Malthouse & Malthouse

[2008] FamCA 977

FAMILY COURT OF AUSTRALIA

MALTHOUSE & MALTHOUSE [2008] FamCA 977

FAMILY LAW – PROPERTY - applicant and respondent separated under the same roof since April 2006 - sale of matrimonial home prior to final hearing for property orders – power of the Court to make interim property orders in appropriate cases

CHILDREN – With whom a child lives – youngest child of the marriage to live with the applicant mother and spend substantial and significant time with the respondent father

APPLICANT: Ms Malthouse

RESPONDENT: Mr Malthouse

FILE NUMBER: SYF 4255 of 2006

DATE DELIVERED: 23 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Musgrave Lister Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

Orders made 23.10.08

PENDING FURTHER ORDER IT IS ORDERED THAT:

Children

1. The parties have equal shared parental responsibility for the children T born … August 1991 and R born … January 1997.

2. Upon completion of the sale of the B property:-

   2.1.R live with the mother. 

   2.2.During school term R spend time with the father:

   2.2.1.each alternate week from after school Friday until the commencement of school Monday;

   2.2.2.each week from after school on Tuesday until the commencement of school on the following Wednesday morning;

   2.2.3.any other time the parties agree. 

   2.3.The times in Order 2.2 will be suspended during gazetted school holidays.

   2.4.During mid term school holidays:

   2.4.1.For half of all New South Wales mid-term gazetted school holiday periods, at such times as agreed between the parties and failing agreement:-

   2.4.1.1.For the first half of each of the mid term New South Wales gazetted school holiday periods in years ending in an even number, such occasions to commence from the conclusion of school on the last day of school term and such occasions to conclude at 5.00pm on the Saturday at the conclusion of the first week of each such holiday period; and

   2.4.1.2.For the second half of each of the mid-term New South Wales gazetted holiday periods in years ending in an odd number, such occasions to commence from 5.00pm Saturday being the Saturday at the end of the first week of the school holiday period and such occasions to conclude at 5.00pm on the Saturday prior to school resuming.

   2.4.2.R otherwise live with her mother at all other times during the mid term New South Wales gazetted school term holiday periods. 

   2.5.During Christmas holidays:

   2.5.1.In years ending in an even number, the number zero deemed even for this purpose, R shall be:

   2.5.1.1.in the care of her father from 12 noon Christmas Day to 6.00pm Boxing Day; and

   2.5.1.2.in the care of her mother from 12 noon 24 December (Christmas Eve) to 12 noon Christmas Day;

   2.5.2.In years ending in an odd number, R shall be:

   2.5.2.1.in the care of her mother from 12 noon Christmas Day to 6.00pm Boxing Day; and

   2.5.2.2.in the care of her father from 12 noon Christmas Eve to 12 noon Christmas Day;

   2.5.3.Subject to Orders 2.5.1 and 2.5.2 above, R live with the father for the first half of the New South Wales gazetted school Christmas holiday period in years ending in an even number, such occasions to commence from the conclusion of school on the last day of term and conclude at 5.00pm on the Saturday concluding the third week of such holiday period.

   2.5.4.Subject to Orders 2.5.1 and 2.5.2 above, R live with her father for the second half of the New South Wales gazetted school Christmas holiday periods in years ending in an odd number, such occasions to commence from 5.00pm on the Saturday concluding the third full week of such holiday period and such occasions to conclude at 5.00pm on the Saturday prior to school resuming.

   2.5.5.For all other periods during the New South Wales gazetted school Christmas holiday period, R shall live with her mother.

   2.5.6.Such other and/or further time as the paries may agree in writing in lieu of the arrangements pursuant to Orders 2.5.1, 2.5.2, 2.5.3 and 2.5.4.

   2.6.Father’s Day / Mother’s Day:

   2.6.1.R shall not be in her father’s care on a weekend that includes Mother’s Day but in substitution R will be in her father’s care as per the times set out in order 2.2.1 on the following weekend;

   2.6.2.R shall not be in her mother’s care on a weekend that includes Father’s Day but in substitution R will be in her mother’s care on the following weekend.

