MAIDEN & MAIDEN

[2018] FamCA 371

FAMILY COURT OF AUSTRALIA

MAIDEN & MAIDEN [2018] FamCA 371

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the father seeks to suspend time between the mother and child on an interim basis – Where the father is concerned that the mother poses an unacceptable risk of harm to the child due to the her alleged alcohol abuse – Where the evidence supports a finding that the risk to the child in spending time with her mother is unacceptable – Where supervision is not an adequate protection.

FAMILY LAW – PROPERTY – Interim – Where the father seeks orders relating to the sale of marital property – Where the parties have previously agreed for two of the parties’ real properties to be sold – Where the father has caveats lodged on each property – Where the mother now seeks to retain one of the properties and the father seeks to be appointed trustee for sale of the other – Where the property sought to be retained by the mother is not required to be sold – Where the father does not need to be appointed trustee for sale and appropriate orders are made to enable the sale of the other property.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582
In The Marriage of N and S (1996) FLC 92-655

APPLICANT: Mr Maiden

RESPONDENT: Ms Maiden

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 9528 of 2016

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 21 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T. Jordan

SOLICITOR FOR THE APPLICANT: Jones Mitchell Lawyers

SOLICITOR FOR THE RESPONDENT: Senior Legal Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

UNTIL FURTHER ORDER

1. Paragraphs 1, 2, 3, 4, 6, and 7 of the Order made by Senior Registrar Spink on 21 February 2017 be suspended.

2. Unless otherwise agreed in writing between the parents and the independent children’s lawyer, the mother spend no time with B born … 2008.

3. Paragraph 8 of the Order made by Senior Registrar Spink on 19 December 2016 be varied such that the father and mother each attend upon Mr C for the purpose of the preparation of a family report on dates as agreed and failing agreement the first available dates in August 2018.

4. Save as authorised by this Order or in writing by the father, the mother be restrained and an injunction hereby issues restraining her from taking any steps to sell the real properties situated at D Street, Suburb E, Z Town in the State of Queensland more particularly described as Lot … on Survey Plan …, Title Reference … (‘D Street’) and F Street, Suburb G, Z Town in the State of Queensland more particularly described as Lot …, Registered Plan …, Title Reference … (‘F Street’) (and collectively referred to as ‘the properties’). 

5. Mr H be appointed as a single expert to prepare a formal valuation as to the current market value of the properties.

6. D Street be sold and for the purposes of the sale the following shall apply:

   (a)       Upon expiry of the current exclusive agency agreement D Street be listed for sale with such agent as agreed between the parties and failing agreement with an agent appointed by the Chief Executive Officer of the Real Estate Institute of Queensland or her nominee;

   (b)       The parties accept a sale price as agreed and failing agreement a sale price that is at least 95 per cent of the value nominated by Mr H;

   (c)       The parties are to agree on what, if any, maintenance or improvements are to be carried out to D Street prior to sale and failing agreement they are to accept the advice provided in writing to that effect by the listing agent;

   (d)       The parties are to agree on a solicitor to act for them on the sale and in the absence of agreement the solicitor will be one appointed by the President of the Queensland Law Society or his nominee;

   (e)       On or prior to the settlement/completion of the sale of D Street the father shall remove or cause to be removed any Caveat lodged by him on D Street.

   (f)       Upon completion of the sale in respect of D Street the proceeds of sale shall be distributed as follows:

   (i)Payment of all agents commission, advertising and sale costs;

   (ii)Payment of all legal costs and outgoings in relation to the sale;

   (iii)Payment of any debt secured by way of mortgage on D Street;

   (iv)Balance paid to the Trust Account of a solicitor agreed to by the parties and failing agreement a solicitor appointed by the President of the Queensland Law Society or his nominee with such sum to be invested on behalf of the parties pending further order or agreement between the parties.

7. That within seven (7) days of the date of this Order, the mother deliver to the father his rowing machine and his bike.

