Kenney and Kenney
[2017] FCCA 3117
•14 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KENNEY & KENNEY | [2017] FCCA 3117 |
| Catchwords: FAMILY LAW – Interim parenting orders and interim property and spousal maintenance orders sought – best interests of child – interim parenting and spousal maintenance orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 74(1), 75(2) |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS KENNEY |
| Respondent: | MR KENNEY |
| File Number: | PAC 5208 of 2016 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 1 June 2017 |
| Date of Last Submission: | 1 June 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 14 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Breeze |
| Solicitors for the Applicant: | Family Law Group Pty Ltd |
| Solicitors for the Respondent: | Stojanovic Solicitors |
ORDERS
That the child X born (omitted) 2005 (“the child”), shall live with the father.
That the child spend time with the mother for 2 hours each fortnight on a Sunday, at the mother’s residence, provided that the child’s brother Mr J, born (omitted) 1999, is present with the child and the mother.
The father shall take all reasonable steps to ensure that Mr J attends with the child during the child’s time with the mother, as referred to in the above order.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 9 October 2018.
The Family Report to deal with the following matters:
a. Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
b. The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
c. The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
i.either of the parents: or
ii.any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
d. The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
e. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
f. The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.
The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.
The parties are restrained by injunction from denigrating the other party in the other party’s family in the presence or hearing of the child.
The father shall pay spousal maintenance to the wife in the sum of $200 per week, with the first such payment to be made on 15 December 2017, which shall be effected by depositing money into the wife’s bank account, “Ms Kenney, BSB: (omitted), Account: (omitted).”
By consent, the father pay all mortgage repayments payable for the property situated at an known as Property A, in the state of NSW, as and when they fall due.
IT IS NOTED that publication of this judgment under the pseudonym Kenney & Kenney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5208 of 2016
| MS KENNEY |
Applicant
And
| MR KENNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment relate to the determination of the mother’s interim applications seeking, inter alia, parenting orders in relation to the child X born (omitted) 2005 (hereinafter referred to as the child); spousal maintenance under section 74 of the Family Law Act 1975; and interim property settlement.
The mother’s proposed interim orders are set out in Exhibit A. As set out in Exhibit A, the mother’s primary interim parenting proposals was that the child live with her. At the interim hearing, in the alternate, the mother sought an order that the child spend 6 hours on each Sunday with the mother, and that the father use his best endeavours to facilitate the child Mr J transporting the child to the mother’s residence.
The mother’s interim applications were opposed by the father.
Material relied upon by the parties
The mother relied upon her:
a)Initiating Application filed 8 November 2016;
b)Financial Statement filed 8 November 2016;
c)Notice of Risk filed 8 November 2016;
d)Affidavit of the mother filed 25 May 2017;
e)Affidavit of Mr D filed 25 May 2017; and
The father relied upon his:
a)Response filed 15 December 2016;
b)Financial Statement filed 15 December 2016;
c)Affidavits filed 15 December 2016 and 31 May 2017; and
d)Notice of Risk filed 15 December 2016.
13. The parties relied upon the following exhibits:
a)Exhibit A: Mother’s Minute of Orders;
b)Exhibit B: Mother’s case outline;
c)Exhibit C: Child Inclusive Conference memorandum to the Court 25 January 2017;
d)Exhibit D: Invoices from (omitted);
e)Exhibit E: Hand written two page document headed 6 April 2017 letter and pertaining to Annexure N of the mother’s affidavit; and
f)Exhibit F: Statement 1, (omitted) Bank, 4 pages spanning 14 November 2016 to 31 December 2016.
Agreed facts, unless otherwise stated
The father is aged 46 years and the mother is aged 38 years.
The parties began living together in about (omitted) 1997. They married in (omitted) 2000 and separated in about October 2016.
There were three children of the marriage, Ms E born (omitted) 1998; Mr J born (omitted) 1999; X born (omitted) 2005.
During the parties relationship, the father worked as a (occupation omitted). He was required to have his own ABN. However, he did not operate a business.
During the marriage, the father was the sole financial provider. He did not work every day of each week. He worked when work was available. However, he worked regularly.
During the marriage, the mother stayed at home and attended to domestic duties, and caring for the children. The father assisted the mother in caring for the children, especially on days when he was not working.
Up until October 2014, the father worked under his name trading as (omitted).
In September 2014, the parties formed a partnership and traded under the name “(omitted).” The partnership (business omitted), in the same manner as when the father was a sole trader.
In about October 2016, a business name called “(omitted)” was registered. The holders of this business name are the father and the two eldest children. This business (business omitted), in the same manner as the earlier partnership business.
