Hampton and Hampton

[2007] FamCA 585

FAMILY COURT OF AUSTRALIA

HAMPTON & HAMPTON [2007] FamCA 585

FAMILY LAW - CHILDREN – Variation of orders - Live with – Spend time with
FAMILY LAW - COSTS – Interim costs
FAMILY LAW - INJUNCTION – Restraint re encumbering former matrimonial home

Family Law Act 1975 (Cth)

APPLICANT: MRS HAMPTON

RESPONDENT: MR HAMPTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 4740 of 2005

DATE DELIVERED: 30 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan, JR

HEARING DATE: 30 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Tyler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW of NSW

Orders

1. That until further order and unless the parties agree to the contrary in writing and by way of variation of the orders made on 2 March 2007 as varied on 14 March 2007 the children’s time with the wife be extended on the weekend containing the Queen’s Birthday Public Holiday to 12:00 noon on 11 June 2007.

1. That the said orders are further varied by providing that the children P born on … February 2001, M born on … June 2002 and A born on … September 2004 spend time with the wife each Wednesday in the terms proposed by the wife in paragraph (b)(i) and (ii) of her document “Proposals of the Applicant Wife” which is Exhibit 1 as set out hereunder:-

“(b)The children to spend time with the wife every Wednesday as follows:-

(i)A to be collected by the wife at 9.00 am at W Public School and to be returned by the wife at 6.00 pm that evening;

(ii)M and P to be collected by the wife from W Public School at the end of the school day and returned with A to the husband at his home at 6.00 pm.

1. That where time spent between the wife and the children is to commence or conclude at the start or conclusion of a school day then the place of hand-over is to be W Public School and for all other times the place of hand-over, unless the parties agree to the contrary in writing, is to be the R Police Station.

1. In relation to the restraint contained in order 20 of the orders of 2 March 2007 and continued until further order the Court notes that for the purpose of that order Ms H is not deemed to be a member of the wife’s family.

1. That within 7 days from today’s date the husband pay to the wife an amount of $20,000 by way of interim costs and the Court notes that the character of that payment is a matter for the trial judge in the context of the property proceedings between the parties.

1. That the husband is restrained until further order from encumbering the former matrimonial home at W without the wife’s written consent or further order except for the purposes of complying with the order 5 made today.

1. That the parties do all things and sign all documents necessary to give effect order 3 made on 14 March 2007 by facilitating the wife’s uplifting from … Storage Unit the items set out in Annexure B1 to the wife’s affidavit of 17 May 2007 and that she be restrained from removing any other items from that Storage and from disposing of any items removed by her from that storage without the prior written consent of the husband.

1. That leave is given to the parties to restore the matter to the list on giving 48 hours notice to the Court and to the other parties.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4740 of 2005

MRS HAMPTON

Applicant

And

MR HAMPTON

Respondent

REASONS FOR JUDGMENT

1. I will adjourn these proceedings to the judicial duty list at 9.30 am on 18 July 2007 before Judicial Registrar Johnston.  I will order that not later than 48 hours prior to the adjourned date the legal representatives for the parties provide copies of a case outline document including a list of the documents to be relied on.  The estimated hearing time is not more than two hours. I will note that the wife does not intend to press her application that the husband be dealt with for contravention of Court orders and by consent that application is to be adjourned to the first day of the less adversarial trial in these proceedings for mention only.

2. Otherwise these are proceedings in relation to three children and one child to be born in September 2007. I understand that separation occurred around the end of last year and that the children have substantially lived with the father since that time.  Some orders have been made in February and in March that have been honoured in the breach rather than the observance.

3. There remain issues between the parties in relation to a contravention proceeding, issues about the time the children would spend with each of the parents and the conditions for those arrangements.  There are issues about the use of personalty in the meantime.  There are property proceedings on foot and if only on an interlocutory basis, there is an issue of spousal maintenance. There is an application for interim costs.  Those matters have been addressed in the previous orders, to some extent at least, and the parties seek to agitate those matters again.

4. The matter comes before me today after the parties had struggled all day to try and reach some agreement. They were unable to reach an agreement and they remained apart, I think, on every substantive issue.  Some orders were proposed in those circumstances to take the matter through to the first day of the less adversarial trial, which the parties have been told may well be in September.  Unfortunately when I heard from the legal representatives at about 3.45 pm today, I was told that they each envisaged very different orders being in place between now and the start of the trial.  The wife, relying on a report by a Dr M who is the single expert in the proceedings, is seeking to remove aspects of the conditions of the existing orders, to extend the orders that have been made and, finally and importantly, to seek that they actually be complied with. The father is unmoved in relation to his objection to contact between the children and members of the wife’s extended family and seeks a continuation of the existing restrictions and opposed an extension of the time for the children with the wife because of concerns apparently in relation to the wife's capacity for care.

5. The wife seeks some further funds with which to litigate the matter.  The father says she has had enough funds and in circumstances whereby he contends that there are not assets of the marriage that moneys applied by the wife to legal costs will not be recoverable by him. He is also concerned, and there is something in this, that the orders for interim costs tend to prejudge the issue of costs in the final proceedings. Finally, the parties cannot agree about the interpretation of the order they agreed to earlier about personal items being removed from storage.

