Lamport and Lamport
[2008] FMCAfam 45
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMPORT & LAMPORT | [2008] FMCAfam 45 |
| FAMILY LAW – Property – children. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 62G |
| Applicant: | MS LAMPORT |
| Respondent: | MR LAMPORT |
| File Number: | CRC 29 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 November 2007 |
| Date of Last Submission: | 23 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestly |
| Solicitors for the Applicant: | Jane Adams Lawyer |
| Solicitors for the Respondent: | In Person |
ORDERS
That upon the delivery to the husband of a transfer executed by the wife of the Esanda shares owned jointly by the parties then the net proceeds of sale be disbursed equally between the parties but before the payment to the husband there shall be deducted from his share the sum of $4810.30 which shall be paid to the wife.
In the event that either party fails to sign any necessary document or authority required to give effect to these orders and the orders of 7 June 2007 then a Registrar of the Federal Magistrates Court is authorised to sign such document in the place of the party who fails to do so.
The orders made until further order on 11 May 2007 are discharged.
The children D born in April 1992 and S born in April 1994 are to live with the mother (also referred to as the wife).
The child D is to spend time with the father (also referred to as the husband) on either the Saturday or the Sunday of each weekend from 9.00 am to 5.00 pm with pick up and drop off to be effected at Bxxx Park.
For the purpose of giving effect to Order (5) above the mother is to advise the father by text message by 5.00 pm on the Wednesday of each week as to whether the child D will spend time with the father on the Saturday or the Sunday of that week.
Pursuant to Section65DA(2) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lamport & Lamport is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CRC 29 of 2007
| MS LAMPORT |
Applicant
And
| MR LAMPORT |
Respondent
REASONS FOR JUDGMENT
The applicant and the respondent have three sons, the eldest of whom, W, is now an adult. These proceedings concern the two younger boys, D, born in April 1992 and S born in July 1994. They currently live with their mother.
The father seeks orders that the children should spend time with both parents equally, week and week about during the school term and for half of the school holidays with each parent. The mother, on the other hand, asks the court to make orders that the children should live with her and should spend time with their father as recommended in the Family Report dated 28th August 2007:
(a)that D continues to spend time with his father as he currently does in accordance with his wishes; and
(b)that S should be able to choose whether he spends time with his father and D.
The mother also seeks orders arising out of previous property proceedings between the parties, concerning some Esanda shares which were not dealt with in the earlier proceedings. Those orders are:
(1)That upon delivery to the husband’s solicitors of a transfer executed by the wife of the Esanda shares owned jointly by the parties then the net proceeds of the sale be disbursed equally between the parties but before the payment to the husband there shall be deducted from his share the sum of $6156.92.
(2)
In the event either party fails to sign any necessary document or authority required to give effect to these orders and the order of
7 June 2007then the Registrar of the Federal Magistrates Court or Family Court is authorised to do so.
It does not appear to me to be necessary to authorise a Registrar of the Family Court, as the Federal Magistrates Court has no shortage of Registrars, at least so far as I am aware.
Background
The parties were married in October 1988 and separated in November 2006. Since the separation, the eldest son, W, has lived with his father, and the two younger sons have lived with their mother.
The two younger boys have intellectual disabilities. D is moderately intellectually handicapped. He has, according to the mother’s affidavit of 23rd January 2007, Attention Deficit Hyperactivity Disorder, learning difficulty and OCD. S has mild intellectual disability. He has, again according to the mother’s affidavit, Attention Deficit and oppositional Defiance Disorder.
On 11th May 2007, this court made orders by consent until further order providing that:
(1)The two boys were to spend either Saturday or Sunday of each weekend with their father, from 9.00 am to 5.00 pm;
(2)The boys were to live with the mother; and
(3)The parties were to list the former matrimonial home for sale.
That same day, Donald FM made orders that the parties were to attend family dispute resolution in respect of the two boys. His Honour also ordered a Family Report under the provisions of s 62G of the Family Law Act 1975 (Cth). That Report was prepared by a Family Consultant on 28th August 2007.