After (business omitted) was open, all the income derived was paid into a bank account held with the (omitted) Bank, the Account Number ending in (omitted).
In about January 2016, and (vehicle omitted) motor vehicle was purchased, according to the father, for Mr J. This car is now registered in the eldest child’s name.
The father asserts that the eldest two children have decided to remain living with the father. The father asserts that they have little communication with the mother.
The father asserts that since separation the mother has only asked to spend time with the child. However, the father asserts, the child is very reluctant to spend time with the mother. He asserts that the child is especially close with the eldest child and himself, and he believes that this is the main reason why she does not wish to spend time with the mother.
The father asserts that the eldest two children and the father have scheduled times to take the child to school each day, and collect her from school each day.
The father asserts that the child is very comfortable living with him, and he believes that if she was to leave the home, and in particular being away from the eldest child, that would cause the child to be upset and distressed. The father asserts that the separation between the parties has had a negative effect on the child, but hopefully the child will in the near future spend time with the mother. The father asserts that he will encourage the child to maintain a relationship with the mother.
The father asserts, in his affidavit filed 15 December 2016, that the mother is currently taking medication for depression. He asserts that he does not believe that the mother is in a state where she is able to care for the child.
The father asserts that the children, including the child, have a comfortable place to live, in a home they have occupied for a long time. He asserts that the children are very close, and he does not want to separate the child from the eldest two children. He asserts that the recent separation of the parties has affected the child. He asserts that the child has told him that she is not comfortable to see the mother on her own. The father asserts that he is trying to encourage either of the eldest children to go with the child to see the mother.
Following the parties’ separation, the mother resided in a granny flat at the parties’ home from (omitted) 2016 to (omitted) 2017. The father remained living in the former matrimonial home. Then the mother began to rent a one-bedroom apartment in (omitted). The rent is $300 per week.
The mother asserts in her affidavit filed 25 May 2017, that there is currently an interim ADVO against the father for her protection. She states that the ADVO proceedings, including a charge against the father for assault upon the mother, is next listed in the Local Court on 5 July 2017.
In the NSW Police fact sheet dated 4 November 2016, it is stated that the father (referred to as “the accused”) is a (occupation omitted) and earns about $2,500 per week.
Relevant interim parenting legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The child has a meaningful relationship with the father and would benefit from a continuance of that relationship.
Since the parties’ separation in October 2016, the child has had minimal contact with the mother.
In late January 2017 and in about mid-February 2017, the mother attended the former matrimonial home to see the child. The child on both occasions was reluctant to engage with the mother.
The Court refers to the child’s statements to the family consultant at the Child Inclusive Conference on 25 January 2017. At that conference, the child stated, inter alia, that she wanted to live with the father; she does not want to spend time with the mother, but that, if the Court orders that she do so, she wants her siblings to accompany her; the mother had physically abused her by grabbing her hand and forcing her to sit down when she came to her school and had scratched her; and she claimed to be scared of the mother. The child told the family consultant that the mother had changed over the last few years; she stated that the mother had commenced yelling at her sister and the father. The child told the family consultant that in order to feel comfortable in spending time with the mother the mother would need to change, stop acting aggressively, stop yelling, and stop acting nice when “we are in front of people”.
There is a significant suggestion in the material before the Court, including the child’s above statements to the family consultant, that there has been a fracture of the child’s meaningful relationship with the mother.
In the view of the Court, at this interim stage, there is a significant risk that if the child was to live with the mother her apparent present tenuous relationship with the mother would be further harmed, and also damage the prospect of their former meaningful relationship being restored; in this context, the Court refers to the child’s above statements to the family consultant and her close relationship with the eldest child, in particular.
Further, should the child live with the mother, there is a significant risk that the child’s meaningful relationship with the father could be detrimentally affected, noting, in particular, the child’s particularly close relationship with him.
It is not without relevance that at the beginning of the Child Inclusive Conference, the mother acknowledged to the family consultant that it may negatively impact on her relationship with the child if she was to seek for the child to live with her.
Again, at the interim hearing, in the alternate, the mother sought an order that the child spend 6 hours on each Sunday with the mother, and that the father use his best endeavours to facilitate the child Mr J transporting the child to the mother’s residence.
In relation to this alternate proposal of the mother, the father proposed that the child spend 2 hours each fortnight on a Sunday with the mother provided that her brother Mr J was present, in addition to any extra time that the child wishes to spend with the mother; the father submitted that 6 hours was too much in the present circumstances where the child’s former meaningful relationship with the mother was fractured. In this context, the father also submitted that the father could not guarantee that the child’s brother would be able to transport the child to the mother’s residence.
