Hill and Hill

[2014] FCCA 1579

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILL & HILL [2014] FCCA 1579

Catchwords:
FAMILY LAW – Parenting – Interim Orders – parental responsibility – sole parental responsibility – best interests of the children – where respondent did not attend Court on hearing.
FAMILY LAW – Spousal maintenance – application for interim order for spousal maintenance – interim spousal maintenance order to be distinguished from urgent spousal maintenance order.
FAMILY LAW – Costs – where Applicant seeks Order for costs.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth) s.18

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 72, 74, 77, 117

Child Support (Registration and Collection) Regulations 1988 (Cth), reg.4
Federal Circuit Court Rules 2001 r.13.03C

Applicant: MS HILL

Respondent: MR HILL

File Number: SYC 573 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 July 2014

Date of Last Submission: 7 July 2014

Delivered at: Sydney

Delivered on: 7 July 2014

REPRESENTATION

Solicitor for the Applicant: Mr Kent

Solicitors for the Applicant: Brennan Tipple Partners

The Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Mother is to have sole parental responsibility for the children of the marriage [X] born [omitted] 2001 and [Y] born [omitted] 2013.

2. Each party is to have parental responsibility for making decisions about day to day matters affecting the children [X] and [Y] when the children or either of them is in the care of that party in accordance with these Orders.

3. The children [X] and [Y] are to live with the Mother.

4. The child [Y] is to spend time with the Respondent Father as follows:

   (a)For three (3) nights per week with the Father to collect the child from the [T] Police Station at 7:00 am on Tuesday and return the child to the [T] Police Station at 7:00 am on the following Friday;

5. The child [X] is to spend time with the Father as follows:

   (a)During the school term from 2:00pm each Saturday until 7:00 pm on the following Sunday with changeover taking place on [address omitted];

   (b)For the first half of each school holiday period in 2014 and each alternate thereafter and for the second half of each school period in 2015 and each alternate year thereafter;

   (c)For the purpose of the child spending time with the Father during the first half of each school holiday period the Father is to collect the child from [address omitted] at 6:00 pm on the last day of the school term and return the child to [address omitted] at 6:00 pm on the middle day of the school holiday period;

   (d)For the purpose of the child spending time with the Father during the second half of the school holiday period the Father is to collect the child from [address omitted] at 6:00 pm on the middle day of the school holiday period and return the child to [address omitted] at 6:00 pm on the last day of the school holiday period.

6. The Father is permitted to make telephone calls to the children daily between 6:00 pm and 7:00 and the Father is to facilitate the making of the telephone calls.

7. Each parent must keep the other parent informed of:

   (a)Any medical problems or illnesses suffered by the children;

   (b)Any medication that has been prescribed to the children;

   (c)Any social, school or religious functions which the children are to attend; and

   (d)Any other matter relevant to the children’s welfare.

8. Each parent must advise the other parent and keep the other parent advised of their current contact telephone number and address and advise the other parent of any changes to these details within seven (7) days of such change occurring.

9. In the event of the children or either of them being hospitalised or receiving medical attention, the parents shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital by telephone and if there is no answer will send a text message to the other parent.

10. Each parent must do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school will forward directly to both parents copies of all of the children’s school reports and merit cards and any written material pertaining to their academic and extracurricular activities.

11. Each parent must refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each parent must do all things necessary to ensure that no third party makes critical comments about the other parent in the presence or hearing of the children.

12. Neither party is to physically discipline the children.

13. The Father is restrained and an injunction is granted restraining him from consuming alcohol or using illicit drugs whilst the children are in his care or for 24 hours prior to their coming into his care in accordance with these Orders.

14. It is a condition of these Orders that before the children spend any time with the Father he must first produce to the Mother a clear urine analysis screen in accordance with Order 15.

15. The Father is to submit himself to urine analysis each month commencing within one month of the date of these Orders under the supervision of the screening facility and continuing in each month thereafter, and:

    (a)Such urine analysis is to be conducted in accordance with the Australian/New Zealand Standard 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine; and

    (b)The Father is to do all things necessary to authorise the screening facility to immediately provide to the Mother copies of all drug screen reports.