   2.7.Birthdays:

   2.7.1.On the father’s birthday by agreement and failing agreement if the birthday falls on a school day then from after school until 7.30pm and in the event the birthday falls on a weekend then from 9.00am to 6.00pm on the birthday;

   2.7.2.On R’s birthday by agreement and failing agreement if the birthday falls on a school day then from after school until 7.30pm and in the event the birthday falls on a weekend then from 9.00am to 2.00pm on the birthday;

   2.7.3.In the event R is due to be in her father’s care pursuant to these orders on the mother’s birthday, that R shall be in her mother’s care on her mother’s birthday as agreed and failing agreement if the birthday falls on a school day then from after school until 7.30pm and in the event the birthday falls on a weekend then from 9.00am to 6.00pm on the mother’s birthday;

   2.7.4.such other and/or further times as the parties may mutually agree in writing in lieu of the times specified in Orders 2.7.1, 2.7.2 and 2.7.3. 

   2.8.1The father shall collect R from school during school term periods and return R to the mother’s residence during any period that R spends with him during school holidays. 

   2.8.2The mother shall deliver R to the father on any occasion when R is with her at the time R is then due to be with her father. 

   2.8.3The father will deliver R to the mother if R is with him at any time that R is then due to be with the mother. 

   2.9.In the event that R is significantly ill and/or injured and requiring medical treatment that the party that has R’s care at that time:

   2.9.1.notify the other party as soon as reasonably practicable; and

   2.9.2.provide the other party with notice as to the contact details as to where R is being treated including an address, contact telephone number and name of the treating hospital, medical centre and/or treating medical practitioner. 

   2.10.Each party within forty eight (48) hours of the date of these orders provide to the other party the contact telephone number where such party may be contacted in the event of an emergency.

   2.11.In the event either party seeks to take R out of the Sydney metropolitan area, that party shall:

   2.11.1.provide to the other party telephone contact details for R for the duration of such period; and

   2.11.2.in the event that it is proposed that such occasion exceed a period of seven (7) days then that party shall provide to the other party an itinerary including contact telephone numbers, accommodation and travel details for that duration no less than two (2) weeks prior to such proposed travel out of the Sydney metropolitan area.

   2.12.During periods when R is in each party’s respective care pursuant to these orders, each party shall ensure that R continues to be involved in and attends all and any extracurricular schooling and sporting activities. 

   2.13.Each party enjoy liberal and flexible telephone communications with R during periods when R is in the other party’s care and each party provide to the other party within three (3) days of the date of these orders as to their respective residential landline telephone contact numbers for the purposes of such telephone communications. 

   2.14.Each parent shall:-

   2.14.1.inform the other parent within 24 hours of any invitations that R receives to attend any social engagement when R is living with the other parent and in that regard, they shall promptly cause the invitation to be given to the other parent and allow that parent to respond to the invitation and make all appropriate arrangements;

   2.14.2.notify the other parent of the name, address and telephone number of R’s treating doctors and authorise those doctors in writing to release to the other parent particulars of R’s health and treatment at any time requested by the other parent;

   2.14.3.give the other parent the option of caring for R in the event that the parent in whose care R is, is unavailable, with the intention that the other parent is called upon to ‘baby-sit’ in preference to a person who is not a parent of R.

Property

1. The husband and wife to immediately do all things necessary and sign all documents as may be necessary to sell the former matrimonial home known as B (“the B property”) on the terms annexed to these Orders and marked “A”.  and on completion of the sale the sale proceeds are to be distributed in the following manner and priority:-

   3.1.in payment of the agent's commission and legal expenses of the sale;

   3.2.in payment of an amount necessary to discharge the mortgage to the AMP secured on the B property;

   3.3.in payment of the balance, 40 per cent to the husband, 40 per cent to the wife, 20 per cent into a controlled money account in the joint names of the parties with the solicitor for each party being a signatory to that account.  