The Court refers to the father’s assertion in his affidavit filed 31 May 2017 that the child has said to him on a number of occasions that she would only see the mother if one of her siblings went with her. The child also stated to the family consultant that if the Court orders that she spend time with the mother she would want her siblings to accompany her.
In the view of the Court, taking into account the present nature of the child’s fractured relationship with the mother, the child’s views as expressed to the family consultant, including the child’s apparent lack of spending time with the mother to any significant extent since separation in October 2016, the mother’s alternate proposal that the child spend as much as six hours each Sunday with the mother would carry the significant risk that the prospect of restoration of the child’s former meaningful relationship with the mother would be put at risk. The father’s proposal, in this context, that the child spend time with the mother for two hours each fortnight on a Sunday, with the child’s brother being present, will, in the view of the Court, more likely result in an enhanced prospect of the child’s former meaningful relationship with the mother being restored. Should the child spend such time with the mother, the child’s meaningful relationship with the father should not be detrimentally affected.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother makes allegations of family violence perpetrated against her by the father, which are significantly denied by the father.
The mother also makes significant allegations against the father of excessive consumption of alcohol by him, which allegations are denied by the father.
At the Child Inclusive Conference, the mother told the family consultant that the father had never been physically violent towards the children and had always provided for their material needs. She had conceded to the family consultant that she had used physical discipline upon the children, but had never been physically violent towards them.
Further, at the Child Inclusive Conference, the mother told the family consultant that she herself had been violent towards the father but in self-defence, on occasion.
The father told the family consultant that the mother had been physically violent towards him, such as pulling his hair.
The father told the family consultant the mother was suffering from some form of mental health issue, but that the mother had not received a diagnosis because the ongoing assessment was interrupted by the separation. He alleged to the family consultant that the mother was an aggressive woman. He noted to the family consultant that the mother did not physically abuse the children, other than post-separation, when the mother had grabbed at the child on two different occasions.
At the above conference, the middle child Mr J, asserted to the family consultant that the mother had been violent towards the child when the mother had attended upon the child’s school to see her. He asserted that the mother, after the child had walked away from the mother, had run after her, grabbing her and pulling her, leaving a mark on the child’s hand. He asserted to the family consultant that this had occurred on another occasion also, with the mother declaring to the child, “Don’t you want to talk to me.” It is unclear as to whether the child Mr J was physically present during the above alleged incidents between the child and the mother.
The child Mr J asserted to the family consultant that the mother was an aggressive person who “picks a fight about anything”, tells lies, and “changes the story”.
This child denied that the father consumes alcohol to excess or was verbally abusive.
Again, the Court refers to the child’s statements made to the family consultant, in relation to the mother, and referred to above under the meaningful relationship primary consideration.
In the psychiatric report of Dr S, dated 2 November 2016, inter alia, it is stated that the psychiatrist was of the view that the mother suffers from major depressive illness with significant anxiety, and for which medication was prescribed. It is noted that the mother herself states that she suffers from depression, and takes medication for it.
The psychiatrist stated that she had spoken to the father over the telephone and he had corroborated and agreed that there was verbal and physical abuse in the household and in the marital relationship. He admitted to having daily half to 1 litre of wine himself, which the mother had also disclosed to the psychiatrist.
The psychiatrist also spoke to the eldest child, “their 18-year-old daughter”, who stated there was a long history of marital problems and verbal and physical abuse between her parents, being physical toward each other, however, she denied the parents being physical toward the children. This child also added that the mother had a high level of suspicion that the father was manipulating the children against her, which this child felt was not true.
The psychiatrist noted that the father had informed her that he drank on a daily basis; that he earnt a lot of money and bought the children sound brand named items.
The psychiatrist reported seeing the mother on 13 September 2016, with the mother reporting, inter alia, that the medication was assisting her to make her feel less tired, more calm, and her sleep had improved.
The psychiatrist concluded her report by stating that she had encouraged the mother to keep taking the medication and she believed that it was making a clinical difference for the mother. However she reported that the marital relationship problems were ongoing and required marital counselling.
In the referral letter of the mother’s GP dated 5 December 2015, the GP states, inter alia, that the mother had told the GP that the father drinks a lot of alcohol and this makes him more aggressive and abusive during arguments.
The mother herself states that she would like to commence seeing the above psychiatrist to help her manage her depression and monitor her medication.
