Hall and Hall

[2013] FamCA 832

FAMILY COURT OF AUSTRALIA

HALL & HALL [2013] FamCA 832

FAMILY LAW – INJUNCTION – Where the mother seeks an interim order for sole use and occupancy of the former matrimonial home – where the father claims that his company, which owns the house, urgently needs to sell the property – orders for the mother to have sole use and occupancy of the former matrimonial home during the period of the adjournment.

Family Law Act 1975 (Cth) s 114

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taussig QC and Ms Kari

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richards and Mr Burrell

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. The children K (born … December 2003) and D (born … December 2005) live with the mother.

2. That during the period of the adjournment the father spend time with the children each alternate Sunday commencing on Sunday 3 November 2013 from 9am until 8pm provided that such time is supervised by either the father’s brother Mr B or the father’s brother’s partner Ms C and provided that the proposed supervisors file and serve affidavits of supervisors in the usual form by close of business on Tuesday 29 October 2013.

3. That, without admission, the parties are restrained and an injunction is granted restraining each of them from:-

   3.1assaulting, threatening or abusing each other or the children; and

   3.2denigrating each other to or in the presence of the children.

4. The parties are restrained and injunction is granted restraining each of them from removing the children form the State of South Australia and from the Commonwealth of Australia.

5. That the names of the said children be placed upon the Watch List 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 years.

6. That the father do forthwith deliver up to the Adelaide Registry of the Family Court of Australia the said children’s passports.

7. That the father ensure that he has with him at all times when he has the child D in his care an EpiPen within its use by date, with Zyrtec medication, anaphylaxis action plan, Ventolin puffer and spacer.

8. That during the period of the adjournment:

   8.1 The mother do have the sole use and occupation of the former matrimonial home at E Street, Suburb F in the State of South Australia (“the former matrimonial home”) AND that the father continue to pay all outgoings in relation to the same including but not limited to any mortgage payments, rates, taxes and utilities.

   8.2That on or before close of business on Friday 25 October 2013 the father do deliver up to the offices of BBS Lawyers the new keys, garage remote control and new alarm code numbers for the former matrimonial home.

   8.3 The father is restrained and an injunction is granted restraining the father from:-

   8.3.1Attending at, or in the vicinity of, the former matrimonial home save and except for the collection and return of the said children pursuant to these orders;

   8.3.2Disposing of, encumbering or dealing with the former matrimonial home;

   8.3.3Disposing of or dealing with any asset, save and except in the usual course of business, without first notifying the mother in writing and providing her with no less than fourteen days’ notice.

9. The mother file and serve her financial statement and any other documents upon which she intends to rely within fourteen days from today.

10. The father to file and serve his financial statement and any other documents upon which he intends to rely within twenty eight days from today.

11. That the parties do all such acts and things as are necessary to jointly instruct either Ms G or Mr H or, if neither of those are available, such other psychologist as agreed, to conduct a Family Assessment and Report with the father to pay the costs of the same in the first instance and the mother’s contribution to the same to be determined at trial.

12. That the proceedings otherwise be adjourned to 9 December 2013 at 9:15am before the Honourable Justice Dawe.

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 ADELAIDE

FILE NUMBER: ADC 3671 of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which commenced with the filing of an Initiating Application by the mother on 2 October 2013.  (It would appear that it was filed on that date, but may not have been released until the Client Services Officer endorsement of the time for the hearing, which may have been on 4 October 2013).  In that Initiating Application the mother sought certain final orders, and in relation to the interim or procedural orders sought included a paragraph (1):

   Until further order, the children live with the [mother].

   and, in paragraph (2):

   That the children spend time with the [father] each alternate weekend from the cessation of school on Friday, to commencement of school on Monday morning, or 3.30 Friday and 9 am Monday in the event that those days were not school days, and at such other times during the week as may be agreed.

2. It then contained certain orders sought, including orders for time on special occasions as may be agreed, and injunctions restraining the father from assaulting, threatening, abusing the mother, or denigrating the mother.  I have summarised those rather than read them out fully.

3. Paragraph (3) was that:

   Until further order, the [mother] to have the sole use and occupation of the home at [E Street, Suburb F].

4. The subsequent orders sought included restraining the father from being in the vicinity of the former matrimonial home at Suburb F, and restraining the father from removing the children from the State of South Australia or the Commonwealth of Australia, watch list orders and delivery up of the passports. 

5. That application was accompanied by a detailed affidavit of the mother, filed on 2 October, setting out various factual matters asserted as to the basis upon which she was seeking the orders in relation to the use and occupation of the former matrimonial home, the injunctions, and orders in relation to the children.  There were also allegations that the mother made in relation to the father’s violent and controlling behaviour towards her.  The affidavit of the brother of the mother was filed on 17 October 2013.  In that affidavit there is support for the mother’s allegations concerning the domestic violence behaviour of the father and, at times, in the presence of the children.

6. It appears from the affidavit of the father, which was e-filed on 21 October 2013 that the father was not served with the proceedings until 18 October 2013.  In that affidavit the father asserts that he is answering the matters promptly in order to have some material before the Court, but seeks to file further material at a later time.  That affidavit does not respond in detail to the allegations made in the affidavit of the mother and the affidavit of her brother concerning domestic violence behaviour.  The explanation I have received for that is that at the time of swearing that affidavit the father was of the view that the mother was proposing that he have alternate weekends unsupervised with the children in any event.

7. In that affidavit the father sets out the orders that he was proposing be made on an interim basis, including indicating his consent to some of the orders sought, but seeking to have orders that the children spend alternate weekends and Wednesday and Thursday evenings of the alternate weeks with him. 