8. All extant interim applications be dismissed.

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 Maiden & Maiden 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 BRISBANE

FILE NUMBER: BRC 9528 of 2016

Mr Maiden

Applicant

And

Ms Maiden

Respondent

REASONS FOR JUDGMENT

1. Mr and Ms Maiden appear to have had a tumultuous relationship hampered to a significant extent by Ms Maiden’s alleged alcohol abuse. The matter returns to court on Mr Maiden’s application to suspend time between Ms Maiden and the child, who is Mr Maiden and Ms Maiden’s daughter, aged nine, and to seek some orders relating to the sale of property.

issues

1. The issues for determination in this interim application are:

   a)Does the evidence relied upon by Mr Maiden and the independent children’s lawyer support a finding on an interim basis that Ms Maiden poses an unacceptable risk of harm to the child, such that there should be no time spent or minimal time spent?

   b)Should both properties owned by Mr Maiden and Ms Maiden be sold as previously agreed and for that purpose should Mr Maiden be appointed trustee for sale?

2. Mr Maiden did not press his application for sole parental responsibility for major long term issues or for Dr J to undertake a further psychiatric assessment.

3. Mr Maiden and Ms Maiden agree that there should be some provision for payments to be made to Ms Maiden although the circumstances under which such payments should be made is unclear. They also agree that certain personal items of Mr Maiden’s should be returned.  

Applicable legal principles - parenting

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[1] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[2]

   [1] See Family Law Act 1975 (Cth) s 65D.

   [2] See Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]

   [3]Baghti & Baghti [2015] FamCAFC 71.

3. The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

7. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

8. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence.  The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

10. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

11. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]

    [4] Banks & Banks (2015) FLC 93-637.

12. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6]

    [5] See M & M (1988) 166 CLR 69.

    [6] ibid and see also The Marriage of N & S (1996) FLC 92-655.

background

1. Before turning to a consideration of the issues I note by way of background that Mr Maiden is 71 years of age and a businessman. Ms Maiden is 51 years of age and not currently employed. Mr Maiden and Ms Maiden married in 1999 and separated in 2016. They have two children together, the child, born in 1998 and K aged 19.

2. Mr Maiden has a daughter from a previous relationship, Ms L, aged 37.

3. On 27 September 2016 a ‘final’ parenting order was made by consent which provided, among other things, for the parents to have equal shared parental responsibility for major long term issues and for the child to live with Ms Maiden and spend time with Mr Maiden on a gradually increasing basis to eventually week about.

4. On 19 December 2016 a parenting order was made by consent which provided, among other things, for the child to live with Mr Maiden and spend supervised time with Ms Maiden. The child had been living with Mr Maiden since 21 November 2016.

5. On 21 February 2017 a further parenting order was made by consent which provided, among other things, for the child to continue to spend supervised time with Ms Maiden.

6. In May 2017 Mr Maiden suffered a mild stroke and was hospitalised for a short period. He has achieved a good recovery.

7. On 15 June 2017 when the matter returned to Court there was no appearance by Ms Maiden and the matter was adjourned to 2 July 2018 on the basis of the information provided to the Court which appears as a notation to the Order. The notation states that the parties are attempting reconciliation and the mother is presently undergoing rehabilitation. Ms Maiden disputes that there was an attempted reconciliation and states that any ‘rehabilitation’ related to treatment for her anxiety.

8. Ms Maiden has not spent time with the child in accordance with the Order made on 21 February 2017 and the parents dispute the reason for that. There have been a number of interruptions to the child’s time with her mother as a result of Ms Maiden’s admissions to a number of rehabilitation centres, one of these admissions being for a period of about three months (the mother insists these admissions related only to treatment of her anxiety). 

9. The child spent no time with her mother between mid-December 2017 and the end of February 2018.

10. The child last saw her mother on 15 April 2018 after an incident involving the supervisor calling off the anticipated visit because of her concerns about the mother’s presentation. Unfortunately, the child saw her mother in a ‘state’ and this has resulted in some ongoing trauma for her.

proposals by the parties – parenting

1. Mr Maiden proposes that the child spend no time with her mother pending the preparation of a family report by Mr C. The precise terms of the order sought by him are set out in his Application in a Case filed 24 April 2018.