The mother alleges that during the marriage she was not allowed to make any decisions for herself or the family, and as a result, she is afraid to live on her own and make decisions for herself. She alleges that during the marriage the father refused to allow her to have any friends or attend any social events, and as a result, she is afraid to interact with large groups of people and she has very low self-esteem.
In the affidavit of the maternal grandfather, he alleges that over the years when he visited Sydney, when the parties were living together, he noticed the father to drink heavily, and become more aggressive.
The maternal grandfather states that from 2009 to September 2015 he did not spend time with the mother. From 2009 to the date of his affidavit he had not spent time with any of the children.
The maternal grandfather alleges that the mother had informed him of alleged family violence perpetrated against her by the father.
The maternal grandfather asserts that since mid-October 2016 he has loaned the mother some $30,400 for the mother’s legal fees, and other domestic expenses.
The maternal grandfather states that he is 68 years of age, works part-time earning $1,140 per fortnight together with a pension of $140 per fortnight. He states that he no longer has any money in savings and he cannot continue to financially support the mother.
There is a significant suggestion in the material that the parties, during their relationship, were involved in verbal and physical altercations between each other. However, the Court again refers to the mother’s statements to the family consultant that the father had never been physically violent towards children, and the Court also notes the eldest child’s statements to the psychiatrist denying the parents being physical towards the children.
In the view of the Court, on the material before it, should the child remain living with the father, the child should not be exposed to an unacceptable risk of family violence. On the material before the Court, there is no need to protect the child from being exposed to abuse neglect or family violence in remaining living with the father.
The Court has considered the mother’s proposed injunction against the father in relation to alcohol consumption, but at this interim stage, the Court is not persuaded that the child needs to be protected by such an injunction. The mother’s allegations pertaining to the father’s alcohol consumption would appear to largely relate to the period when the parties were living together, and again, the mother had stated to the family consultant that the father had never been physically violent towards the children and had always provided for their material needs.
Further in this context, the Court notes the middle child’s statements to the family consultant, made on 25 January 2017 (again, the parties separation was in mid-October 2016), denying that the father consumes alcohol to excess or is verbally abusive, together with the eldest child’s statements to the psychiatrist in relation to the father not being physically abusive towards the children.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court gives significant weight to the views of the child as expressed to the family consultant at the Child Inclusive Conference.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents would appear to have taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father presently pays no child support, according to his Financial Statement.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the need to protect primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother lives in (omitted) as does the father.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The father would appear to have such capacities, whilst the evidence at this interim stage is quite limited in relation to the mother’s present capacities, noting the child’s statements to the family consultant in relation to the mother, the comments of the psychiatrist in relation to the mother’s anxiety, whilst acknowledging the mother’s former meaningful relationship with the child.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The Court refers to its discussion above under the need to protect primary consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Subject to the Court’s discussion above under the need to protect primary consideration, in relation to the nature of the parties’ altercations during the relationship, the parties appear to have demonstrated appropriate attitudes and discharged their parenthood responsibilities diligently.
(j) Any family violence involving the child or a member of the child's family.
The Court refers to the need to protect primary consideration discussed above.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
The Court refers to its discussion above in relation to the interim ADVO.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is a significant risk that if the Court were to accede to the mother’s interim proposal that the child live with her, or in the alternative, spend time with her as proposed by her, further proceedings in this Court would ensue.
m) Any other fact or circumstance that the Court thinks is relevant.
Not applicable.
Parental Responsibility
Neither party seeks an express order relating to parental responsibility.
By reference to the Court’s discussion above under the meaningful relationship primary consideration, including the apparent present fracture of the child’s former meaningful relationship with the mother, it will not be in the best interests of the child to be subject to an equal time shared care arrangement, and nor will an order that the child spend substantial and significant time with the mother be in her best interests.
Summary
At this interim stage, it will be in the best interests of the child, evaluating the above discussed considerations under section 60CC of the Act, to make interim orders as follows:
(1) That the child X born (omitted) 2005 (“the child”), shall live with the father.
(2) That the child spend time with the mother for 2 hours each fortnight on a Sunday, at the mother’s residence, provided that the child’s brother Mr J, born (omitted) 1999, is present with the child and the mother.
(3) The father shall take all reasonable steps to ensure that Mr J attends with the child during the child’s time with the mother, as referred to in the above order.
Spousal Maintenance
In Kruger & Kruger [2017] FCCA 2124, Altobelli J stated:
11. In spouse maintenance applications, the Court must consider the right to spouse maintenance that is set out in s.72(1) of the Act:
(1) A party to a marriage is liable to maintain the other party, to the extent that the firstmentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) 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
12. Section 74(1) of the Family Law Act states:
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.