2. Within two days from the date of these orders the parties do all things and sign all documents as may be necessary to instruct Mr P, Director of W Real Estate, to be the real estate agent to act in relation to the sale of the B property on the terms of sale as set out in annexure “A”.  

3. Within two days from the date of these orders both parties shall do all things and sign all documents as may be necessary to instruct Newnhams Solicitors to act in relation to the sale of the B property.  

4. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

5. Liberty be granted to either party to restore the matter on seven (7) days notice in relation to the implementation of the orders for the sale of the B property. 

IT IS NOTED that publication of this judgment under the pseudonym Malthouse & Malthouse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4255 of 2006

MS MALTHOUSE

Applicant

And

MR MALTHOUSE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These interim proceedings are about what time R, who is currently 11 years and 9 months old, should spend with both her parents pending the final hearing.  The proceedings also concern whether or not the current matrimonial home at B is to be sold on an interim basis. 

2. A short history is both parties are 50 years of age, they married and commenced living together in January 1983.  There are three children of the marriage.  Apart from R there is T, who is aged 17, and C, who will be 21 in March next year.  Up until recently, the father and the mother and the three children lived under the one roof in the family home, the address of which is … (“the B property”).  I am told today that the father has agreed that T can go to boarding school and that has now happened.  The father says that the parties separated under the one roof in January 2006.  The mother says the parties finally separated in April 2006.  In the context of this application, and probably in the context of the final hearing, nothing turns on that difference.

3. The mother filed an application for final property orders on 13 November 2006. However, because of the matters awaiting hearing in this Registry of the Family Court, some of them involving far graver issues I am afraid to say, than the issues in this case, this matter has not been able to be dealt with yet and it probably will not receive a final hearing until the first half of next year.

4. On 25 August 2008 this year the mother filed a further amended application in a case seeking interim parenting orders and orders regarding the sale of the matrimonial home, and that document substantially copies an application in a case that had been filed on 18 July 2008.  The interim parenting orders sought by the mother have been amended today, orally, by her counsel, and what she seeks before me today is that the parties have equal shared parental responsibility for both T and R; that R live with the mother, that in school term R spend time with the father from after school Friday until the beginning of Monday each alternate weekend and from after school Tuesday until the commencement of school Wednesday each week.  So what the mother is proposing is a fortnightly arrangement where R would spend five nights per fortnight with her father, half mid-term school holidays, alternate Christmas Eves and alternate Christmas Days, alternate half Christmas school holidays, R spending some time with her mother on Mother's Day and some time with her father on Father's Day, and for R to spend time with both her parents on her birthday.  Both parties are proposing that R spend some time with them both on their birthdays (neither of them seemed to have taken up the suggestion in the family report as to what R would like to do).

5. The mother sought consequential orders in relation to changeover, telephone communication, notification in relation to emergencies and the like and also ensuring that R continues to attend all her normal school and sporting activities. 

6. The father has handed up today through his counsel a minute of the orders he seeks, and he has changed his position.  He originally was seeking an order on an interim basis that both children be with him for alternate weeks.  That order sought, so far as T is concerned, is no longer appropriate given that the parties have now agreed that T be allowed to board during his final year of high school.  The father, on an interim basis, has amended his position.  Whilst maintaining that he would want me, when this matter is finally heard, to make an order that R spend equal time with him, what he wants, pending that final hearing, is an arrangement whereby during school term R would spend each alternate week from after school Thursday to before school the following Tuesday in the first week, and from after school Thursday to Friday morning in the second week.  That is a regime which would have R spending six nights a fortnight with him on an interim basis rather than seven (which is his application on a final basis).

7. When the matter was before me on 7 July 2008 the father resisted the mother's application for the sale of the B property and sought time to file material.  That is what has happened.  The matter is now back before me to deal with it.  I have indicated that it is unlikely that there will be a final hearing of this matter until the second part of the first half of next year, so effectively any order for sale at that time, once implemented, will mean that the parties will remain in the B property from now until sometime into the second half of next year.

