FAMILY COURT OF AUSTRALIA
(Amended pursuant to Rule 17.02)
| AUDEN & AUDEN AND ANOR | [2018] FamCA 17 |
| FAMILY LAW – INTERIM PROPERTY – Spousal maintenance – where the wife is unable to adequately support herself and the children – where the wife is the primary carer of the children – where the husband is able to pay spouse maintenance. FAMILY LAW – INTERIM PROPERTY – Where the husband unilaterally sold the matrimonial home – where the Second Respondent asserts that the parties owe him a significant debt – where the wife seeks an interim property settlement in order to purchase a property to house herself and the children – where the interim orders may be reversed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 72, 75, 79, 80, 90AE Family Law Rules 2004 (Cth) r. 15.5 |
| Bevan & Bevan [2013] FamCAFC 116 Bloxham & Bloxham [2018] FamCA 1070 Brown and Brown (2007) FLC 93-316 Clauson and Clauson (1995) FLC 92-595 Curnow & Curnow Unreported, Full Court of the Family Court of Australia, 28 April 1997 Hall v Hall [2016] 257 CLR 490 In the Marriage ofBevan (1995) FLC 92-600; (1993) 19 Fam LR 35 In the Marriage of Eliades (1981) FLC 91-022 N & N (1997) FLC 92-782 Nutting and Nutting (1978) FLC 90-410 Robinson and Willis (1982) FLC 91-215 Stanford & Stanford (2012) 247 CLR 108 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Mr Auden |
| RESPONDENT: | Ms Auden |
| INTERVENOR: | Mr B Auden |
| FILE NUMBER: | PAC | 3319 | of | 2017 |
| DATE DELIVERED: | 23 January 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 August 2018 and 12 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPLICANT: | Watts McCray (NSW) Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Cummins SC |
| SOLICITOR FOR THE INTERVENOR: | Lander & Rogers |
Orders
Pending further order
That previous parenting orders made be discharged.
That the children X born … 2002 (“X”), Y born … 2004 (“Y”), Z born … 2006 (“Z”) and W born … 2011 (“W”) live with the mother.
That W spend time with the father each alternate weekend from the conclusion of school on Friday (or from 5pm in the event it is not a school day) until 5pm on Sunday and such other times as agreed in writing between the parents. The first weekend shall commence on 25 January 2019. To facilitate this time, the father shall collect W from school at the commencement of time or from the mother’s residence on a non-school day and return W to the mother’s residence at the conclusion of time. In facilitating changeover, the father shall not enter the mother’s property and instead shall remain in his vehicle outside the boundary of the mother’s property while W moves independently from the father’s vehicle to the front door of the mother’s home.
That the children X, Y and Z spend time and…
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- AGLC
- Illgen & Yike [2018] FamCA 17
- Case
- [2018] FamCA 17
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to make interim property orders to facilitate the wife's housing needs, considering the husband's sale of the matrimonial home and the asserted debt. Additionally, the court addressed the wife's claim for spousal maintenance, given her inability to adequately support herself and the children and her role as primary carer, against the husband's capacity to pay.
Hannam J made several interim orders regarding the children's living arrangements, time with each parent, and communication. The court discharged previous parenting orders and ordered that the children live with the mother, with specific arrangements for one child to spend time with the father. The orders also emphasised facilitating the children's wishes regarding contact with the father and ensuring their participation in social and extra-curricular activities. Furthermore, the court made orders for family therapy, requiring both parents to attend and cooperate with the therapist, with provisions for cost sharing and confidentiality. The court also made orders restraining both parents from denigrating each other in the presence of the children and from discouraging the therapy process.
Orders
Orders of the court
Pending further order
1.
That previous parenting orders made be discharged.
2.
That the children X born … 2002 (“X”), Y born … 2004 (“Y”), Z born … 2006 (“Z”) and W born … 2011 (“W”) live with the mother.
3.
That W spend time with the father each alternate weekend from the conclusion of school on Friday (or from 5pm in the event it is not a school day) until 5pm on Sunday and such other times as agreed in writing between the parents. The first weekend shall commence on 25 January 2019. To facilitate this time, the father shall collect W from school at the commencement of time or from the mother’s residence on a non-school day and return W to the mother’s residence at the conclusion of time. In facilitating changeover, the father shall not enter the mother’s property and instead shall remain in his vehicle outside the boundary of the mother’s property while W moves independently from the father’s vehicle to the front door of the mother’s home.
4.
That the children X, Y and Z spend time and communicate with the father in accordance with their respective wishes. In this regard, should any of the children express a wish to spend time or communicate with the father the mother shall notify the father and do all things necessary to assist in facilitating that wish.
5.
That the father shall use his best endeavours to ensure that the children maintain and attend any social and extra-curricular activities that occur when they are spending time with him.
6.
That each parent ensure the other is advised promptly of any medical emergency or significant illness suffered by any of the children while in that parent’s care.
7.
That each parent shall be permitted to liaise directly with:
(a) Any medical professional upon which the children or any of them may attend from time to time;
(b) Each of the children’s schools to obtain information about each child’s progress.
8.
That each parent is restrained from denigrating the other party in the presence of or hearing of the children and shall use their best endeavours to ensure that third parties are also so restrained.
Family therapy
9.
That the parents do all acts and things necessary to attend upon Dr C, child and adolescent psychologist (hereinafter referred to as “the therapist”) for the purpose family therapy. For the purpose of this Order:
(a) Each parent shall contact the D Group within 48 hours to make an appointment to see Dr C and accept the first available appointment; and
(b) In the event Dr C is unavailable for new patients then the parties shall attend upon such other therapist as is available from the D Group and agreed between the parties and in the absence of agreement, recommended by the Independent Children’s Lawyer.
10.
That the parties have leave to provide to the therapist:
(a) A copy of the Child Responsive Program Memorandum dated 8 May 2018; and
(b) A copy of these Orders.
11.
Each party will do all things necessary to comply with the reasonable requests of the family therapist including:
(a) Attending upon the therapist at such times and at such places as they may direct for the purposes of family therapy; and
(b) If required by the therapist, facilitate the children attending upon the therapist including but not limited to encouraging the children to attend therapy at such times and at such places as may be requested for the purposes of family therapy.
(c) The parties are to encourage their adult son Mr E Auden to attend the family therapy if recommended by the therapist.
12.
Both parents are restrained from discouraging the therapy process and/or the therapist and permitting or allowing any other person to do so in the children’s presence and/or hearing.
13.
Each parent shall each bear the costs of their individual sessions and the parents shall share the costs equally of the sessions involving the children or any other joint sessions. Such costs are to be paid directly to the therapist upon receipt of any invoice issued.
14.
That the family therapy referred to in Order 9 is to be confidential and non-reportable, except that the Independent Children’s Lawyer may obtain from time to time, a report from the therapist confirming the attendance by each of the parties and the children at therapy, and any recommendations made by the therapist in relation of further/ongoing therapy and/or other actions of the parties and/or children.
15.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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