2. By her Response to the Application in a Case filed 10 May 2018, Ms Maiden seeks an order that the child spend alternate weekends with her unsupervised but ultimately this was not pressed. Ms Maiden’s proposal is for the child to spend supervised time with her as provided in the 21 February 2017 Order. Additional orders sought are contained in her Response.

3. The independent children’s lawyer proposes that the child spend three hours supervised time per month with Ms Maiden conditional upon Ms Maiden undertaking further tests confirming she is no longer abusing alcohol. The precise terms of the order sought by the independent children’s lawyer is set out in the minute of order retained with the Court papers. I observe that some of the orders sought are otiose given that there are existing orders for the child to live with the father and there is no evidence to support a number of the other orders.

DOES THE EVIDENCE RELIED UPON BY MR MAIDEN AND THE INDEPENDENT CHILDREN’S LAWYER SUPPORT A FINDING ON AN INTERIM BASIS THAT MS MAIDEN POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILD SUCH THAT THERE SHOULD BE NO TIME SPENT OR MINIMAL TIME SPENT?

1. It should be noted up front that Ms Maiden rejects the allegation that she is an alcoholic or that she has a problem with alcohol. She acknowledges that there have been times when she has consumed too much alcohol but says these have not been occasions when the child has been with her. Ms Maiden questions the reliability of the numerous tests indicating significant blood alcohol content or significant abuse of alcohol. She contends that she suffers from anxiety which is exacerbated by Mr Maiden’s conduct towards her. In support of her denial of any problem with alcohol Ms Maiden relies upon a report from Dr M dated 23 September 2016. However, I note that while Dr M did not consider that Ms Maiden fulfilled the criteria in DSM V for a substance dependency disorder, he nevertheless assessed her self-medication with alcohol as potentially problematic.

2. I have before me some records from the N Hospital (“NH”). On 6 December 2016 Ms Maiden was admitted to hospital in circumstances where she was minimising her abuse of alcohol despite a blood alcohol level (“BAL”) on admission of 0.31. She also presented to the NH on 28 November 2016 with a BAL of 0.3. The records indicate that Ms Maiden informed the hospital that she had attended the O Centre in mid-2016 for management of alcohol dependence. The notes indicate that Ms Maiden stated that she had started drinking at 13 years of age but denied any problematic drinking. Ms Maiden provided an inconsistent account of her alcohol usage when admitted on 6 December 2016. She first said that she had consumed 3-4 Vodkas in the past few days but then said she passed out three days prior and went to P Hospital and had not consumed any alcohol since then, despite having a BAL of 0.31 on admission. The treatment diagnosis upon her admission on 6 December 2016 was alcohol misuse disorder. She was discharged on 9 December 2016.

3. I also have before me a record from the P Hospital dated 25 February 2017. Ms Maiden was found unconscious by her daughter (presumably K) after ingestion of more than the recommended dose of Xanax and possible consumption of alcohol. The notes record that it was implied there was suicidal intent. They also record that Ms Maiden denied any substance ingestion but that she was slurring her words and was drowsy. It is further noted in the hospital records that there had been frequent admissions for mental health and alcohol abuse.

4. Ms Maiden has undertaken a number of carbohydrate deficient transferrin tests (“CDT”) at the request of the independent children’s lawyer pursuant to the Order made on 21 February 2017. On 21 March 2018 the test returned a percentage result of 2.7 per cent and on the 26 March 2018, 2.9 per cent and on 14 May 2018, 2.69 per cent. The raised CDT result is said to indicate probable recent or ongoing excessive alcohol intake or chronic harmful alcohol abuse. I note this is at odds with the letter from Dr Q dated 15 May 2018 wherein he states, when referring to the mother, ‘She remains abstinent from alcohol’. In the absence of any explanation from Ms Maiden I assume that the information referred to by Dr Q was provided by the mother. It is concerning to say the least that the information provided by the mother appears to be contradicted by the CDT tests.