8. In July 2008 it appeared to me that the likely outcomes today were either that I would order a sale of the B property today or the sale of the B property, as I have said, will not happen till the second half of next year sometime.  It was in those circumstances that the parties agreed to consent to an order which readied the B property for sale so that the marketing of the property could move forward immediately and the chances of obtaining an exchange contract before the end of the year could be maximised if that is what I ordered today.  On what I have heard the order in relation to preparation of the property has, in effect, been practically achieved, with some minor matters still to be imminently attended to.

9. The mother sought an order that Mr P, director of W Real Estate, or another person from Ray White in …, be appointed as real estate agent to act, and the parties are now agreed on Mr P.  The mother also sought that her own solicitors act on the sale of the B property, but it has now been agreed that the father's solicitors, Newnhams, fulfil that role.  The parties have also agreed on a mechanism by which the reserve price can be fixed if they themselves are otherwise unable to mutually work that out. 

10. The father's primary position in relation to the mother's application for the sale of the home is that he wants that application dismissed.  In the alternative he has sought that the home not be sold until the work is completed, and I found, having spoken to the parties today, that that has effectively happened.  In the alternative, what he seeks on the completion of the sale of the B property is that each party get one half of the net proceeds after the discharge of the mortgage and then it be left to the trial Judge, which will probably be me, subsequently to claw back money from one party or the other, depending upon the final outcome of the matter. 

11. On the basis of the current applications, that would be a claw back from the father to pay the mother an adjustment if the mother was successful in her application, and I would not have to do anything if the father was successful in his application.  Alternatively, if there was not to be 100 per cent distribution, the father wanted the whole of the amount deposited in an account operated by the joint signatures of both the parties and that the father's existing line of credit facilities be secured against that fund.  

12. The mother, on the other hand, now seeks that the net proceeds of the sale of the B property, on an interim basis, be distributed as to 40 per cent to the father, 40 per cent to her, and that the remaining amount of 20 per cent of the net proceeds after the discharge of the AMP mortgage be frozen. 

13. Originally the father's application for interim orders in relation to the children was predicated on the basis that he would be unsuccessful in opposing the sale of the B property.  He did not actually want any orders at all, that is his primary position, so that the current status quo just continues without orders.  If I do not order a sale of the B property, as I have said, the father's original position was that the separation under the one roof of the parties which has existed since at least April 2006 would continue probably until the second half of 2009. 

14. In final submissions counsel for the father, however, seemed to suggest that the mother would have the option of moving from the home, taking R with her, accessing joint funds and capital, and in those circumstances parenting orders would need to be made in relation to R.

15. The parties addressed me first in relation to the issue of interim property, and I will deal with that first.  On 7 July 2008 I discussed with the parties the joint balance sheet that had been prepared by them and dated that day.  Whilst there may have been some significant movement in recent times in respect of the value of the shares held by the parties, that joint balance sheet indicates that the overall net assets of the parties were in the sum of about $5,844,000.  There was also superannuation in a self-managed superannuation fund in the sum of about $1,822,000.  The B property, which is referred to as N on the balance sheet, is agreed to have a value, at least as at 7 July 2008, of $5.5 million.  The property is encumbered by a mortgage with the AMP in the sum of $368,000, and the parties' other major liquid assets are Australian shares which were then worth, on 7 July 2008, $538,000, and Deutsch shares which as at August 2007 were said to be worth $99,500.  There is no indication that the parties can currently access anything in the superannuation fund.  It is therefore apparent that nearly 90 per cent of the parties' accessible wealth is tied up in the B property. 