The parties attended a conciliation conference on 7th June 2007. Both parties were legally represented at that stage. Although the children’s issues were not resolved, the parties resolved the financial matters between them, although it appears that the Esanda shares were overlooked. On 7th June 2007 the parties entered into consent orders to the effect that:
(1)the former matrimonial home would be sold and the net proceeds of sale would be distributed:
(a)as to $40,000.00 to the wife’s father; and
(b)the balance would be divided equally between the parties.
(2)The husband’s solicitors would prepare the contract for sale.
(3)The parties would otherwise retain sole right and title to any property in their respective name or possession, except for some furniture which was to be collected by the wife.
(4)The husband would be responsible for making the mortgage payments and paying the rates until the property was sold; and
(5)The Registrar of the Federal Magistrates Court at Lismore was appointed to sign any documents on behalf of any party who failed to do so.
The former matrimonial home was sold in about September 2007.
The issue of the children remained unresolved.
The father’s solicitor filed a Notice of Ceasing to Act on 19th October 2007.
Issues
The mother maintains that the two boys have, since the parties separated, continually expressed the wish not to have contact with their father. She claimed in her affidavit of 2nd November 2007 that the father had been violent towards the children during the marriage and she feared that they were at greater risk from him than other children would be due to their intellectual disabilities.
The mother also claimed that no agreement had been reached with the father about the amount of money that he would reimburse her for the mortgage payments that he was required to meet.
The father filed an affidavit on 22nd October 2007 admitting being “verbal abusive and physical to the children only”[1] but claiming that he has attended and anger management course and a course called Life Skills for Blokes. He claims that the mother has refused to allow the children to spend time with him.
[1] Affidavit paragraph 16
The parties’ adult son W deposed in an affidavit filed on 22nd October 2007 that the mother was “sarcastic” towards him. He deposed that his father had changed since the parties separated and wanted to spend one day a week with his two younger brothers.
Evidence
Both parties gave oral evidence. The mother told the court that the two boys had the opportunity to go to Sxxx in Sydney that weekend for a period of 12 days. To his credit, the father immediately said that he had “no problem about the kids going to Sxxx”.
In cross –examination, the mother admitted that she had told the writer of the Family Report that she had occasionally lost her temper with the children. The mother also agreed that, after the father had returned from Sydney after having some dental work done she had accused him of having an affair and said that she had no more trust in him.
The mother denied that she had ever been involved in prostitution.
She recalled consulting her solicitor about the fact that the boys were frightened of seeing their father and her solicitor wrote to say that the father could see the children after he had completed an anger management course.
The father gave oral evidence and was cross-examined by Mr Priestley of counsel, who appeared for the mother. He admitted that at the time of the hearing he was living out of his car. He said he had been seeing the boys D and S one day each weekend. S had been a bit reluctant to see him but now always attends. However, S did not wish to stay overnight with his father.
The father admitted that in the past he had been physically abusive to the boys. He said that he had done courses relating to parenting and anger management was still going to them.
As to the property settlement between the parties, the father said that they were made by consent. The Esanda shares, which were jointly owned, were never mentioned. The father disputed the amount owing in respect of the mortgage payments. He said that the mother should transfer the shares to him and he would pay her the sum of $2,500.00. He said that the amount remaining for distribution in the trust account of Macdonald and Macdonald, solicitors, was about $36,000.00.
The Family Report
A Family Consultant prepared a Family Report as ordered by the court on 11th May 2007. The Family Consultant interviewed both parents, the two children and their adult brother on 15th August 2007. A telephone interview was also conducted with the Principal of Txxx School on 23rd August 2007.
I received the report into evidence at the hearing on 23rd November 2007. The Family Consultant was not required for cross-examination.
The child D told the Family Consultant that he liked spending time with his father but would not want to stay with him overnight, as he said that he did not feel safe. He explained that this was because his father had “threatened, hit and kicked him in the past and he is afraid that he may do this again”.[2] He expressed the opinion to the Family Consultant that his father had not changed, because he still yells at the mother.
[2] Family Report, paragraph 53
The younger boy, S, told the Family Consultant that he did not want to spend time with his father “because of what he has done”.[3] He perceived that his brother D was abused the most and described seeing the father slamming D against a wall, making his nose bleed. He was not concerned about not seeing his elder brother W if he did not see his father.
[3] Family Report paragraph 57
Both boys had positive perceptions of their mother as nice and not behaving abusively to them.