13. Section 75 of the Act sets out matters that the Court shall take into account in a Section 74 application. In this regard, s75(2) states:
The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
14. It should be noted this is not an application for urgent spousal maintenance under s77.
15. The general powers of the Court in applications such as this are set out in s80(1) of the Act:
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
16. In Bevan & Bevan (1995) FLC 92-600, the Full Court of the Family Court of Australia outlined the four general principles (at 81, 982) that an award of spousal maintenance requires:
a) a threshold finding under s.72;
b) consideration of ss.74 and 75(2);
c) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
d) discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle.
17. In Curnow & Curnow (unreported, Family Court of Australia, Ellis, Kay and Moore JJ, 28 April 1997), the Full Court of this Court held that even where the threshold has been met under s.72 of the Act, an obligation to pay spousal maintenance only arises if the party from whom the payment is sought is reasonably able to maintain the other party.
18. Another useful decision is the Full Court’s decision in The Marriage of Mitchell (1995) 19 FamLR 44, commencing at 59. There, the Full Court noted:
59. Thus, the question whether the applicant can support herself "adequately" is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s 75(2) and more specifically the paragraphs of that subsection identified above.
Nor is that question to be determined upon a subsistence level, as earlier cases under State maintenance legislation suggested. In In the Marriage of Nutting (1977) 4 Fam LN 7 ; [1978] FLC 90-410 at FLC 77,094 Lindenmayer J said:
By s72 of the Act, the husband is liable to maintain the wife only to the extent that she is incapable of supporting herself adequately, and again "adequately" imports a standard of living which is reasonable in the circumstances, including the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them.
19. At page 62 in the Full Court’s decision in Mitchell, the Court made the following important observations:
62.Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work-force for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an increasingly skilled work-force with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the court must take notice and apply in a realistic way. In this regard, we refer to the detailed analysis of comparable problems in Canada by the Supreme Court of Canada in Moge v Moge (1992) 43 RFL (3d) 345 and the discussion by this Full Court in Best, supra , esp at Fam LR 962; FLC 80,295 and the reference in those cases to the "feminisation of poverty" and to some of the numerous articles upon that subject both here and overseas to that time. For useful articles discussing the judgment in Moge see also Toward an Equitable Distribution of Resources: Support after Moge and Moge (1994) 16 Advocates Quarterly 452 and Equality and Support for Spouses (1994) 57 Mod LR 681.
Moge, supra , was drawn to counsels' attention in the course of the appeal but neither presented argument about it. We are conscious of the circumstance that the Supreme Court emphasised that its decision was predominantly a matter of statutory interpretation of the relevant provisions of the Canadian Divorce Act 1985 and in these circumstances we think it would be inappropriate in this appeal for us to analyse the decision itself further. There is, however, one feature of that decision which we think it is relevant to highlight — the application of the doctrine of judicial notice.
The majority judgment delivered by L'Heureux-Dube J recorded a range of studies and commentaries concerning the general economic impact of divorce upon women. Her Honour said at 393-4:
Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon, the existence of which cannot reasonably be questioned and should be amenable to judicial notice. More extensive social science data are also appearing. Such studies are beginning to provide reasonable assessments of some of the disadvantages incurred and advantages conferred post-divorce (see, for example, the study by Kerr [An Economic Model to Assist in the Determination of Spousal Support, Paper prepared for the Department of Justice and Status of Women Canada 1992]). While quantification will remain difficult and fact-related in each particular case, judicial notice should be taken of such studies, subject to other expert evidence which may bear on them, as background information at the very least.
(---)
In all events, whether judicial notice of the circumstances generally encountered by spouses at the dissolution of marriage is to be part of the trial process or whether such circumstances merely provide the necessary background information, it is important that judges be aware of the social reality in which support decisions are experienced when engaging in the examination of the objectives of the Act.
We agree with these general propositions. Like Canada, Australia has a body of research indicating that mothers who are the primary carers of dependent children inevitably drop out of the paid work-force and consequently suffer financial deprivation which is exacerbated by marriage breakdown: see the Australian Institute of Family Studies publications, McDonald (Ed) (1986) Settling Up: Property and Income Distribution on Divorce in Australia; Funder Harrison and Weston (1993) Settling Down: Pathways of Parents After Divorce. In our view there are significant advantages to the court being able to take judicial notice of research concerning the economic consequence of marriage and its dissolution.