1. On 7 July 2008 in sworn evidence the father told me that his ambition when this case is completed is to acquire a unit in the M area for about $2 million.  The mother said that she would be looking to reaccommodate in the N area where her support networks are.  In her most recent affidavit the mother sets out at paragraph 34 that her proposal would be that she would not purchase immediately upon settlement of the sale of the B property.  Her proposal in that affidavit was that she would commit to living in the property at Y which is owned by her parents.  That commitment, of course, in her affidavit, was made at a time when the father was still resisting allowing T to go to boarding school and it was important to the mother to find a stable residence for T during 2009. 

2. The Y property is currently occupied by tenants whose lease has expired, and the mother says in her affidavit they would be able to be required to move upon them being given four weeks notice.  The mother says in her affidavit that her parents have received rent from this property and it is their sole source of income, and I infer that they will continue to need that income to live.  She uses the word "board" to describe the payment that she would pay her parents, which in the context of that sentence I interpret to mean "rent".

3. The father has tendered in his case, as Exhibit D, a copy of the 2005 residential lease with the current tenants of this property.  It shows that the current rent per calendar month is in the sum of $3322, and I think I can take judicial notice that the market rent of that property would be higher today than what it was in 2005.  The mother in her affidavit indicated that she intended to stay in this property in the short term, but as I have said, that commitment was obviously connected with making sure that T had a stable place to be for his high school certificate year and that no longer may be a consideration by the mother. 

4. I just reiterate that the father's application for final orders was for a 50/50 split of everything.  The mother, on 7 July 2008, indicated that her application was for a 60/40 split and counsel for the mother confirmed today that this included an application for a splitting order, 60/40 in her favour, of the current assets and the superannuation fund.  So in terms of final orders, the parties are 10 per cent apart; an amount, on the current balance sheet, of somewhere in the order of $760,000. 

5. The Full Court in Harris v Harris [1993] FLC 92-378 has made it clear that the Court has power to make interim property orders in appropriate cases. In the well known passage at page 79,929, the Full Court sets out matters that need to be considered when exercising the power to make an interim property order, and in summary, those matters are:

   a)The circumstances presenting at the time need to be compelling. 

   b)It is an exercise of the s 79 power and consequently it must be within the predictable parameters of a possible result at a final hearing.

   c)The power must be exercised conservatively in the sense that it would be capable of being reversed or adjusted if it was subsequently considered necessary to do so.

6. I heard direct oral evidence from the parties on 7 July 2008.  Neither of the parties have been tested on their evidence, but the mother orally told me then what she has repeated in her affidavit which she filed on 25th August 2008; namely that in her view there has been a substantial amount of conflict as between herself and the husband due to them having to live in what she describes as an extraordinarily artificial and difficult circumstance since at least April 2006.  She is concerned that the current environment, which merely prolongs the inevitable physical separation, is not good for her and it is not good for the children.  She is concerned that the level of conflict between them may well escalate if she has to go through almost another year of it.  She says, and I accept that it is true, that she finds it increasingly difficult to continue living in the same house as her estranged husband; attending to the washing, the cooking, the shopping, the ironing, the cleaning, the day-to-day running of the household and living in an environment which does not meet the reality of them being a separated couple. 

7. Both parties in their affidavits give evidence of a history of unbecoming conduct of the other towards each of them.  On 7 July 2008 the mother told me that, particularly during the period when the father was working, he was often stressed, and although there were no physical fights there were verbal altercations.  The father on 7 July 2008 told me that what the mother said about the verbal abuse was an exaggeration.  He said it happened when he was tired and was working stupid hours.  He did concede to me on 7 July 2008 that he did lose it from time to time and that he raised his voice, but he did not believe the children were scared of him because of it. 

8. When the children were talking to the family consultant, T said that he had not been exposed to arguments between his parents.  He said, "They do not speak to one another frequently.  It is just quiet”.  The father, mother and children sit down to dinner almost every night, and the picture drawn by T is that they sit down in silence.  T expressed a strong desire not to live with either of his parents in his final year of high school.  He wished to board during year 12, and if he could not he wanted to live with his mother.  His mother supported his wish to board, and I am told today that his father has now agreed to him being able to leave the household.  Although T does not speak explicitly of the tension in the house, I take his wish to leave the house to point to there being a level of stress in the house which is not in the children's best interests on a continuing basis, and one which was certainly not in T’s best interests as he entered into his final year of high school, and one which T has now been able to extricate himself from.  R, however, is still there, and she has told the family consultant that her parents do argue, and that when they argue, she feels closest to her sister, C. 