5. I also have before me the results from a urine analysis undertaken by Ms Maiden on 14 May 2018. While the test is negative for drugs and alcohol the results include this statement:

   The urine was very dilute. This suggests a large quantity of water intake prior to passage of the urine, or perhaps adulteration of the sample with water after collection. This may be used to dilute out any drug matabolites to concentrations below detection limits.

6. Ms R is a social worker who was retained by the parents in April 2017 to provide them with assistance regarding the future care of the child. Ms R also met with K and Ms Maiden’s sister, Ms S who offered support to Ms Maiden and the child.  The parents have met with Ms R on numerous occasions. Ms R states that at all times Mr Maiden has expressed his support for the child spending time with her mother subject to Ms Maiden undergoing the necessary treatment for her drug and alcohol issues. In her view Ms Maiden has struggled to accept the need for treatment. Ms R refers to the mother’s admission to a number of centres including T Centre in Brisbane (on two occasions), U Centre and V Centre where Ms Maiden underwent a three month program ending in early December 2017.

7. Agreement was then reached between Mr Maiden and Ms Maiden for the child to spend time with her mother but, unfortunately, as Ms Maiden concedes, on 13 December 2017 she was found asleep in her car after consuming half a bottle of Vodka. Criminal charges followed including resisting arrest. Ms Maiden seeks to excuse her behaviour on the basis that she was disappointed that there had been a postponement of a proposed visit between herself and the child.

8. Ms R also describes a number of occasions where the proposed visit between the child and her mother has had to be cancelled because of Ms Maiden’s inebriation. The visits have been cancelled by Ms W, who is an independent supervisor, and the mother’s sister, Ms S.

1. Ms R also describes an occasion where Ms Maiden had driven to her office in what ‘was clearly an inebriated state’ and it was necessary to arrange a taxi for Ms Maiden to return home, only later to be informed that Ms Maiden had returned in a taxi to retrieve her car while under the influence of alcohol. Ms R describes Ms Maiden as a:

   … delightful woman who is described by her former partner and sister to be a very good and devoted mother to her children, however when inebriated, becomes abusive and difficult to manage. She also externalises responsibility for her poor behaviour to either others or to an event, as a means of denying her alcoholism. She also has a tendency to determine her own needs and programs in support of her competence as a means of deflecting from the real issue, with this being her alcoholism. It is her belief she merely suffers an anxiety condition and has no difficulty controlling her alcohol consumption. In my opinion, Ms Maiden has habitually used alcohol as a means of quelling her anxiety to the point whereby her solution to drink, is a significant issue. It has been explained to her on many occasions, that to drink alcohol exacerbates her anxiety condition and for this reason she is unable to tolerate drinking any alcohol whatsoever.

2. A consequence of Ms Maiden’s inebriation has been that the child has been disappointed in not seeing her mother on occasions. the child has expressed resistance to seeing her mother from time to time. She has been supported by Ms R at these times and encouraged to spend time with Ms Maiden when considered appropriate.

3. Mr Maiden contends that he did not hear from Ms Maiden from 13 December 2017 until late February 2018 such that the child spent no time with her mother during that time. Ms Maiden contends that she telephoned Mr Maiden on numerous occasions but there was no answer. Whether or not Ms Maiden made the phone calls as alleged, it seems she did nothing else to seek to arrange a time to see the child during that period, such as contact the independent children’s lawyer. Ms Maiden was obviously aware that Ms Fox was the independent children’s lawyer because she contacted her in March 2018 seeking her assistance to arrange a time to see the child.