6. Dr M says things are not as bad as they look.  Dr M recites the concerns that each of the parties has identified and he observes some very nice things about the presentation of the parents with the children. He observes an appropriate relationship between the children and each of the parents, although noting that each of the parents told him that they had a psychiatric history, in the husband's case dating back into the 1970s.  Dr M did not recommend, subject to anything that the Court might find, that there be any significant impediment placed in the way of the children spending the proper amount of time with each of the parents.  Dr M observes that the parties' concerns are not as bad as they express because - in the husband's case, the husband expectation that the marriage might survive, that there might be a reconciliation and then presumably in the context of that, unstructured and unsupervised time between the wife and the children; and in the wife's case, although not seeking to reconcile, her wanting there to be and realising the value and the importance of the relationship between the children and their father.  Dr M made some assessments about the parties and gave an opinion in relation to their health and any psychological or psychiatric conditions they might have. He referred to the impact on the wife of some things that have happened sometime in the past and to the husband exaggerating his concerns. Dr M acknowledged that there have been some problems and that resulted in his cautionary observations. He noted in the father's case, personality traits which he does not say would disqualify the father from having a role in parenting. He referred to a rather obsessive focus on detail and regimentation and some other behaviours.

7. I am not able to deal with the matter today.  I am told that there are hours of reading involved and I was told that there were subpoenaed records, including records from a school, that are not available. However, I cannot just ignore the parties' concerns.  I cannot just adopt the opinion of Dr M for the reasons that I gave earlier in the day. One option is to make orders along the lines of the lowest common denominator that would last through until the trial. 

8. The ball is very much in the father's court about the approach to be taken. The funding of this litigation, in the first instance at least, falls to him. It is very clear from instructions he has given that he thinks a further interim hearing is needed. I understand that the parties have agreed on 18 July as being a date convenient to everybody and I have put the matter over to that date before my colleague and made directions about some documents.

9. As to the remaining matters, the issues that I think can safely be dealt with without any major intervention or major examination of the evidence - there is a controversy about whether the children spend Wednesday evenings with the wife.  There is an issue about whether the handover place be the school or a police station.  There is an issue about the extent to which there be a restriction on the wife allowing the children to be with members of the wife's extended family. On the latter issue, the essence of the wife's case is that to some extent she needs the support of her family.  One can understand in the circumstances why that would be. She says that she at least needs the assistance of a Ms H.  And there is an issue about the items of personalty in storage.  I am told the dispute there relates to a children's game table, a large TV and a large trunk and an exercise walking machine.

10. In relation to the Wednesday, no matter of principle has been identified that increases or reduces the risk that is identified by the husband in terms of time between the wife and the children. I note that on a previous occasion, I think 14 March 2007, he agreed to the wife having unsupervised time with the children on weekends.  In those circumstances it is not inappropriate to extend that time to a Wednesday.

11. In relation to Ms H, in circumstances where albeit that Dr M has not seen any members of the wife's family, there is nothing in the doctor's report that would suggest that the wife's judgment about these things has been impaired or causes danger.  The wife herself is going to be trusted with the children on an unsupervised basis.  I accept that the parties agreed on a previous date to a broader injunction and I similarly accept that there is a legitimate argument to be had about whether it was the shared intention of the parties to exclude blood relatives only by that injunction. In my view it is appropriate in these circumstances or not inappropriate in these circumstances that Ms H be allowed to assist the wife. Otherwise the injunction remains.

12. In relation to the personal items, the items are known and identified.  No harm will come by her having access to those additional items, which I understand are the items taken by the husband and referred to in annexure B1 to her affidavit of 17 May. I will restrain the wife from disposing of them.

13. In relation to interim costs, this is an issue the parties have already dealt with.  There has already been a payment. Therefore there is no objection in principle to the payment of interim costs. For the reasons that I identified earlier, it is important that the proceedings be conducted fairly. I do not suggest for a moment that the husband intended this, but it would be abhorrent to have the threat of proceedings being conducted by one party with the resources to properly remunerate lawyers and to restrict legal representation for the other party. 

14. I agree that the cases on interim costs such as Poletti and Zschokke do not fit the pattern of this case. I do not know that there is any complexity in the parties’ financial arrangements.  I do not know that there is voluminous material to deal with.  There is no suggestion that the wife's solicitors would leave her without representation for want of interim payment of their costs. In fact I understand quite to the contrary and that is to their credit. However, the fact is that the lawyers will ultimately be paid. Further, even if the husband is right and there are no assets, there is likely to be a long-term financial relationship between the parties, if only in relation to child support. The question of assets is confusing because I think the husband told Dr M something about generating multimillion dollars worth of income for a company. The doctor noted that there was something of a contrast between the husband's discussion about what had happened and his current financial circumstances.  Anyway, that will all come out in the wash no doubt.

15. The other issue is about the handover venue.  There is no harm done if the handover is at the school. I am told that it is not a case of fisticuffs or physical conflict between the parties at handover. As a general proposition handover at a school is a preferred arrangement.  There is usually a crowd there and provided the parents do not embarrass the children, that can work quite well.

I certify that the preceding thirteen (15) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  15 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HAMPTON & HAMPTON