Lesley and Atkinson and Ors (No 2)

[2020] FamCA 240

FAMILY COURT OF AUSTRALIA

LESLEY & ATKINSON AND ORS (NO. 2) [2020] FamCA 240

FAMILY LAW – PROPERTY – Interim – Where the wife seeks the sale of the former matrimonial home – Where the husband seeks to retain the property on a final basis – Application for sale dismissed – Where the children spend substantial time with both parents – Where the current arrangements are in the best interests of the children – Orders made.

Family Law Act 1975 (Cth) ss 60B, 79, 114(e).

APPLICANT: Ms Lesley

RESPONDENT: Mr Atkinson

SECOND RESPONDENT: Ms B Atkinson

THIRD RESPONDENT: Mr C Atkinson

FILE NUMBER: CAC 1799 of 2019

DATE DELIVERED: 29 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE APPLICANT: Phelps Reid Foster Johnson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Breeze

SOLICITOR FOR THE RESPONDENT: Hughes & Co Lawyers And Conveyancing

COUNSEL FOR THE SECOND & THIRD RESPONDENTS: Ms Webb

SOLICITOR FOR THE SECOND & THIRD RESPONDENTS: Hughes & Co Lawyers And Conveyancing

Orders

IT IS ORDERED BY CONSENT

1. That these proceedings be heard in the Family Court of Australia sitting at Sydney.

IT IS ORDERED PENDING FURTHER ORDER

1. That during school terms the children X born … 2009 and Y born … 2014 live with the husband from after school on Friday in each alternate week until the commencement of school on the following Wednesday.

2. That at all other times during school terms, the children live with the wife.

3. That the children spend Mother’s Day with the wife and Father’s Day with the husband.

4. That the children spend time on their birthdays with the parent with whom they are not living from after school until 7pm.

5. That during the school holidays at the end of Terms 1, 2 and 3, in the absence of agreement, the children live with the husband for the first half of the holiday and with the wife for the second half.

6. That the weekend time pursuant to Order 2 resume on the first Friday after the commencement of the new school term.

7. That the application of the wife seeking the immediate sale of the property “F Property” is dismissed.

8. That the file be referred to a registrar for procedural directions, noting that the parenting matter will not be listed before a judge until the registrar is satisfied that the parties have made a genuine attempt to mediate the parenting issues with the assistance of a qualified family dispute practitioner.

9. That Order 13 made on 24 February 2020 for the appointment of an ICL in ACT is vacated.

10. That pursuant to section 68L(2) of the Family Law Act 1975 (Cth) an independent children’s lawyer be appointed on behalf of the children X born … 2009 and Y born … 2014 AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

11. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

12. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

13. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

14. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lesley & Atkinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1799 of 2019

Ms Lesley

Applicant

And

Mr Atkinson

Respondent

And

Ms B Atkinson

Second Respondent

And

Mr C Atkinson

Third Respondent

REASONS FOR JUDGMENT

1. Proceedings relating to parenting and property settlement between Ms Lesley (“the wife”) and Mr Atkinson (“the husband”) were instituted in the Federal Circuit Court (“FCC”) at Canberra in September 2019.

2. The husband’s parents have been joined as second and third respondents to the proceedings. They seek to enforce a share farming agreement entered into between them on the one hand, and the husband and the wife on the other, on 1 October 2010, by the payment to them of a substantial sum of money.

3. The parties separated finally in January 2019 when the husband left the family property “F Property”, leaving the wife and the two children, X aged 10 years and Y aged nearly six, living on the property. Thereafter they reached agreement about the time the children spent with the father which ultimately, at the time of hearing before me, was that the children spent five nights each fortnight with the father. 

4. On 3 April 2020, the proceedings were transferred to the Family Court of Australia (“Family Court”) at Canberra because they were considered complex and more appropriate to be dealt with in that Court.

5. On 3 April 2020, an application was made on behalf of the husband for Justice Gill to recuse himself from the proceedings. His Honour is the only judge who regularly sits in the Canberra Registry of the Family Court.

6. His Honour heard the application and delivered judgment ex tempore acceding to the application that he recuse himself and transferring the matter back to the Federal Circuit Court.