9. As a result of my discussions with the father on 7 July 2008 I formed the view that his primary motivation for resisting the sale of the home was so that he could continue to see the children on a daily basis.  While I understand that motivation, it is in my view not one that outweighs what I find to be the compelling circumstances that the mother finds herself in.  She has been separated from the father since April 2006, yet she continues to live with him and feels compelled to provide services for him.  That creates tension, which I have no doubt has been experienced by the children as I have already described. 

10. Counsel for the father argues that this interlocutory order finally determines the rights of the father in relation to the B property as opposed to his interest in the sale of the proceeds. Whilst that technically is accurate, it is in my view not a strong submission in the circumstances of this case. There is no suggestion in this case that the B property will not have to be sold as part of the final orders. What the mother is seeking is that the inevitable order for sale be brought forward. It is an order being made on an interim basis under s 79 of the Family Law Act 1975 (“FLA”) well within the parameters and general framework of what will happen at the final hearing, and I find that there are compelling reasons to contemplate that order.

11. It is true that the order will deny the father of continuing occupancy of the B property pending final determination of the proceedings, but that will apply to both parties.  In that sense, the prejudice to both parties in losing occupancy of the B property is the same.  The effect of a sale would be that both parties will have a substantial capital amount, and income from that capital to draw upon to effect both interim and longer term re-accommodation.  Counsel for the father argued that the mother had the capacity at any time since April 2006 to leave and go to her parent’s property at Y and to pay them rent.  That was not part of either party's case before me in this interim application.  The mother did not propose that; the father did not propose that.  The mother's financial statement indicates that she has a nil income.  It was not clear to me the mechanism by which a substantial amount of monthly rent would be paid to the mother's parents and how that would be achieved. 

12. The argument that the father will lose his ability to derive an income from share trading because he will lose his current line of credit is answered if a significant portion of the proceeds of the B property are distributed to each of the parties. 

13. A conservative approach can be achieved, in my view, by freezing 20 per cent of the net proceeds of sale and releasing the balance of the proceeds of sale evenly between the parties.  As I have said, in my view there are compelling reasons why the home should be sold now.  In summary, those reasons are that it will end the intolerable circumstances in which the mother finds herself, it will create a less stressful circumstance for R in particular, and it will give the parties access - and particularly the mother access - to capital and income without any need to involve their ex-partner. 

14. I will now move to the parenting matters.  The Full Court in Goode v Goode (2006) FLC 93-286 provided guidelines on how interim proceedings should be conducted. I have already identified the competing proposals of the parties and I have referred to some of the uncontested facts. The main issue in dispute between the parties is, given that there is going to be a sale of the home, what time should R spend with each of her parents. In considering this issue, the matters in s 60CC of the FLA that are relevant are to be considered. In deciding what parenting orders are made for R I must have her best interests as my paramount consideration. In determining those best interests I must primarily consider the benefit to R of having a meaningful relationship with both of her parents. There is no issue in this case of abuse, neglect or family violence. In addition, I must consider those matters that are set out in s 60CC(3) and (4), and I also have to bear in mind the objects and the underlying principles of Part VII of the FLA.

15. There appears to be no issue that it is to the benefit of R to have a meaningful relationship with each of her parents.  The issue is how is that best achieved.  The father's proposal provides that he have slightly more time with R than the mother's proposal.  Prima facie, the father’s proposal for more time would increase the opportunity for R to maintain and develop her current relationship with her father.  That, however, has to be counter-balanced by the effect of making that order if R’s wishes are something different, and if an order against her wishes is made on an interim basis, how that might affect the current relationship between R and her father.  R has expressed some clear views and Dr F has made some recommendations based upon those views. 

