MANROW & MANROW

[2013] FamCA 281

FAMILY COURT OF AUSTRALIA

MANROW & MANROW [2013] FamCA 281

FAMILY LAW – CHILDREN – interim

FAMILY LAW – PROPERTY – interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Manrow

RESPONDENT: Mr Manrow

FILE NUMBER: SYC 7667 of 2012

DATE DELIVERED: 30 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonnel, SC

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

Pending further order

1. The parties have equal shared parental responsibility for B born … 2002; N born … 2005 and J born … 2006 (“the children”).

2. From the date of these orders until further order, the child B shall spend time with the father during school term in accordance with the following two week alternate cycle:

   In week 1

   2.1.From the conclusion of school until 7.30pm Wednesday; and

   2.2.From 9am until 7.30pm Saturday.

   In week 2

   2.3.From the conclusion of school until 7.30pm Wednesday; and

   2.4.From the conclusion of school Friday to 5pm Sunday.

3. The children N and J shall spend time with their father in accordance with the following two week alternating cycle:

   3.1.In week 1 from the conclusion of school Thursday until 7pm Thursday;

   3.2.In week 2 from the conclusion of school Friday until 5pm Sunday.

4. I mark the document entitled “Interim Consent Orders as Agreed” as Exhibit 2 and I make orders in accordance with paragraphs 2 to 9 of Exhibit 2.

5. The parties shall participate in a form of family therapy with Mr L commencing forthwith and for this purpose each party shall do all acts and things to arrange and attend a first appointment with Mr L at the earliest opportunity and will arrange for the children to participate in that family therapy in accordance with any direction given by Mr L.

6. At a point in time where he believes it is appropriate, Mr L is requested to provide a short report to the court in relation to the progress of family therapy and any recommendations he makes in respect of any change to the interim orders that I have made. Upon that report becoming available (and it is only to be prepared by Mr L when he thought it appropriate), the parties will have liberty to relist the matter before me for a reconsideration of the interim orders.

7. The father is hereby restrained from allowing the children to spend time alone with Ms C in the absence of the father for any period in excess of three hours.

8. The mother not be present at school at times when the children are due to commence time after school with their father. Ms C be permitted to pick the children up from school at these times. Otherwise the father be and is hereby restrained from allowing Ms C to deliver the children to or collect the children from school or extra curricular activities or be present when the father is attending to collecting the children from or delivering them to school or extra curricular activities or to the mother’s home.

9. The parties have a liberty to relist the matter for the purposes set out in the reasons.

10. Pursuant to s 65DA(2) and s 62B, 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 these particulars are included in these orders.

11. I mark the document entitled “Minute of Consent Order and Pending Further Order” as Exhibit 3 and I make orders and notations in accordance with Exhibit 3.

12. The parties continue to attempt to sell their jointly owned Town S property.

13. The mother and father do all things and sign all necessary documents to ensure the mother receives a total sum of $50,000 from the sales of the Town A property and the Town S property by the following means:

    13.1.If the Town S property sells first, the mother is to receive $50,000 from the net proceeds of sale.

    13.2.In the event the net proceeds of sale of the Town S property are less than $50,000, the mother is to receive the net proceeds and receive the balance of the sum of $50,000 from the sale of the Town A property.

    13.3.If the Town A property sells first, the mother is to receive the net proceeds of sale of the Town A property or receive $25,000 from that sale (whichever amount is the lesser) and receive the balance of the sum of $50,000 from the sale of the Town S property.

Exhibit 2

Pending Further Order:

1. deleted intentionally

2. That both parties be restrained from re-locating the residence of the children outside the Blue Mountains and [Sydney Suburb D] local council areas without the prior consent of the other party being obtained in writing prior to any such relocation, or order of the Court first obtained prior to any such relocation.

3. That the children spend time with the Father:

   3.1For half of each school holiday period, to be the first half in odd numbered years and the second half in even numbered years for each of the Term 1, 2 and 3 school holidays; and

   3.2For half of each Christmas school holiday period as follows:

   3.2.1For the first two (2) weeks in even numbered years and the second two (2) weeks in odd-numbered years; and

   3.2.2For the fifth week in even numbered years and sixth week in odd numbered years.

   3.3From 9.00am on Christmas Eve to 1.00pm on Christmas Day in odd numbered years, and from 1.00pm on Christmas Day to 5.00pm on Boxing Day in even numbered years; and

   3.4On each child's birthday and the Father's birthday as follows:

   3.4.1Where such day falls on a school day when the children would not otherwise be spending time with the Father pursuant to these orders, from after school until 6.00pm on such day.

   3.4.2If such day falls on a non-school day when the children would not otherwise be spending time with the Father  pursuant to these orders, from 9.00am to 1.00pm on such day; and

   3.5On Father's Day when the children would not otherwise be spending time with the Father pursuant to these Orders, from 9.00am to 5.00pm.

4. That the Father's time with the children be suspended as follows:

   4.1Each school holiday period, save and except in accordance with Order 3 above; and

   4.2From 9.00am on Christmas Eve to 1.00pm on Christmas Day in even numbered years, and from 1.00pm on Christmas Day to 5.00pm on Boxing Day in odd numbered years; and

   4.3On each child's and the Mother's birthday as follows:

   4.3.1Where such day falls on a school day when the children would not otherwise be spending time with the Mother pursuant to these orders, from after school until 6.00pm on such day.