4. On 15 April 2018 a supervised visit had been arranged and Mr Maiden duly dropped the child off to Ms Maiden’s home where she met up with the supervisor, Ms W. Ms W provides an account of the visit. She says that upon arrival the door was unlocked so she and the child entered and Ms Maiden called out that she had just got out of the shower. When Ms Maiden did not appear after 15 minutes, Ms W went upstairs and found Ms Maiden sitting in her wardrobe with no clothes on. Ms Maiden could not stand up but denied having consumed alcohol or taken any drugs. Ms W told Ms Maiden that the visit could not go ahead and Ms Maiden just hung her head. the child then appeared so Ms W asked if she would like to give her mother a kiss goodbye. the child walked over to her mother to kiss and cuddle her but Ms Maiden could not even lift her arms towards her daughter. Ms W says that she received a telephone call from Ms Maiden the next day in which it was apparent that Ms Maiden had no recollection of Ms W and the child attending her home the previous evening.

5. Ms Maiden agrees that she was unable to participate in the supervised visit on 15 April 2018. She contends that she was ‘emotionally unable to cope with it’. Ms Maiden contends that she was unaware that the visit was proceeding. The email and text exchange contained in exhibit 3 tends to show otherwise.

6. Ms X is a clinical psychologist retained by the father to provide assistance to the child on referral from the child’s GP, Dr Y. Ms X has seen the child on 10 occasions since August 2017. Ms X opines that the child is superficially a delightful child but she is ‘experiencing many insecurities and anxieties as a result of the profound losses she has suffered with her parent’s separation, her father’s stroke and her mother’s inability to care for her adequately.’

7. The child has expressed resistance to speaking to her mother on skype or the telephone and to visiting her because of ‘what happened last time’. The child reported that her mother was ‘very sick, lying naked on the bench. Her eyes looked really tired and her lips and eyes were purple.’

8. One of the child’s three wishes expressed to Ms X is that her mother gets better.

9. In Ms X’s opinion since the incident on 15 April 2018 the child:

   … has experienced a significant change in functioning and is displaying acute traumatic stress symptoms. [The child] is experiencing intrusive unwanted memories of her mother, she is hyperaroused and nervous in public, she is crying frequently and is making significant efforts to avoid reminders of her recent experience. There was a period immediately following the incident where [the child] had difficulty with sleep initiation as she was too scared to close her eyes for fear of seeing the images of her mother.

10. The parties were psychiatrically assessed by Dr J in early 2017. Neither party was assessed as suffering from any mental illness. Each of them has some personality vulnerabilities. Of particular interest in the context of the dispute currently before me is the statement by Dr J that the mother told him that she ‘now abstains fully from the use of alcohol’. His interview with the mother was on 13 March 2017. The recent evidence referred to above indicates the mother is not abstaining from alcohol.

Conclusion about risk

1. Sadly the evidence seems, at least at this stage of the proceedings, to support Ms R’s opinion that the mother is in denial about her chronic alcohol dependency. I accept that opinion for the purposes of this interim hearing. It may be that at a final hearing the mother will be able to convince the Court otherwise but at this stage of the proceedings the Court must take a cautious approach. Certainly the way the mother’s case was conducted lends weight to Ms R’s opinion that the mother externalises responsibility for her poor behaviour.

2. The incident on 15 April 2018 has left the child with acute traumatic stress symptoms according to Ms X, whose opinion I accept for the purposes of this interim hearing. It is true that Ms Maiden did not have any input into that report but it is not apparent on its face that the father did either. Ms X appears to base her opinion on her own observations and assessments of the child over ten sessions with her. the child has experienced considerable loss in recent years and exposure to her mother in states of inebriation or distress have taken their toll. She has also been disappointed at times when visits could not proceed because of her mother’s state. These visits have been cancelled not by the father but by Ms W, an independent supervisor, and the mother’s own sister.

3. It seems that Ms Maiden has been provided with considerable support from numerous sources including from her adult daughter, K, and her sister, Ms S, but her condition requires expert intervention. The first step seems to be for Ms Maiden to acknowledge that she has a problem that needs to be addressed.