7. The judge of the Federal Circuit Court then, of her own motion, transferred the matter to the Family Court in Sydney.

8. The matter before me relates to the parties’ competing interim applications.

9. The wife seeks orders that:

   ·    The current parenting arrangements in relation to the parties’ two children, X and Y, be varied by reducing the time they spend with the husband.

   ·    Restrain the husband from moving back to the rural property of former matrimonial home, known as “F Property”.

   ·    Restrain the husband from being within 20 metres of the dwellings on the property.

   ·    Sell the property known as “F Property”.

   ·    Require the husband to move 61 head of livestock said to belong to his parents off F Property.

   ·    The parties sell the remaining livestock on F Property and apply the proceeds as specified.

   ·    The husband sell his motor vehicle and discharge the loan for the purchase of the vehicle, retaining any balance.

   ·    The husband provide the wife with “visibility internet banking access to his Commonwealth Bank accounts ending #…10 and #…92.

10. The husband, in his response to the wife’s Application in a Case, seeks orders that:

    ·    The proceedings be transferred to the Parramatta registry of the FCC.

    ·    An Independent Children’s Lawyer (“ICL”) be appointed for the children.

    ·    That Ms D be appointed as single expert to prepare a report in relation to parenting matters.

    ·    That the children live with each parent on a “week about” basis commencing on Wednesday after school.

    ·    That the parents both institute controls in relation to social media and internet use by the children.

    ·    That the wife provide specified disclosure in relation to financial matters.

    ·    That the husband remove the 61 head of livestock from F Property.

    ·    That the remaining livestock be sold and the proceeds applied to specified expenses.

    ·    That a single expert valuer be appointed to value F Property and the plant and equipment thereon.

    ·    That the parties be referred to mediation.

11. There appears to have been no attempt by the parties to confer and limit the issues, although it is clear that there are some areas upon which they are in broad agreement.

12. On 24 February 2020, a judge of the FCC made orders relating to a number of the matters in the competing applications.

13. The matters remaining to be determined are:

    ·    Venue

    ·    With which parent the children live

    ·    Present and historical valuation of F Property including water rights, plant and equipment.

    ·    The wife’s application for the immediate sale of F Property.

VENUE

1. The proceedings have been transferred to the Family Court of Australia on the motion of the judge of the FCC.

2. That decision having been made, the matter will not be transferred back to the FCC. The issue then is whether the matter should be heard in Parramatta or in Sydney.

3. After discussion, all parties agreed that the matter should be heard in Sydney.

VALUATION

1. After discussion, the parties agreed that the appointment of a single expert to conduct both a current and a historical valuation of “F Property”, its water rights and its plant is premature.

SALE OF F PROPERTY

1. The wife seeks the immediate sale of “F Property”.

2. That order is opposed by the husband.

3. The part of the Case Outline Document prepared by counsel for the wife which deals with this application is headed “Principles Relating to Interim Property Settlement and Submissions on Sale of F Property”.

4. If it is asserted that the power to order the sale of the property is to be exercised pursuant to s79 of the Family Law Act 1975 (Cth) (“the Act”), then in order to embark on that exercise, it would be necessary for the court to find that it was just and equitable to make the order.

5. There are a number of matters which mitigate against such a finding.

6. The husband, in his response to the Initiating Application, seeks orders that he be able to retain F Property.

7. Although it was submitted, on behalf of the wife, that there is no real likelihood that he will be able to retain the property, there are a number of factors which have not yet been determined that will affect that position.

8. “F Property” was a property owned by the second and third respondents who purchased it in 1997.

9. In 2006 when the second and third respondents were considering succession planning, they obtained a valuation of “F Property” at $1,134,000.

10. When “F Property” was transferred to the husband and the wife on 1 October 2010, the consideration for the transfer was $600,000.

11. There is no evidence of the value of “F Property” at the date of the transfer but it is reasonable to speculate that the value might have risen since 2006. Thus there was a gift or contribution by the second and third respondents to the acquisition of “F Property” of at least $534,000 and perhaps more.

12. There is no evidence of the value of F Property which makes any assessment of the significance of the contributions made by the husband’s parents to its acquisition impossible.

13. In addition, the second and third respondents assert that they owned a large proportion of the livestock on “F Property” and that they were never compensated for the money received by the husband and the wife for the sale of product from the farm.