We also agree with the caution contained in Moge against judicial notice being perceived as a substitute for evidence in the particular case. In this regard, we note that in In the Marriage of Patsalou (1994) 18 Fam LR 426 ; [1994] FLC 92-580 , the Full Court approved of the trial judge making reference in her reasons for judgment to relevant literature — in that case, on the subject of the effect of inter-spousal violence upon children. The Full Court rejected a complaint that the parties should have been invited to make submissions on this body of research. As we see it, the trial judge in that case effectively took judicial notice of the research as a form of "background information" within which to then construe the evidence on the record. We recommend a similar approach in spousal maintenance cases.”
Section 75 (3) provides:
“In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”
Threshold finding under section 72
Disregarding, pursuant to s75(3) of the Act, the wife’s family tax benefit ($56 per week as set out in the wife’s Financial Statement) and Newstart allowance, $686 per fortnight, as informed by the wife to the Court at the interim hearing, the Court is satisfied, on the material before the Court, that the wife is unable to support herself adequately by reason of her depression and anxiety (albeit treated to some extent by medication; see the psychiatric report of Dr S); her absence from the workforce for a very significant time (including her limited previous experience in the workforce); her serious stuttering disability; and poor self-esteem.
The Court is satisfied as to the threshold issue. In passing, the Court notes that the husband did not seriously contest this issue at the interim hearing.
Quantification of the wife’s needs
The Court finds that the wife’s weekly needs total about $745 per week ($445 as per her Financial Statement (deducting $30 per week for children’s activities), in addition to her weekly rental obligation of $300). The Court has disregarded the wife’s family tax benefit and Newstart allowance.
Lack of financial disclosure by husband?
The wife submits that the husband has failed to make adequate financial disclosure. She refers to her solicitor’s letter dated 6 April 2017, annexed to her affidavit, requesting specific financial disclosure by the husband.
The two page handwritten document, Exhibit E, sets out the wife’s contentions as to the financial records not produced by the husband pursuant to the letter of 6 April 2017.
In the letter of 6 April 2017, inter alia, a request was made to the husband to, inter alia, produce all bank account statements, including credit card statements, since 1 January 2016.
As to (omitted) account (omitted), the husband stated that that account was closed in November 2016, when the (omitted) Bank account (omitted) was opened. The wife, in Exhibit E, complains that bank statements for this account from November 2016 to date are missing. The Court will put this complaint to one side accordingly.
As to (omitted) account (omitted) (credit card account), the husband stated that he had not yet obtained those bank statements. The wife, in Exhibit E, complains that bank statements from March 2017 to date are missing. Accordingly, by reference to the letter of 6 April 2017, and the request for bank statements for the period since 1 January 2016, it would appear the husband has failed to produce bank statements for this account from March 2017 to date.
As to the (omitted) Bank account (omitted) ((omitted)), the wife complains, in Exhibit E, that bank statements for this account from April 2017 to date are missing. (The Court notes annexure G to the husband’s affidavit ((omitted) Bank bank statements for the period 1 January 2017 to 31 March 2017) and Exhibit F ((omitted) Bank bank statements for the period 14 November 2016 to 31 December 2016)).
In submissions, the husband conceded that the most critical documents not produced related to bank statements from (omitted) Bank bank account (omitted); it would appear, as contended in Exhibit E, that the husband has failed to produce bank statements for this account from April 2017 to date.
The Court observes that it would have been relevant to observe from the missing bank account statements, inter alia, the nature and extent of any discretionary expenditure incurred by the husband.
From Exhibit E, it can also be seen that the wife contends that the husband has failed to produce certain business activity statements for his business. The letter dated 6 April 2017, in item 4, had requested copies of the last 4 business activity statements lodged by the husband. That letter had also requested in item 5, in respect to any partnership, that the husband produce, inter alia, the last 4 business activity statements lodged by the partnership.
Exhibit E contains a notation that the husband asserts through his solicitor that he has not filed business activity statements since September 2016. This notation was confirmed in oral submissions by the husband. The husband submitted that all income received by the (omitted) business was found in the bank statements. However, as the Court pointed out to the husband’s solicitor at the interim hearing, not all requested bank statements for the business have been produced by the husband.
Further, the contention of the wife in Exhibit E was that the husband had not produced any business activity statements for the period prior to July 2016 (the Court interpolates here that these business activity statements would relate to the former partnership between the parties, (omitted)); this contention was not the subject of any counter submission by the husband.
As to item 5 in the letter of 6 April 2017, and referred to in Exhibit E, it is noted that the business (omitted) is not a partnership, trust or company, so that item 5 cannot apply to that business.