4. At the current time I am persuaded that the risk to the child in spending any time with her mother is unacceptable. Supervision is not an adequate protection as demonstrated by the incident on 15 April 2018.

5. In the event the mother is able to abstain from alcohol and undertakes treatment I anticipate there will be agreement to her time recommencing with the child. I come to that conclusion because of the evidence given by Ms R to that effect.

6. The parties are to participate in a family report with Mr C who currently has dates available in August 2018 for interviews. That may allow sufficient time for the mother to address some of the issues raised in these reasons. During the hearing, I also raised with the parties my concern about the delay in the family report process but upon having reviewed the material relied upon in the case I now consider a moratorium to be preferable to a rushed re-introduction of the child with her mother. That is of course subject to the parents and the independent children’s lawyer agreeing otherwise should the circumstances change.

SHOULD BOTH PROPERTIES OWNED BY MR MAIDEN AND MS MAIDEN BE SOLD AS PREVIOUSLY AGREED AND FOR THAT PURPOSE SHOULD MR MAIDEN BE APPOINTED TRUSTEE FOR SALE?

1. Mr Maiden and Ms Maiden own two real properties in Z Town. They are registered in Ms Maiden’s sole name. There is a property at F Street, Suburb G which has an estimated value of $2,500,000 subject to a mortgage of $2,260,000. The second property is at D Street, Suburb E and has an estimated value of $7,000,000 subject to a mortgage of $95,000.

2. Mr Maiden has lodged caveats on each property.

3. Mr Maiden and Ms Maiden had previously agreed for both their real properties in Z Town to be sold. Ms Maiden vacated the F Street property to enable its sale and a contract was offered on the property. Ms Maiden moved back into the home and changed the locks. She said to Mr Maiden that she would only sign the contract if he agreed to the child spending unsupervised time with her. Understandably Mr Maiden refused to negotiate on that basis. The contract was lost as a result of the delay. Ms Maiden now contends that she wishes to retain this property. She complains that Mr Maiden has failed to provide disclosure as to the extent of his property interests.

4. I am not persuaded that the F Street property should be sold when there is opposition to its sale by Ms Maiden. There is no agreed property pool and given D Street property may be worth in the vicinity of $7,000,000 it might be feasible for Ms Maiden to retain the F Street property although that very much depends on what, if any, other property exists and of course the matters relevant to a determination of what property settlement order is proper in the circumstances of this case.

5. Both parties agree that D Street property should be sold. Without consultation with Mr Maiden, Ms Maiden listed D Street property for sale under an exclusive agency that expires in June. There is a disagreement between the parties about whether or not Ms Maiden has been transparent in the sale process. Mr Maiden wanted an authority to speak to the agent which Ms Maiden would not provide because she says Mr Maiden is ‘overbearing’. She says that she was prepared to provide him with copies of any documents he requested.

6. Mr Maiden contends that he should be appointed trustee for sale because of Ms Maiden’s erratic behaviour including moving back into the property at F Street and changing the locks and her attempt to negotiate property matters on the basis of her spending time with the child. In addition he contends that he has greater experience in these matters having been a developer and investor for many years.

7. If appropriate orders are made requiring the provision of information to Mr Maiden about the sale and permitting Mr Maiden to speak to the agent I do not consider it necessary to appoint Mr Maiden as trustee for sale.

miscellaneous

1. There is already an order for CDT testing to be undertaken upon request of the independent children’s lawyer. In the absence of evidence or submissions as to the utility of any other type of testing I am not prepared to order it.

2. While Mr Maiden seeks an updated report from Dr J in his application, it was not seriously pressed and I am not persuaded that it has any utility given the opinions expressed by Dr J in his earlier report.

3. Neither party addressed me about the release of funds from any sale proceeds. Mr Maiden proposes that each party received $500,000. Ms Maiden proposes that she alone receive $200,000. In the absence of evidence and submissions I am not prepared to order the release of any funds. Given the anticipated size of the property pool it would seem sensible for each party to receive some payment but that is a matter for the parties. If an unreasonable position is taken by a party in that regard then it can be remedied by a costs order at some future time.

