Hill & Kempe

[2009] FamCA 169

FAMILY COURT OF AUSTRALIA

HILL & KEMPE [2009] FamCA 169

FAMILY LAW – CHILDREN – interim proceedings – application by the wife seeking to vary interim orders made by consent in November 2008 – consideration of reports of speech pathologist – where presumption of equal shared parental responsibility applies – consideration of s 60CC factors – orders varied with respect to younger child – children to live with the wife and spend time with the husband

FAMILY LAW – SPOUSAL MAINTENANCE – order previously made for the husband to pay the wife urgent spousal maintenance – where the husband seeks to discharge the order – where the wife has subsequently been granted a Child Support assessment – where the receipt and payment of Child Support constitutes a significant change in the financial circumstances of both parties – where child care fees have increased since the maintenance order was made – order amended to reduce the maintenance payable by the husband to take into account the payment of Child Support

FAMILY LAW – PRACTICE AND PROCEDURE – joint instructions to expert

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Hill

RESPONDENT: Mr Kempe

FILE NUMBER: ADC 2789 of 2008

DATE DELIVERED: 4 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D. Morosini

SOLICITOR FOR THE APPLICANT:	Di Morosini and Co
COUNSEL FOR THE RESPONDENT:	Mr D.M. Berman

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

Orders

1. That the infant children G born on the … August 2004 and J born on the … May 2006 live with the husband as follows:

   (a)as to G only on Wednesday in each week with the husband to collect G from school and return the child to the wife’s home at 5.45 pm each Wednesday;

   (b)in relation to each of the children G and J:

   (i)on alternate weekends from 8.00 am on Saturday morning until 3.30 pm  on Sunday afternoon commencing Saturday the 22 November 2008;

   (ii)on the intervening Saturday from 8.00 am until 5.45 pm commencing Saturday 29 November 2008.

2. The children live with the wife at all other times.

3. The husband telephone the children every Tuesday and Thursday at 4.00 pm and that the husband do provide to the wife a pre-paid mobile telephone for this purpose.

4. The parties use a communication book.

5. The parties attend and take steps necessary to ensure that the children attend for a family assessment to be conducted by a nominated psychologist to be agreed between the parties with the costs to be shared equally between the parties.

6. IT IS DIRECTED that the parties agree upon a single letter being a joint instruction to Mr C to complete his valuation and if that cannot be done within fourteen [14] days, then the parties are directed to send the joint letter of instructions so far as it is able to be agreed with addendums from each of the husband’s and wife’s solicitors setting out the matters which are not agreed.

7. The husband do pay to a bank account nominated by the wife the further sum of SEVEN HUNDRED DOLLARS [$700.00] per week reduced by the weekly equivalent of any amount of child support assessed as payable and paid by the husband on account of the two infant children of the marriage.

8. The question of the spouse maintenance is referred to the Docket Registrar for allocation of a hearing date.

9. All interim applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2789 of 2008

MS HILL

Applicant

And

MR KEMPE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes back before me today for consideration of interim issues.  When it was adjourned on the last occasion was set down for approximately one hour to deal with those issues.  The most important matters relate to the welfare of the two infant children of the parties to this marriage which has broken down.  The children are G, who was born in August 2004, and J, who was born in May 2006.  They are therefore children of quite early years.

2. The parties have been engaged in litigation in this Court since July of last year and there are already a large number of documents, some of a considerable size, on file. 

3. When determining matters in the best interests of the children in relation to interim matters, the Court is bound by the decision of Goode & Goode (2006) FLC 93-286 and has to give consideration to the matters referred to therein; in particular, the matters which arise in relation to Part VII of the Family Law Act1975 (Cth) concerning children.

4. It seems appropriate in this matter to highlight that the objects of Part VII which indicate that the best interests of the children are met by ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and ensuring that children receive adequate and proper parenting, to  help them achieve their full potential, and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.

5. The Act given to the Family Court by Parliament emphasises immediately that the principles underlying those objects include that the children have the right to know and be cared for by both parents, regardless of whether the parents are married, separated or have never married or have never lived together.  Children have the right to spend time on a regular basis with their parents and other persons significant to them.  Significantly, in this case, the Act provides that parents should jointly share the duties and responsibilities concerning the care, welfare and development of their children and parents should agree about the future parenting of their children. 

6. Sadly, this is a case where the parents have not been able to fulfil the expectations of Parliament in that they have not been able to share the duties and responsibilities in an open and civil manner, nor have they been able to agree about the future parenting of the children.  Rather, these matters have been the subject of dispute before this Court, to the extent that the matter comes on before me today when the parties rely on a large amount of material in which they criticise each other and the other's behaviour.