Exhibit E, item 5, regarding the request in the letter dated 6 April 2017 that, “If there is a partnership… in which your client has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership…”, states that only 2 documents, the 2015 and 2016 partnership tax returns, were disclosed for the parties partnership trading under the name “(omitted)”. This was not disputed by the husband.
The husband’s failures to disclose, as discussed above, in particular the failure to disclose relevant business activity statements and copy bank statements, has resulted in the wife being unable to test certain of the husband’s financial assertions in his financial statement and affidavits; in particular, they have prevented the wife from testing the husband’s assertions as to his average weekly income and personal expenditure, and the veracity of the husband’s alleged expenses in his (omitted) business.
The Court is of the view that the husband has deliberately failed to make adequate financial disclosure, in particular pursuant to the letter requesting financial disclosure of the husband of 6 April 2017. In the circumstances, pursuant to legal principle (see for example, the decision in Weir and Weir (1993) FLC 92-338) the Court should not be unduly cautious about making findings in favour of the innocent party, here the wife.
Husband’s capacity to pay?
The husband contended in his affidavit that at the end of January 2017 he fell 4m from an upper floor whilst working on a job, suffering injuries, including injuries to his back, following which he could not work for about 2 months. He asserts that he is suffering from severe pain radiating from his lower back and down his left leg, and is unable to work each day. He does not annex any medical evidence in support of these assertions to his affidavit. The husband further states in this context that his son, Mr J, who also works with him in the (omitted) business, also stopped working, as he does not have sufficient experience, and the husband is unable to supervise.
The husband seeks to explain, in the context of his assertion that he was unable to work for about 2 months from the end of January 2017, by reason of the alleged injury, that a business which provides work to the husband called (omitted), and with whom the husband asserts he has had a long relationship with, and because “I am struggling financially”, paid an advance progress payment to him 6 March 2017 in the amount of $15,000. The Court notes that this payment of $15,000 is indeed shown as a credit in the (omitted) Bank bank account of (omitted) on 6 March 2017.
However, on a perusal of the bank statements from the (omitted) Bank bank account for the business (omitted), annexure G to the husband’s affidavit (statement period from 1 January 2017 to 31 March 2017), noting again the husband’s assertion that he was unable to work for about 2 months from the end of January 2017, together with his son, being the months of February and March 2017, there are revealed various debit purchases of (omitted), which remain unexplained by the husband. Further, for this three month period, the (omitted) Bank bank statements show cash withdrawals of about $14,020.
The Court also notes from the above bank statements that there are shown total debits for (omitted) and (omitted) purchases in the amount of about $824 (about a 13 week period; an average of about $63 per week). It is not without relevance, in this context, that the husband told the psychiatrist, via telephone, on 18 April 2016, that he daily consumed ½ to 1 litre of wine himself. Further, annexure G reveals not insignificant expenditure by the husband in relation to a trip to (omitted) in (omitted) 2017 and related expenditure.
In Exhibit F, bank statements for the (omitted) Bank bank account (omitted), from 14 November 2016 to 31 December 2016, show cash withdrawals for the period total $4,500, there is expenditure relating to a (omitted) flight to (omitted) and (omitted) expenditure of about $2,496 in November 2016, liquor purchases during the period of some $161, (omitted) purchases for $470, and solicitor’s fees of $2,000 paid on 21 December 2016.
Again, the Court notes the husband’s statement to the psychiatrist on 18 April 2016 that he was an excellent provider, earning a lot of money, and buying the children sound brand named items.
All the above cash withdrawals are not explained with any particularity in the husband’s affidavits.
The husband asserts in his affidavit that his current financial circumstances are poor. He refers to certain late payments by him for certain outstanding invoices. He refers to an outstanding debt due to the ATO. He refers to his business’ debt, annexing an invoice, as at 30 April 2017, to his last affidavit, to (omitted) and (omitted) in the sum of about $53,000 (the Court interpolates here that in the husband’s affidavit filed 15 December 2016 he refers to the partnership business having entered into a payment arrangement with (omitted) to pay off the account, then outstanding in the sum of about $29,300).
The husband refers to having approached the (omitted) banks, in April 2017, due to his asserted “difficult financial circumstances”, for a business loan in the sum of $50,000, which was refused by the banks.
The husband refers to his ongoing expenses including home mortgage, and utilities.
The wife refers to the husband’s evidence that for the financial year ending 30 June 2016, the gross partnership business income was about $283,000, with the net income being some $78,000. The wife refers to the husband’s evidence, relating to the purchase of motor vehicles for the two eldest children, and that the partnership business was able to pay some $38,700 from partnership funds for the eldest child’s car; and the partnership was able to pay some $30,000 for the middle child’s car from partnership funds, albeit that those funds had been originally set aside for payment of an outstanding account with (omitted).