4. I am unsure on the material whether the caveats lodged on the properties are non-lapsing although both parties refer to them in that way. No submissions were made about the nature of the caveats. If they are non-lapsing there would seem no need for the injunctions sought by Mr Maiden preventing the sale of the properties as they cannot be sold without him removing the caveats. As the injunctions were pressed I have assumed that the caveats are in fact not non-lapsing and that in order for them to remain in place the injunctions are required. I am prepared to issue the injunctions because Ms Maiden listed D Street property for sale without consultation with Mr Maiden, which provides some evidence of a risk of disposal and secondly, Ms Maiden says she wishes to retain the F Street property so an injunction causes her no prejudice.

5. No submissions were made in support of the further injunction sought against Ms Maiden to prevent her selling or disposing of furniture or household contents. Other than an allegation that Ms Maiden requested the return or her jewellery so she could sell it to a pawn shop there is no evidence of a risk of sale. There has been some agreement about the return of some items sought by Mr Maiden and an order to that effect can be made.

6. Mr Maiden and Ms Maiden should be jointly involved in the sale process for D Street. Mr Maiden takes no issue with the current agent continuing until expiration of the appointment in June. Thereafter I will order the appointment of an agent for sale as agreed and failing agreement as appointed by the CEO of the Real Estate Institute of Queensland or her nominee.

7. Mr Maiden provided a panel of experts to value the property and Ms Maiden chose Mr H. I note that Mr Maiden now proposes Herron Todd White provide the valuation. As Ms Maiden chose an expert from Mr Maiden’s panel I propose to adopt the one chosen by her and the property sold at a sum as agreed or at 95 per cent of the value attributed to the property by Mr H as this accords with the proposal made by each party.

8. No submissions were made about who should hold the funds upon sale and absent an agreement it will be a firm of solicitors as nominated by the President of the Queensland Law Society or his nominee.

9. In the absence of evidence or submissions I do not intend to order the payment of outgoings from the line of credit although that would seem to be a sensible course.

10. The payments to Ms Maiden as proposed by Mr Maiden were in part dependent upon Ms Maiden moving out of the home but the payment of the $8,000 per month seemed to be unrelated to that condition and instead seems to be dependent upon Mr Maiden succeeding with his application for a partial property settlement. As I do not propose to make that order and as no submissions were made about this payment I do not intend to make an order that it be paid although I note there appeared to be a general willingness on the part of Mr Maiden to make the payment to Ms Maiden and it would seem to be a sensible course in the current circumstances.  

11. In the absence of evidence or submissions relating to Ms Maiden’s application for the return to her of a remote control and a car I do not propose to make that order.

conclusion

1. I find that there is an unacceptable risk of harm to the child from her mother if she is to spend time with her mother at this time. I find that supervision is not an adequate protection. On the evidence as it currently stands I am persuaded that it is more likely than not that the mother has a problem with alcohol misuse and I encourage her to seek treatment.

2. Upon the mother being able to satisfy the father and the independent children’s lawyer that she has adequately addressed that issue I expect there will be agreement to a resumption of the child’s time with her mother. If there is no agreement and Ms Maiden has persuasive evidence that this issue has been addressed she is at liberty to file a further application.

3. I find that there is a risk of Ms Maiden disposing of property absent an injunction, given that both real properties are registered in her sole name and she has acted unilaterally in listing for sale D Street property.

4. In the absence of evidence that the F Street property needs to be sold I do not propose to order its sale in the circumstances where Ms Maiden expresses an intention to retain the property if possible.

5. As both parties agree to the sale of D Street property I propose to order its sale. 

6. I do not find that it is necessary to appoint Mr Maiden as trustee for sale. I do however propose to make orders that enable Mr Maiden to be fully involved in the sale process.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 24 May 2018.

Associate: 

Date:  24 May 2018