16. Each parent is to maintain a separate wardrobe of clothing for the children at the parent’s home and when that clothing is worn or taken by the children to the home of the other parent then that parent is to ensure that the clothing is returned washed and ironed to the other parent as soon as possible.

17. Each parent must maintain all medication, equipment and supplies required for the child [Y] at his or her respective home.

18. The father must not expose either of the children to adult and sexually explicit activities or material at any time and by using a password or PIN on any computers connected to the Internet and by using a lock on any cable or satellite services connected to a television.

19. The Respondent is to pay to the Applicant by way of spousal maintenance the sum of $550.00 per week, the first payment to be made after the expiration of one (1) week from the date of this Order and weekly thereafter.

20. The spousal maintenance referred to in the immediately preceding Order is to be payable to the Child Support Registrar for payment out to the Applicant and the Applicant is to do all such things as may be necessary to register these Orders with the Child Support Registrar under the provisions of the Child Support (Registration and Collection) Act 1988 (Cth) within seven (7) days.

21. The Respondent is to pay the Applicant’s costs of the mention on 18 June 2014 in the sum of $271.00 and is allowed one (1) month to pay.

22. Within 28 days of the date of these Orders the Respondent is to file and serve a written submission showing cause why an order should not be made that he should pay the Applicant’s costs of these proceedings to date with the exception of the mention on 18 June 2014 referred to in the immediately preceding Order.

23. The Application is listed for an undefended Final Hearing at 12:00 noon on Monday 27 October 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 573 of 2014

MS HILL

Applicant

And

MR HILL

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of two children under the age of 18 years for:

   a)Interim parenting orders;

   b)Interim spousal maintenance; and

   c)Costs.

2. The Father has not attended Court.

Background

1. The parties were married on [omitted] 2000. They separated on or about 12^th or 16^th August 2013, when the Respondent left the matrimonial home.

2. There are three children of the marriage, all sons. The eldest son is now 18 years of age. The two younger boys, [X] and [Y], were born [omitted] 2001 and [omitted] 2013. Thus, [X] is now aged 13 and [Y] is only a toddler, aged fifteen months.

3. The Mother commenced proceedings by filing an Application for parenting orders on 4^th February 2014.

4. Curiously, she commenced property proceedings by filing an Application in a Case on 25^th March 2014, in which she sought both interim and final orders.

5. However, the Mother filed an amended Initiating Application on 7^th April 2014, seeking final parenting and property orders and interim spousal maintenance and parenting orders.

6. The Respondent Father’s participation in these proceedings has been minimal.

7. There was no appearance by or on the Respondent’s behalf on the first return date on 17^th March 2014. The Application was adjourned to 26^th March. 

8. On 26^th March 2014 the Respondent was represented by Mr Fernie, solicitor, as agent for Ms Moran of Coast Law. The parties were directed to attend a Child Dispute Conference in respect of the parenting matters, to take place on 2^nd May 2014. The Respondent was ordered to file and serve a Response, an affidavit and a Financial Statement prior to 6^th May, which was the date to which the matter was adjourned.

9. The Respondent’s solicitor filed a Notice of Address for Service on 27^th March. An affidavit by the Respondent was filed on 12^th April 2014, referring to parenting matters only. The Respondent did not file a Response or a Financial Statement. He did, however, take part in the Child Dispute Conference on 2^nd May.

10. The matter was not able to proceed on 6^th May due to judicial unavailability because of illness.

11. The matter was re-listed on 18^th June 2014. Despite the intervening period of time, the Respondent did not file any other documents. There was no appearance by or on behalf of the Respondent. Again the Respondent was directed to file and serve a Response and a Financial Statement within 14 days. The Respondent was also directed to show cause why an order for costs should not be made against him for his failure to comply with a direction of the Court. The Application was listed for an interim hearing on 7^th July 2014.

12. On 2^nd July 2014 the Respondent’s solicitor filed a Notice of Intention to Withdraw as Lawyer.

13. The Respondent did not attend Court on 7^th July, nor did he file any other document.

14. In the light of the Respondent’s unexplained absence from Court, a decision was made to proceed with the hearing generally, under the provisions of Rule 13.03C.       

Evidence and Submission

1. The Applicant relied on the following:

   a)her affidavit sworn on 21^st March 2014; and

   b)her Financial Statement filed on 7^th April 2014.