The wife also refers to the husband’s statement to the police on 4 November 2016 that he earns about $2,500 per week, or some $130,000 per annum.
The wife also submits that the husband’s belated filing of his affidavit on 31 May 2017, containing financial assertions, resulting in the wife being at a disadvantage in disproving these assertions, adds weight to her submissions relating to the husband’s failure to make adequate financial disclosure. There is some force to this submission.
In submissions, the husband contended that the Court could probably infer that the husband could enter into a payment arrangement with his $53,000 debt to (omitted), but that this is an expense the husband is not meeting presently.
On the material before the Court, discussed above, and noting the husband’s failure to make relevant financial disclosure, the Court does not accept the husband’s assertions that he is struggling financially, or that the (omitted) business is in dire financial crisis.
The Court is of the view, taking into account, in particular, the husband’s failure to make relevant financial disclosure, his not insignificant discretionary expenditure as revealed in (omitted) Bank account (omitted), his statements to the police and the psychiatrist in relation to his favourable financial circumstances, the husband’s unexplained purchase of work materials during February and March 2017, the pre-separation financial history of the parties involving the (omitted) business’ net income usually meeting the financial needs of the family, and taking a not unduly cautious approach, that the husband probably has a capacity to pay the wife $200 per week.
The Court has considered relevant matters under section 75(2) of the Act. The Court has previously referred to the wife’s mental health issues to which she receives treatment, her stuttering disability and low self-esteem, and her minimal previous time in the workforce. Her prospects of obtaining employment, even if she should be successful in completing the TAFE course, should be regarded as fairly low.
In relation to the husband, again, the Court has serious doubts as to his contentions in relation to his alleged reduced work capacity; it would appear that the husband has the capacity to continue to operate his (omitted) business. (In this context, it is not without relevance that in paragraph 13 of the husband’s affidavit he states that during the marriage the nature of his work was such that he did not work every day of each week; he stated that he worked when work was available, and on occasions he only worked up to 3 days in the week, however he states that during the marriage he worked regularly).
The Court notes that the youngest child lives with the father and he financially maintains her. The eldest child works part-time and is paid $35 per hour, however it would appear that the husband assists this child financially with household expenses. The middle child works in the (omitted) business and is reliant for his financial maintenance on its operation.
The Court takes into account the wife’s primary care of the children during the relationship, enabling the husband to work as a (occupation omitted), and also notes the wife’s administrative assistance in the (omitted) business. It takes into account the length of the parties relationship for over 16 years, again the wife’s primary care of the children, and that substantially during the relationship the wife did not work in paid employment (separate from the (omitted) business) which has likely contributed to her present fairly low employment prospects.
The Court should add that it is not satisfied that the husband’s contended average weekly income as stated in his Financial Statement filed 15 December 2016, $810, is accurate, and, noting the court’s discussion above, is likely understated.
The husband, the Court further notes, has not included the eldest child’s casual income, in the above Financial Statement. He has included in his total average weekly personal expenditure not only his own but also the children’s weekly expenses (see Part N) without indicating whether these expenses are defrayed by the eldest child’s casual income or the middle child’s income.
The Court also notes in this context that for the financial year ending 30 June 2016 the husband’s own taxable income “from the distribution under the partnership” was $42,067 ($809 per week before tax; about the same amount as stated for the husband in his above Financial Statement), being quite separate to the wife’s taxable income for the same period of $34,152, also having being derived from a distribution under the partnership. Yet the wife has not enjoyed the benefits of any income from the (omitted) business post-separation, with its benefits being enjoyed by the husband and children in her absence.
On the material presently before the Court, the Court is not satisfied that its proposed order for interim spousal maintenance should be backdated as sought by the wife, the Court not being satisfied that the husband could financially meet such a backdated proposed order, necessarily involving a not insignificant lump sum.
Interim property
The wife seeks an interim property order in the sum of $25,000 “towards her costs and expenses”.
The Court is not persuaded that it would be appropriate, just, or proper to make the above proposed order.
Taking into account the above proposed spousal maintenance order, the Court is not persuaded, on the material before it, that the husband could meet such a proposed order.
There is insufficient evidence before the Court to justify the Court making the proposed injunctive relief as sought by the wife in proposed order 15 of Exhibit A.
I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 14 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Consent
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Remedies
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Procedural Fairness
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