The parties’ eldest W told the Family Consultant that he believed his father to have changed since his parents separated. He said that this was due to efforts made by his father to seek help with his anger.[4] W took the view that his father was receiving help and the boys needed to have contact with him so that they had the opportunity to see how their father had changed and rebuild their relationship.[5]
[4] Family Report paragraph 60
[5] Family Report paragraph 62
The Family Consultant observed the boys with each of their parents. She reported a different reaction by each of the boys to their father:
Mr Lamport’s conversation with the boys was appropriate for their age and level of development and the circumstances. D smiled at his father throughout the observation, maintained eye contact and readily engaged in conversation initiated by
Mr Lamport. S looked down and avoided making eye contact with his father and gave minimal responses to his father’s attempts to engage him.[6]
[6] Family Report paragraph 63
The Family Consultant observed the boys with their mother. She described them as “calm and relaxed in their mother’s company”.[7]
[7] Family Report paragraph 64
The children’s high school principal was interviewed over the telephone. The Family Consultant reported him as saying that:
Both D and S appear relaxed and happy at school. He has noticed a marked improvement in D in particular over the past year. D used to be an anxious nervous child with few friends and over the past year his confidence has improved significantly and he is now socialising with other children and is happy interacting with his peer group.[8]
[8] Family Report paragraph 65
The Family Report concludes that both the mother and the children appeared to have been victims of family violence from the father and that:
They continue to suffer the effects of this and ongoing exposure to Mr Lamport’s ongoing difficulties with anger management.[9]
[9] Family Report paragraph 66
The Family Consultant expressed the view that the father had an “easier relationship” with D who was the more timid and less challenging of the two boys. She also warned:
Mr Lamport responded with anger to S expressing his views, and it is likely that this will happen again considering S’s reluctance to spend time with his father, which may place S at increased risk of abuse.[10]
[10] Family Report paragraph 68
She went to express the view that the father’s proposal for shared care appeared inappropriate:
Given the history of family violence and abuse directed at the children, along with limited parenting skills, high levels of conflict between the parents, continuing exposure of the children to his anger and the children’s expressed wishes.[11]
[11] Family Report paragraph 69
The Report expresses the view that both children appear happy with their mother and there are indications that both they and she are benefiting from not living in an abusive environment.
The Family Consultant made this specific recommendation about the younger child, S:
S is angry with his father for past and current abusive behaviours and has made it clear that he does not wish to spend time with him. It is the report writer’s opinion that Court Orders should take into account S’s views and his need to be allowed to exercise choice in the face of his father’s abusive behaviour by choosing not to spend time with him.[12]
[12] Family Report paragraph 71
On the other hand, the situation relating to the older boy, D, is somewhat different:
D appears to have a significant attachment to his father and to enjoy his company. D did not display any fear of his father during the observation but was clear that he felt himself at increased risk of abuse if he were to remain overnight with him. It appears that Mr Lamport poses less risk to the children than he did when the parents resided together and that in D’s view the benefits derived from spending time with his father currently outweigh the risk of him being exposed to his father’s anger under the current arrangements.[13]
[13] Family Report paragraph 72
The Family Consultant was not required for cross examination and the Family Report is unchallenged.
There was no other evidence about the children.
As to the property proceedings, the parties relied on the following evidence:
(a)Letter dated 8 October 2007 from the husband’s then solicitor to the wife’s solicitor (Exhibit 1);
(b)Letter dated 15 October 2007 from the wife’s solicitor to the husband’s solicitor (Exhibit 3); and
(c)
Settlement adjustment sheet attached to letter dated
1 October 2007from Simply Conveyancing to the wife’s solicitor (Exhibit 4).
In the letter forming Exhibit 1, the husband’s solicitor advised that the husband had missed seven mortgage payments, totalling $1400.00. By adding that amount to the amount of $163.30, being the rates outstanding at settlement, she arrived at a total of $1563.00 which, when divided by two, showed the amount owing by the husband to the wife as $781.65.
In the letter that comprises Exhibit 3, the wife’s solicitor calculated the amount owing by the husband at $1,073.50. This figure has been arrived at in this way:
We calculate that Mr Lamport owes to our client half the mortgage amount from 7 June ($166,677.00.40DR) to payout of the loan on 25 September ($168,824.28DR), a total amount of $2,147.00. Therefore we conclude that Mr Lamport owes our client the sum of $1,073.50.