14. The wife would argue that neither did the second and third respondents pay for the agistment of their livestock, yet another complication.

15. It is arguable that the second and third respondents, by allowing the husband and the wife to manage the livestock, made a significant contribution to the conservation and improvement of “F Property” in addition to their contribution to its acquisition.

16. I do not accept, having regard to the state of the evidence currently before me, that the husband has no arguable case to retain “F Property” and therefore I would decline to order that the property be sold as an exercise of jurisdiction pursuant to s79 of the Act.

17. There is power to make an order for the preservation of matrimonial property pursuant to s114 (e) of the Act but in order to make such an order it would firstly be necessary to be satisfied that it was necessary.

18. There is no evidence that any bank or other financial institution is threatening to take proceedings in relation to any arrears of mortgage or loan obligations.

19. There is no evidence that any other creditor is threatening to take any proceedings.

20. There is no evidence that the parties have any extraordinary level of debt.

21. It is not a matter of controversy that the property has been subject to extraordinary drought for some years and that there is no certainty that the rainfall which fell early in this year will be sustained.

22. This is not an optimum time to sell rural property.

23. I am not satisfied that it is necessary to sell “F Property” in order to protect the value of the asset.

24. The application will be dismissed.

PARENTING

1. For some time, since about January or February 2019, X and Y (“the children”) have been spending a block period of five nights each fortnight with the husband.

2. Both of the parents seek to vary that arrangement. The wife seeks to reduce the time the children spend with the husband to Wednesday afternoon from after school until 7pm and alternate weekends from Friday after school until Sunday at 5pm.

3. The husband seeks a week about arrangement with changeover on Wednesday afternoon.

4. The wife’s concerns are set out in her affidavit sworn 19 February 2020. They relate primarily to what could be broadly described as the husband’s lax parenting of the children.

5. These are interim proceedings and no findings of fact can be made in relation to matters that are in dispute.

6. Summarised, the wife asserts that the children have no routine or set bedtimes in the husband’s household; that they have frequent sleepovers including on school nights; that X is allowed to spend time in the company of older teenaged boys; that they are allowed to have access to media unsuitable for children of their ages including access to unsuitable media platforms and computer games.

7. The wife annexed to her affidavit two photographs posted by ten year old X on Instagram which the wife described as “provocative selfies”. That description is not inappropriate. The photographs are disturbingly pseudo-adult.

8. The wife asserts that the children are difficult to settle when they are returned to her care and resistant to rules relating to appropriate conduct. She asserts that X is defiant and aggressive and that Y has tantrums and “meltdowns”.

9. The wife deposed that X told her she had watched a video on TikTok of teenaged girls discussing menstruation and pregnancy. X told the wife “I did tell Dad and he just said if I kept looking at these things he would delete the app off the ipad”.

10. The wife deposed that Y is allowed to play a computer game which is rated 15+. Y is five.

11. The wife deposed that X told her that she had watch “porn” with older teenaged children of a friend of the father, V and Z.

12. The wife deposed that, in January 2020, X was distressed at changeover and finally told her “I think dad is doing something to me when I’m asleep”. X said, “I just get this funny feeling” and “He’s doing things, like those things that happened with Z. Sex things”. The wife understood X to be referring to pornography that Z had shown. The wife deposed:

    X then backtracked, saying “nothing happened” and “Dad said it is probably from the videos I’m watching on YouTube”.

13. The wife deposed that, at a later date, she asked X if she felt safe at her father’s house and X said that she did.

14. The wife deposed that X makes sexualised comments such as “I wonder how big his thing would be” when watching an innocuous film. X has made similar, unprompted comments over the past few months.

15. The wife deposed that X has said to her, on more than one occasion, “I keep getting that feeling, like I have to do a wee. Is that what sex is like. I freak out when I feel it. I feel sick in my stomach.”

16. The wife does not allege that the husband has acted in an inappropriately sexual manner towards X but rather that, in his care, she has been allowed to view age inappropriate material of a sexual nature and that she is psychologically distressed and confused by that exposure.