2. The Applicant gave oral evidence.

Application for Spousal Maintenance

1. The Applicant has applied for an interim order that the Respondent should pay to her spousal maintenance in the sum of $550.00 per week. She already has a Child Support Assessment.

2. The right of a spouse to maintenance is set out in section 72 of the Family Law Act 1975 (Cth) at subsection (1):

   A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (b)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)     for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

3. Subsection 74(1) provides that:

   In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

4. The Applicant seeks an order that the spousal maintenance should be paid to the Child Support Registrar for payment out to the Applicant, so that the maintenance can be collected by the Child Support Registrar. Section 18 of the Child Support (Registration and Collection) Act 1988 (Cth) provides for the registration of orders for spousal maintenance at subsection (1):

   Subject to section 19, a liability is a registrable maintenance liability if:

   (a)     it is a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and

   (b)     either of the following paragraphs applies:

   (i)     it arises under a court order or a court registered maintenance agreement;

   (ii)    it is a collection agency maintenance liability.

5. Section 19 of the Act allows for certain liabilities to be declared by the regulations not to be registrable maintenance liabilities. One example is an urgent spousal maintenance order under s.77 of the Family Law Act, which is specifically excluded by the provisions of reg.4(2) of the Child Support (Registration and Collection) Regulations 1988. However, this exclusion does not apply to interim spousal maintenance Orders.

6. The Applicant is the mother of two children of the marriage who are under the age of 18 years. The child [X] is aged 13 years and the child [Y] is only aged 15 months. It is submitted that the Respondent has the capacity to pay the amount sought. In this regard the Applicant’s solicitor tendered copies of two of the Respondent’s payslips, from the weeks including 21^st and 28^th May 2014. These two documents show that the Respondent received a net pay of $2003.07 and $2033.45 respectively from his employer, [omitted].

7. The Respondent has not filed a Financial Statement. His affidavit of 9^th April 2014 confirms that the children are living with the Applicant. The affidavit makes no reference to financial matters other than to claim that since the date of separation the Respondent has paid “up to one thousand three hundred dollars ($1,300.00) per week to [Ms Hill][1] to assist with the care of the children”.[2]   The Applicant denied that the Respondent had paid her those amounts.

   [1] [Ms Hill] is the Applicant.

   [2] Affidavit of Mr Hill 9.4.2014 at [9]

8. I am satisfied that an interim order for spousal maintenance should be made in the sum of $550.00 per week, payable to the Child Support Registrar for payment out to the Applicant.

Costs

1. The Applicant seeks an order for costs. Mr Kent, who appeared for the Applicant, told the Court that his client was in receipt of a grant of legal aid, which is one of the matters that the Court should consider under s.117(2A) of the Family Law Act.

2. On 18^th June 2014 the Court directed that the Respondent should show cause why an order for costs of the day should not be made in respect of his failure to comply with a direction of the Court, namely to file and serve a Response and a Financial Statement. The Respondent has not done so.

3. I am of the opinion that there are circumstances that justify making an order for costs against the Respondent for the mention on 18^th June 2014. Item 13 of Part 1 of Schedule 1 of the Rules allows for an amount of $271.00 as the daily hearing fee for a short mention. I will allow that amount. He will be allowed one month to pay.

4. The Applicant also seeks an order for costs in respect of the proceedings as a whole. The Respondent will be given the opportunity to show cause why he should not pay those costs, and he will need to do so by filing and serving a written submission within 28 days.

Parenting Orders

1. I have read the affidavits of the Applicant and the Respondent on the subject of parenting orders. The Respondent, of course, has not attended court on the hearing of the application. I am satisfied that the Orders sought by the Applicant are in the children’s best interests, which must be the paramount consideration (s.60CA).

2. I note with concern that there is an Apprehended Domestic Violence Order in force for a period of five years from 19^th February 2014 against the Respondent, naming the Applicant as the protected person. One matter that the Court must consider is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or domestic violence (s.60CC(2)(b)).

3. In the circumstances, the presumption under s.61DA that it is in children’s best interests for their parents to have equal shared parental responsibility for them does not apply.

4. The Application will be listed for a final hearing on an undefended basis.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 7 July 2014