The settlement adjustment sheet that comprises Exhibit 4 shows an amount of outstanding rates of $163.25, which was adjusted as paid at settlement. The outstanding balance was then paid to the Coffs Harbour City Council.
Submissions
Mr Priestley, who appeared for the mother, submitted that the father in effect agreed to his client’s proposals. The two children see their father one day each week. The children do not want overnight contact and, in any event, there are no facilities for overnight contact.
As to the amount to be paid to his client, Mr Priestley referred the court to Order 4, made by consent on 7th June 2007, which says:
That pending sale the husband be responsible for payment of the mortgage and rates on the property.
Thus, Mr Priestley submitted, the figure should not be halved because of the terms of the order.
The husband made no submission about parenting orders but told the court that the mortgage had been in arrears and, when he went to the bank, the bank found it very hard to work the amount for arrears of interest, because it was a variable loan.
Conclusions
The parties agree that the value of the Esanda shares is $2500.00 each. They agree that they have an equal entitlement. They each put that figure in their financial statements.[14] This is why the husband submitted that he should pay the sum of $2500.00 to the wife out of his share of the proceeds of sale.
[14] Wife’s financial statement filed on 16 February 2007; husband’s financial statement filed on 20 April 2007.
I am satisfied that the husband should pay to the wife the sum of $4810.30 to finalise the property matters between them. This amount is calculated as follows:
(a) Half the value of the Esanda shares $2500.00
(b)Amount of mortgage from 7 June to
payout date (as per Exhibit 3) $2147.00
(c)Rates (Exhibit 4) $163.30
TOTAL$ 4810.30
When making orders in relation to children, the court must regard the best interests of the children as the paramount consideration (Family Law Act 1975, s.60CA).
The primary considerations in determining what is in the children’s best interest are:
(a)the benefit to the child in having a meaningful relationship with both parents; and
(b)the need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence.[15]
[15] Family Law Act 1975, s 60CC(2)
There are additional considerations set out in s.60CC(3) of the Act, including the views of the children and the nature of the children’s relationship with each parent.
In making the orders that I propose to make, I am conscious of the need to protect the children from violence and abuse. The Family Report makes it clear that the children are not in abusive relationship when they live with their mother, and they relate well to her. There has, however, been a history of abuse in the children’s relationship with their father. Notwithstanding the fact that the father appears to have made considerable progress by attending anger management courses and other courses, there is a serious concern that the children could be subject to violence in the care of their father. Neither child wishes to live with the father, and neither child wishes to have overnight contact.
The children’s intellectual disabilities make them more vulnerable rather than less, in my view.
In any event, the father had given evidence that he is living out of his car. He is not in a position at this stage to care for the children overnight.
In these circumstances, the only realistic proposal is for the children to live with the mother.
The father wishes to spend time with the children. The older boy, D, appears from the Family Report to have a positive relationship with his father and appears to have gained from the current arrangements of one day each a week. D does not wish to have overnight contact with his father and the father is not in a position at this stage to provide accommodation overnight.
I propose to make an order that will allow D to continue to spend time with his father as he has been doing. I believe this to be in line with the recommendation in the Family Report. It appears to me that an order in similar terms to the Order 1 made by consent until further order on
11th May 2007would be appropriate.
The child S is younger. He is only 13 years of age. He has mild intellectual disabilities. He has made it clear that he does not wish to spend time with his father and is angry at him because of his previous abuse. The Family Report warns that S may be at risk of abuse from his father’s anger arising from his reluctance to spend time with his father and his apparent willingness to express this view.
In these circumstances, I am not satisfied that it is in this child’s interest to make any order that he should spend time with his father. It would impose an unfair burden on a 13 year old child with a mild intellectual disability to require him to make a choice about spending time with his father. He has already made it clear that he does not want to do so.
It may well be the case that the child’s attitude towards his father may soften, especially if he sees that his elder brother has developed a good relationship with the father. The father needs to act in a way that will reassure S that he will not come to any harm if he does see his father.
I do not propose to make any order at this stage that the child S is to spend any time with the father.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 22 January 2007
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