17. On 24 February 2020, Judge Hughes in the FCC made the following orders relevant to the present parenting issues by consent:

    PARENTING

    That without admissions and until further Order, each parent is restrained from:

    1.1Denigrating, blaming or speaking negatively in any way about the other parent to the children, or to anyone else, while the children are in their care. They are to use their best endeavours to ensure that no other person does so either;

    1.2Permitting the children to be in the care of Ms E or W unless the Father is present at all times they are in attendance;

    1.3Permitting either child from having sleepovers with V, Q or Z;

    1.4Discussing these Court proceedings, or the content of any document filed or tendered in the proceedings, with the children or with anyone else while the children are in their care;

    1.5Showing or otherwise allowing the children to have access to any Court documents filed in the proceedings or correspondence exchanged between the legal representatives;

    1.6Discussing with the children their proposals regarding parenting and property issues in dispute, including advising them of their preferences regarding their current or future arrangements;

    1.7Allowing either child to access Instagram, Tik Tok, Facebook or any other social medial platform;

    1.8Allowing either child to access ‘YouTube’ save for when the Father or Mother is watching it alongside them;

    1.9Allowing the children to access film, videos, online websites or video/computer games with a rating of M 15+ of higher or which are not rated;

    1.10Allowing the children to use screens or devices in their bedrooms or with headphones or earpods.

    2. That for the purposes of Order 1.7 to 1.10, each parent must take positive steps to meet his or her obligations under those Orders, including but not limited to deleting applications (YouTube, Instagram, TikTok and Facebook) and blocking access to those applications on all IT and entertainment devices in their homes or in their possession, installing parental controls such as PIN codes on all devices and updating the PIN code on a fortnightly basis, ensuring that the children are not provided with the PIN code, restricting permissible sites using parental control settings to restrict explicit content, limit Adult websites and limit content to PG 13 or G ratings only.

18. The husband, through his counsel, told the Court that he has complied with those orders.

19. The husband in his case raises concerns about the wife’s parenting, specifically that he has been told by X that the mother makes comments denigrating him to X. He also relies on statements made by the children, particularly X, expressing her desire to spend more time with him.

20. The primary consideration, stated in s. 60B of the Act, is to balance the desirability of the children’s having a meaningful relationship with both parents against the need to protect them from psychological harm.

21. In the present case, the parents agree that it is in the children’s interests to have a meaningful relationship with both of them.

22. They each point to concerns that the other is exposing the children to psychological or emotional harm. The orders which were made on 24 February  2020 are intended to address the risk of that harm continuing.

23. I accept that X has expressed a wish to spend more time with the husband. I also accept that the children are well aware of their father’s distress at being separated from them and they would be influenced by that distress.

24. The children are ten and five years old and their views, at this early stage of the proceedings, are not determinative.

1. The children have a good relationship with both of their parents.

2. There is no evidence of any practical difficulties in the children travelling between the respective homes of the parents.

3. Both parents complain of the behaviour of the other when they meet. The existing arrangement has the effect that the children are delivered to and collected from school. The diminution of time proposed by the mother would have the effect that the parents would be involved in changeovers on Wednesday evening and Sunday evening and that situation is to be avoided.

4. The concerns raised by the mother about the exposure of the children to inappropriate media content and inappropriate behaviours by older children when in the father’s care are matters of concern which will no doubt be explored in the substantive hearing. Until those issues have been ventilated and a determination made about them, it is not appropriate to extend the time that the children spend with the husband.

5. The parenting arrangements will remain as they have been for the past year.

6. Neither parent made submissions about school holidays. The husband seeks an order that school holidays be equally shared. The wife seeks no order in relation to holidays.

7. In order to save the parties having to come back to the Court if there is a dispute about holidays, I propose to make an order that the short holidays at the end of Terms 1, 2 and 3 be equally shared and that, in the absence of agreement, the children spend the first half of the holiday with the husband and the second half with the wife.

8. It is to be hoped that the parents can resolve the arrangements for the Christmas holidays without resorting to the Court.

FAMILY DISPUTE RESOLUTION

1. The file does not disclose that the parties have made any attempt to resolve the parenting issues with a qualified family dispute practitioner.

2. Any urgency which may have existed when the applications were filed has now been addressed and the parenting matter should not proceed any further until the parties make a genuine effort to resolve the parenting aspects of the matter.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 April 2020.

Associate:

Date:  29/04/2020