8. The father purports to answer the application by the mother for sole use and occupation of the Suburb F property by providing the Court with information concerning other properties owned by the parties, which he says provide the mother with other options.  In paragraph 16 of the affidavit of the father he refers to other obvious “options” immediately available to the mother, including that she continue to live with her mother in the premises which she is currently occupying, or live with her brother, or move into one of the properties owned jointly by the parties in I Street.

9. In the affidavit filed by the father, he refers in paragraph 13 to:

   The company needs to urgently sell the property at [E Street, Suburb F].

10. He then refers to the property being worth somewhere between $2.6 and $2.7 million, and being mortgaged to the Commonwealth Bank for $2.75 million. 

11. The material before the Court this morning now includes the Amended Initiating Application of the mother and further affidavit of the mother and the Response of the father. 

12. The Amended Initiating Application of the mother received today seeks significantly different interim orders in relation to the children.  In particular, it proposes that the father spend time with the children each Sunday from 9.00 am to 5.00 pm on the basis that such time is supervised by an appropriate and suitable supervisor to be agreed, or as may be ordered.  In the minutes which were provided to Court this morning, it is proposed that the supervisor be someone from J Supervisors, the cost of which would be borne by the father.

13. The affidavit material filed by the mother, and provided this morning, refers to serious allegations concerning the father’s capacity to care for the children.  The mother asserts there are risks to the children, both physically, emotionally and psychologically, should they spend time with the father unsupervised.  The recent material also deals with further issues in relation to the E Street, Suburb F property.  This includes information concerning the property being placed on the market by the father in early October 2013. 

14. From the information now provided to the Court it is now asserted that that property is registered in the name of the company of which the father is the sole director and sole shareholder.  Therefore, it is not an asset of the father, but the former matrimonial home at Suburb F is clearly an asset under the father’s sole control and can, for the purposes of these interim orders, be treated as if it were an asset of the father. 

15. The specific difficulties in relation to this matter are that it is an interim hearing with significant differences in the factual material upon which the Court can rely.  As is clear from the authorities of Goode & Goode (2006) FLC 93-286 and those matters following it, the Court must endeavour to make a decision based upon the facts which can be accepted as agreed facts, or the facts which can be ascertained from the affidavit material as being those which should be taken into account concerning the best interests of the children.

16. The Court is required to make an order in relation to who cares for the children and who spends time with the children, bearing in mind that the best interests of the children are the paramount consideration. 

17. There appears on the current documents to be no clear explanation for the change in attitude of the mother, save and except the second affidavit refers to material which she now considers relevant to determining the issues in relation to the welfare of the children.  They raise significant issues in relation to what is in the best interests of the children particularly bearing in mind the need to protect the children from any harm.  There is, however, the need to weigh up the fact that the mother, when filing her original affidavit material, referred to some significant issues concerning the alleged behaviour of the father, and the supporting affidavit of the mother’s brother refers to that, and also refers to the children’s involvement with the observations of that behaviour.

18. These are matters which will all need to be determined when the evidence is appropriately tested.  However, the Court has to take into account the need to ensure that the children are protected from harm, but, where appropriate, are also given the benefit of maintaining a meaningful relationship with both parents. 

19. The father has, through counsel, denied that there is any risk to the children, and with that denial has, however, offered the possibility of his brother and his brother’s partner supervising time that he could spend with the children during the period of the adjournment. 

20. Taking that matter into account, and taking into account the significant need to protect the children from harm, be that psychological or emotional harm or physical harm, the Court therefore will err on the side of caution and take into account the balancing factors proposed to consider that it is in the best interest of the children, during the period of the adjournment (which is a short period till 9 December this year) to order that the father spend time with the children each alternate Sunday, commencing on Sunday, 3 November from 9.00 am until 8.00  pm, provided such time is supervised by either his brother Mr B or his brother’s partner Ms C.

21. It is also provided that those supervisors file and serve the usual affidavits of supervisors, acknowledging their role, by the close of business on Tuesday, 29 October 2013. 

22. This arrangement will enable the children to maintain a relationship with the father and, at the same time, provide protection for the children, and some assurance to the mother that the children can be protected during those periods of time.

23. The question of the use and occupation of the former matrimonial home is a separate issue arising under the Court’s capacity to make injunctions under section 114. The property is empty. The father has now placed the property on the market for sale. This indicates that he did not require the property himself. The affidavit material clearly indicates the father has the use of the Suburb L property, a substantial property. The mother currently has made arrangements to reside with the children at her mother’s home.

24. I accept that there are other properties on the face of it and other places which are available to the mother but some of those arrangements do not provide the mother and children with their own accommodation or separate accommodation.   I accept that the mother has temporary accommodation available.  It is still necessary for me to consider what is proper on an interim basis taking into account that the property was until the party’s recent separation used on a regular basis as one of the matrimonial homes for the family.  I take into account not necessarily just the financial circumstances but the benefit to the children, in particular, of returning to a home known to them. 

25. I consider that on an interim basis and during the period of the adjournment, the mother should have the option to return with the children to reside at the former matrimonial home at Suburb F.  I say that on the clear understanding that this order is an order being made during the period of the adjournment.  The mother needs to consider the possibility that that order may not be continued should the Court have available to it other information on the adjourned date indicating that a continuation of that order may not be proper.

26. I have taken into account the material that is currently on file in relation to the parties’ financial circumstances and the difficulty is that those matters are, again, the subject of considerable dispute.  It was said from the bar table that the father does not accept the limit to the mother’s financial circumstances as is maintained or implied from the affidavit material filed on behalf of the mother.  However, taking into account the issues which will be further determined on the adjourned date and the need to maintain the property pending the adjourned date, I consider it also proper to make an order that the property is maintained financially by the mother.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 October 2013.

Associate: 

Date:  29 October 2013