7. In a hearing of this nature, on an interim basis, taking into account the documentary material before me, it is not possible for me to draw conclusions as to the factual matters alleged where they are clearly in dispute.  It is therefore necessary for me to make a decision based upon the material that I have before me, assessing, as I can, those matters which are not in dispute and doing the best I can with those matters which are in dispute.

8. The matter currently before me primarily relates to the child J, who was born in May 2006.  He is therefore not yet three years old.  For a considerable part of his life - namely, since July of 2008 his parents have been involved in litigation in this Court in relation not only to matters concerning the children's welfare, but concerning their financial arrangements and resolving the dispute concerning financial matters.

9. The mother's application is to vary the order made in November 2008, by consent, which provided that G and J live with the husband each Wednesday from either 2.30 pm, in the case of J or the end of school, in relation to G and concluding at 5.45 pm; on alternate weekends from 8.00 am on Saturday until 3.00 pm on Sunday afternoon; on the intervening Saturday from 8.00 am until 5.45 pm and on other special occasions.  The children were to live with the wife at other times.  Orders were also in place for there to be telephone communication between the children and the father.

10. The mother brought an urgent application for the orders to be discharged, based upon the fact that she had been told by a speech pathologist that the speech pathologist had made a mandatory report to Families SA concerning the child J. 

11. I have before the Court several reports concerning J, from the speech pathologist Dr B.  The most significant of those are the two most recent reports.  The first of those recent reports is 1 January 2009, a letter addressed to Ms Ferdinandy, the wife's solicitors, in which she refers to the regression of J’s speech and other behaviour reported by his mother.

12. The report, which I have read and take into account, concludes with a statement, just immediately before the summary on the second page:

    “Management of this child's problems would seem to involve a temporary cessation of contact with his father until his anxiety and his speech return to normal limits.  Given the frequent statements by this child that he is scared of his father, a mandatory report of this child's at-risk status was made to the relevant authorities on 17 January 2009. 

    As speech and language skills are vulnerable to the effect of anxiety, and their development is ongoing until the age of at least five years, contact with the father for this child may need to be limited for a protracted period of time, if the problems in the relationship with him cannot be resolved.”

13. Prior to coming to those conclusions, Dr B sets out in her report material provided to her by the mother upon which she has drawn conclusions.  The father does not admit and specifically denies that his behaviour or relationship with the child is the cause of the behaviour, nor does he accept the conclusions drawn by Dr B in that report.

14. The second report, which is a document received today, is a letter of 2 March 2009 from Dr B to the wife's solicitors, which appears to be in response to a letter from the wife's solicitors to Dr B dated 25 February 2009 in which the wife's solicitors ask specific questions that she requests Dr B address.

15. Having read the report of Dr B, I am not able to say that Dr B has addressed all of those questions.  She certainly has not addressed them specifically in the manner which might otherwise be expected of an expert who has experience in giving evidence in this Court and other superior Courts.  Rather, again it repeats some of the earlier material and again draws conclusions.  Once again the father does not accept that the factual material upon which those conclusions are drawn is correct, or that the conclusions are accurate.

16. One of the questions asked by the wife's solicitors was number 2:

    “Whether you are able to personally assess the veracity of information provided to you by the husband and the wife giving the grounds for your opinion.”

17. It is certainly not likely that the Court would conclude that a speech pathologist should express an opinion upon the veracity of the parties in these circumstances.  Nonetheless, having been asked the question, Dr B comes to conclusions; namely, that the father's veracity is in question and that the mother's veracity is not in doubt.  She uses examples of the behaviour of the father failing to show remorse or sorrow, as suggested by her, and his insistence on the type of report that should be provided. 

18. It may not have been appropriate to ask the question but, even in those circumstances, the answer does not deal with the question in an appropriate way.

19. I accept the submissions from counsel for the father that the report uses phrases such as “these matters seem to suggest a problematic relationship with the father” and that there are other expressions such as “this is suggestive of [J’s] difficulty in his relationship with his father”. 

20. This is a matter that requires careful consideration of those reports but it is necessary to take those reports in the context in which they have been written.  Namely, that most of the information given to the speech pathologist was given by the mother and that the father disputes some of that information.  He disputes the interpretation of his own behaviour on the limited number of occasions he had dealings with the speech pathologist.

