  The order will be that the children and the parties, the mother and father, attend upon Dr A for the purposes of a review assessment specifically directed to advising the Court whether the husband and the children are yet ready to engage in a reunification process; and if so, what steps, if any, are necessary to enable that process to commence and what type of reunification should take place.  By that, I mean whether it should be unsupervised time, whether it should be for a short period on a regular basis, or whether it should immediately resume for a daytime basis, as the father is seeking.

18. In relation to the orders that the mother seeks that she be able to take the children interstate, the father opposes that unless he is provided with detailed information as sought in the affidavit which he has filed in response.  The mother objects to providing that information on the basis that she claims that that would put the empty property at E Street at risk.  I am not able to make any such determination of that concern or allegation, but the protection that the father seeks could be provided by the mother giving details to the Independent Children’s Lawyer, which would enable that information to be released upon further Court order, if necessary, and that information could be provided to the father upon the return of the children to their home in South Australia.

19. I therefore discharge paragraph 4 of the order of 23 October 2013 as far as it relates to the wife.  I further order that, prior to the mother travelling interstate with the children at any time, at least seven days prior to the mother travelling interstate with the children at any time, should provide the Independent Children’s Lawyer with full particulars of the method of travel and the places to be visited and the intended time of return;  that the mother be permitted to know that such period not exceed two weeks;  the Independent Children’s Lawyer is not required to disclose that information to the father or any other persons, save and except by order of the Court, during that period of two weeks.

20. In relation to the financial matters, the orders which the wife was seeking in relation to the urgent orders were related to the proceedings concerning the caveat which had taken place in the Supreme Court of South Australia in which the husband, presumably in his role as the sole director of PP Proprietary Limited, is taking to remove the caveat placed by the wife over the property, E Street at which she has been residing with the children for some time.  The order seeks to restrain the husband from taking any further action in those proceedings, and that would leave the wife’s application to continue the caveat unrestricted. 

21. The proceedings in the Supreme Court have been adjourned until a period early next week, and that is the basis upon which the urgent application is made.  The application by the wife also seeks a variation of the orders restraining the husband from dealing with the property, to allow him to refinance the property to the extent of $1.5 million provided that there is no cross-linked security.  I understand it is the husband’s case that the E Street property has not been the subject of the cross-linked security, but that the security over the property is increasing from $1.2 million to $2.6 million at the summary of the figures.  It is a substantial increase of the security taken over the property.

22. There is already in existence an order restraining the husband from disposing of, encumbering or otherwise dealing with the former matrimonial home.  The Court has heard submissions which appear on the face of it to suggest that the document which was provided by the husband’s solicitors to the wife’s solicitors and which is annexed to the wife’s solicitor’s affidavit filed on 9 March 2016, clearly suggested in various portions of that document that the loan agreement which has been signed by the husband included the property at E Street as part of the overall facility and, in particular, Part 4 headed “Security”:

    Each of the following Security secures (without limitation) all amounts payable under all Facilities, or any Merchant Facilities, any Uncommitted Market Facilities and any guarantee or indemnity provided by an Obligor to ANZ:

    (a)          the Securities listed in Schedule 1;  and

    (b)          any additional Securities provided by an Obligor

    except to the      extent that any Security or Facility schedule expressly provides otherwise.

23. No-one on behalf of the husband has drawn my attention to anything in the documents which would provide some exception of the property owned by PP Proprietary Limited, being referred to in item 3 on page 31 of the 67 pages in this affidavit, which refers to the property at E Street, Suburb F, and the information also provided in pages 19 of 67.  I therefore, think it is appropriate for the injunction to be granted restraining the husband in terms of paragraph 3.  If paragraph 3 were granted it would give the husband facility to refinance, but the caveat of the wife would therefore have to be discharged to enable the refinance to take place to that extent over the property.

24. I therefore do not propose to grant the injunction sought in relation to the caveat proceedings.  If the parties wish to continue in the Supreme Court with their caveat arguments, notwithstanding the fact that the question in relation to the parties’ interests in property and the entitlements to property have been listed for hearing before this Court, then so be it.  I therefore, do not intend to make paragraph 1 of the urgent orders sought, but I will make the orders in terms of paragraph 3.  That therefore requires the discharge of paragraph 8.3.2 of the order of 23 October 2013 continued.

25. I make an order that paragraph 8.3.2 of the orders made on 23 October 2013 and continued on 10 December 2013 is discharged.

26. I now further order that the husband be restrained whether in his personal capacity or in his capacity as a director shareholder of PP Proprietary Limited from disposing of, encumbering or otherwise dealing with the former matrimonial home, save and except that with respect to any refinance of the borrowings currently held with the Commonwealth Bank of Australia the husband shall be permitted to refinance such borrowings provided that paragraph 3.1, the level of borrowings secured against the former matrimonial home does not exceed $1.5 million.  Paragraph 3.2, “the former matrimonial home shall not be offered as cross-linked security for any borrowings of the husband or any entity or trust in which the husband has an interest or controls”.

27. I will have it noted that without explanation the husband has left the courtroom while I am making orders.

28. In relation to the II Street property, the injunction is sought that the husband be granted restraining him from taking proceedings to remove the caveat.  As I have already indicated, the issue of the parties’ entitlements to the various properties and what proper orders should be made by way of property settlement are before this Court.  It would assist the parties and this Court if there were a limited number of other proceedings taken in other Courts.  If it is appropriate for there to be a discharge of the caveat or variation of arrangements made in relation to those properties, those applications can be made if there is an appropriate basis to this Court.

29. I will, therefore, order that an injunction is granted restraining the husband from taking an action to pursue the removal of the caveat lodged in the Lands Titles Office in respect to the property at II Street, Suburb L, being the whole of the land comprised in Certificate of Title Registered Volume …, Folio ….

30. The valuation orders that were sought in relation to the steps to be taken for the valuation of the various entities was opposed.  At this stage, because of the intricacies in the arguments, I will reserve my decision on that matter.

31. In the proceedings before me in relation to the financial matters I will have it noted that I consider that the husband has, to a certain extent, been unsuccessful in opposing the orders sought.  I have not yet determined the valuation issues, but in relation to the financial issues there still remains the question as to whether the husband’s assertion that the property at E Street is not covered by the cross-indexing of the other loans, I propose to reserve the question of the parties’ costs in relation to all of these interim applications to the trial judge.

1. In relation to bifurcating of the trials and the listing of the matter, I have indicated during the counsels’ submissions that I see no reason why this matter should jump the queue of other matters, both in relation to financial matters and children’s matters.  There are many other matters which are in the queue.  The matter has been referred to the list of matters awaiting an allocation of a trial date.  There is a variation in the time required of something between five and 17 days.  The husband is asserting that apparently it would take something between 10 to 17 days for the trial. 

2. At this stage, therefore, I do not consider it appropriate for the matter to be bifurcated so far as the children’s and financial matters are concerned.  That consideration may also be assisted by the report of Dr A, which has been ordered.  That, in itself, may assist the parties in coming to some reasonable resolution of the children’s proceedings in the hope that they will be able to consider what is in the best interests of their own children.  I therefore consider that the question of whether the hearing of the property settlement matters and children’s matters should be heard separately can await a later date when further information is known. 

3. In fact, it may be that if the appropriate steps are taken to prepare both matters for trial that they could be listed together.  But I will not make any ruling on that, at this stage.  I will dismiss the applications in relation to splitting the trial and note that that could be reconsidered when further information is available to the Court.  

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 March 2016.

Associate: 

Date:  21 March 2016