16. On pages 8 and 9 of the family report provided to me by Dr F, in paragraphs 27 to 29, Dr F discusses her conversations and interviews with R.  Initially R said that she wanted the time with her father that her mother proposed.  That proposal at that time was more curtailed than the current proposal that the mother suggests today.  Dr F reality tested that proposal with R, and after some discussion R changed her mind and reflected on the amount of time that she wished to spend with her father.  She nominated some things that she did with her father.  She, however, said that she did not want an equal time arrangement because she feels that she would miss her mother too much.  My discussions with the parties on 7 July and my reading of the material that they have filed indicates that there is no significant disagreement about the history of the parenting and caregiving in this matter, and it is quite clear that up until the time the father ceased work the primary attachment that R had was with her mother.  That has changed over time in as much as the father has had a more active involvement in R’s life, but these things are an evolving process.  R fears change and would like her life to change as little as possible.  It is not uncommon for an 11 year old to want everything to be the way it was.  Unfortunately, in this case, that cannot be so, and the dragging on of the current situation, in my view, is only making things worse for R. 

17. In Dr F’s evaluation she speaks highly of both parents, describing them both as caring and committed, with an obvious love for R. The father, not in this interim hearing but in the longer term, will be seeking equal time. Dr F makes the obvious comment about the barriers that currently exist in this case to moving to an equal time arrangement. Those barriers are barriers which are referred to in s 65DAA(5) of the FLA, and primarily in this case relate to the inability currently of the parties to communicate with one another as parents. On 7 July 2008 I made some orders that I hoped would improve that situation. For reasons that were explained to me today the parties have not implemented those orders and have not yet had the benefit of having some professional advice on how they can attempt to improve their ability to deal with one another as parents of, particularly, R.

18. Dr F talks in somewhat negative terms about the mother's current inability to see the father as somebody who provides positive influences and an ability to care for R.  There is no doubt that the change that is brought about by what I am going to order will have an effect on R, but as I say, in my view it is in her best interests that this change happen sooner rather than later.  The continuation of what I have found to be a relatively stressful atmosphere in the matrimonial home is not to R’s benefit. 

19. There are no practical difficulties in relation to the sharing of R’s time or any expenses that I have to take into account.  I have spoken about the capacity of both parents as described by Dr F.  The willingness to encourage a relationship with the other parent is an issue that was raised by the father with me on 7 July 2008 and has obtained some currency in Dr F’s report.  The mother's change in the application that she has now made, in my mind, gives some hope for the future and demonstrates a move by the mother in her willingness to encourage the father's relationship with R. 

20. There are no other matters under s 60CC(3) of the FLA that I think I need to take into account, except to say that I have regard and place some weight at this interim hearing on the recommendations made by Dr F. She has recommended that R live with her mother and spend substantial and significant time with her father, which she defined to be for block periods of four to five nights a fortnight, including a weekend. It seems to me that if the father seriously wishes to pursue an equal time arrangement with R, and I do not doubt today that this is what his intention is, then it is sensible, given the effect of the change that R is about to experience to initially make an order that R spend time with her father in the manner that has been recommended by Dr F.

21. She is suggesting four to five nights a fortnight.  The mother's proposal is five nights a fortnight.  The father wants six.  I think, in balancing all the matters that I have referred to, I find on an interim basis that it is in R’s best interests to have a five night a fortnight arrangement at the current time.  I will re-look at that in the context of the final hearing when we get to that in the latter part of the first half of next year.  At that time I will have an updated report from Dr. F that might give me some further insights as to whether or not I should move to an equal time arrangement. 

22. I hope, in the meantime, as well, the parties will implement the order that I made on 7 July 2008, which is still an effective order that has not been put into operation by the parties; that is, that they both positively enter into a post-separation parenting course to see if they can improve the skills that they have to be able to deal with one another as R’s parents.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  18.11.08