21. Nonetheless it is of concern that the speech pathologist comes to the conclusion that the relationship with the father is the factor which is having the effect of reducing the child's improvement in his speech and is the cause of what she describes as his “anxiety-based fluency disorder”.

22. As previously indicated, the Court has to take into account, when making any interim order, the provisions of Part VII in the Family Law Act and in particular the presumption of equal shared parental responsibility. In this case the presumption applies. It is therefore necessary to consider substantial or significant time. In that regard the provisions of section 60CC are significant.

23. The main factors in section 60CC are described as primary considerations; the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is clearly section 60CC(2)(b) to which the wife directs the Court's attention, based upon the views of the speech pathologist.

24. There are additional considerations to be brought into account; in particular the nature of the relationship of each of the children with each of their parents and the capacity of each of the parents to provide for the needs of the child, including the emotional and intellectual needs.

25. It is also of significance in this matter that there is a need to consider the attitude to the child and the responsibility of parenthood demonstrated by each of the parents and the willingness of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

26. I specifically take into account the reports of Dr B but do so in the context of the criticisms which have been appropriately raised by counsel for the father.  However, this is an interim hearing in which the question of the testing of all of the evidence is not possible and that includes the testing of the evidence of Dr B.  It may be difficult to describe her, from now on, as an impartial or independent expert in view of her opinions already expressed as to the veracity of the father.

27. Weighing all of the factors necessary under section 60CC and taking into account Dr B’s reports with these qualifications, the significant factor is the need to maintain a meaningful relationship with both parents, for both G and J.

28. I have considered all of those matters and taking into them into account believe that a reduction of the time that J goes backwards and forwards between his parents may in fact be of benefit to him, both from the view of allowing him to settle and allowing his parents to have less of a destructive routine. 

29. Therefore, in relation to the child J, I do not propose to continue the orders in paragraph 1(a), which relate to the children living with the father on each Wednesday.  Albeit that G and J are not much apart in ages, G is however already attending school.  A brief separation from her brother J, after school on Wednesday, would not be detrimental either to her or to J’s welfare and may in fact have benefit for both of the children.

30. In relation to the issue of the instructions to Mr C, I am told that it is possible that the parties can agree upon a single letter, being joint instructions to Mr C, to complete his valuation.  If that cannot be done within 14 days, then the parties are directed to send the joint letter of instructions, so far as it is able to be agreed, with addendums from each of the husband and wife's solicitors, setting out the matters which are not agreed.

31. In relation to the question of the interim maintenance order, after hearing submissions on 13 November 2008 I made orders by way of urgent spouse maintenance which provided that, until the spouse maintenance matter is determined by way of interim or final hearing, the husband was to pay a list of items, which included insurance, mortgage repayments, lease payments on the car, health insurance, the joint line of credit and school fees, together with a sum of $700 per week.

32. The husband seeks to discharge that order on the basis that the wife has subsequently applied for and been granted a child support assessment which requires the husband to pay approximately $2,167 a month by way of child support for the two children.  In relation to the calculations I made on 13 November 2008 that is a significant change in an amount being received by the wife.

33. Clearly the order I made on 13 November 2008 was not an order in relation to child maintenance or child support but took into account the financial statements of the parties, which included the financial statements of the wife which set out what she asserted to be her expenses, including her expenses in relation to maintaining the children.

34. At that time, of course, the wife did not have available to her a Child Support Assessment.  Similarly, at the time I assessed the capacity of the husband to pay the amounts referred to therein he was not assessed as having been liable to pay the Child Support Assessments for the children. 

35. The other significant factor is apparently an increase in child care fees for the child G, having gone up from $81 a week to $225 per week.  These significant factors alter the appropriateness of the order for spouse maintenance made by me on 13 November 2008.  In relation to the child support figure, it is a figure of some significance. 

36. The application is made in relation to discharging the spouse maintenance order on the basis that the order in relation to spouse maintenance took into account only the factors that were before the Court at that time.  I propose to amend the order of 13 November 2008 to provide that paragraph 2 reads:

    “The husband do pay to a bank account nominated by the wife a further sum of $700 per week, reduced by the weekly equivalent of any amount of child support assessed as payable by the husband on account of the two infant children of the marriage.”

37. I have reduced the sum to take into account the child support amount.  I have not made a specific reduction in relation to the expenses for G and will leave that as a factor which can be taken into account in an overall assessment of the issue of spouse maintenance, or can be taken into account as a factor in relation to the child support assessment, it being a specific amount payable by the husband for the benefit of the child G.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  12 March 2009