   4.3.2If such day falls on a non-school day when the children would not otherwise be spending time with the  Mother pursuant to these orders, from 9.00am to 1.00pm on such day.

   4.4On Mother's Day when the children would not otherwise be spending time with the Mother pursuant to these Orders, from 9.00am to 5.00pm.

5. That all changeovers that do not take place at the children's schools are to take place by the Mother delivering the children to the Father’s residence at the commencement of the Father’s time with the children and the Father returning the children to the Mother’s residence at the conclusion of the Father’s time with the children.

6. That in the event that either party is unable to care for the children for a period of more than three (3) hours, then that party contact the other as soon as practicable to offer the other party to care for the children in that party's absence before seeking such assistance from any other person.

7. That in the event the children should at any time whilst in the care of either parent, express a wish or desire to telephone the other parent then each shall allow the children to do so and shall provide such assistance to the children as they may require.

8. That both parties be at liberty to attend any school event or activity to which parents are normally invited.

9. That the parties be and are hereby retrained from:

   9.1Denigrating the other parent or their family or partner in the presence or hearing of the children or permitting any other person to do so; and

   9.2Discussing the proceedings and the relationship between the parents with or in the presence or hearing of the children or permitting any other person to do so.

Exhibit 3

1. That pursuant to section 72 of the Family Law Act 1975 the Husband shall pay or cause to be paid by way of spouse maintenance:

   1.1all mortgage repayments, land rates, house and home and contents insurances (but not electricity, water rates or gas) with respect to the property situated at and known as … [E Street, Town S] in the State of New South Wales being all of the land comprised in Folio Identifier … (“the [Town S] property”) pending the sale of the [Town S] property as and when they fall due;

   1.2the cost of maintaining the lawns and gardens of the [Town S] property pending the sale of that property upon provision of receipt and not exceeding $50.00 per week;

   1.3all health insurance premiums in respect of the Wife and the children:

   1.3.1[B] born … 2002;

   1.3.2[N] born … 2005; and

   1.3.3[J] born … 2006

   [“the children”].

   1.4all compulsory third party and comprehensive car insurance premiums, loan repayments, registration and maintenance and repair costs in respect of the … Audi … motor vehicle registration number … as and when they fall due;

   1.5the Wife’s weekly petrol expenses;

   1.6the Wife’s mobile telephone expenses up to $150 per month;

   1.7the Foxtel and internet connections at the Wife’s residence;

   1.8the sum of $6,580.00 per month in to a bank account nominated by the wife payable as follows:

   1.8.1$2,500 on the second day of each month;

   1.8.2$1,580 on the fourth day of each month;

   1.8.3$2,500 on the tenth day of each month.

2. That the husband and the wife forthwith do all such things as may be necessary to list the property situated at and known as … [F Street, Town A] in the State of Queensland for sale by private treaty with a real estate agent agreed and failing agreement with a real estate agent nominated by the President for the time being of the Real Estate Institute of Queensland or his nominee and to sell the property for the best price reasonably obtainable and to distribute the proceeds of such sale as follows:

   (a)In payment of real estate agent’s commission and expenses on the sale.

   (b)In payment of proper legal costs and disbursements of each of the parties of and incidental to the sale.

   (c)In discharge of the mortgage to National Australia Bank secured over the property.

   (d)In adjustment of rates, levies and taxes on the property.

   (e)In payment of the balance then remaining to Coleman Greig controlled monies account.

3. That if the parties are unable to agree as to the listing price or sale price of the property then they shall appoint a valuer nominated by the President for the time being of the Real Estate Institute of Queensland or his nominee to determine the value of the property and

   (a)In the case of the listing price of the property shall list the property for sale at a price not more than 10% higher than the value so determined; and

   (b)In the case of the sale price shall accept any offer to purchase the property at that price or higher.

4. In the event that a valuer is appointed by the parties pursuant to the preceding clause then the parties shall pay the costs thereby incurred in equal shares.

5. That in the event that contracts for the sale of the property by private treaty have not been exchanged within three months after the date of these orders then the husband and the wife shall thereupon do all such things as may be necessary to list the property for sale by auction with a real estate agent agreed and failing agreement with a real estate agent nominated by the President for the time being of the Real Estate Institute of Queensland or his nominee upon the following terms and conditions:

   (a)The auction shall take place within six weeks after the date three calendar months after the date of these orders or as soon as practicable, whichever is the later.

   (b)The reserve price shall be as agreed between the parties and failing agreement as determined by the auctioneer.

   (c)Both parties shall attend at the auction and in the event that the property is passed in they shall negotiate with the highest bidder and shall accept any offer to purchase the property at no less than 90% of the reserve price.

   (d)That in the event that the property does not sell at auction or does not sell by private treaty within two weeks after the date of the auction then the parties shall relist the property for sale by auction at intervals of no more than six weeks upon the same terms and conditions as set out herein until the property is sold.

6. That upon the property being sold at auction the parties shall distribute the proceeds of such sale as follows:

   (a)In payment of real estate agent’s commission and expenses on the sale.

   (b)In payment of proper legal costs and disbursements of each of the parties of and incidental to the sale.

   (c)In discharge of the mortgage to National Australia Bank secured over the property.

   (d)In adjustment of rates, levies and taxes on the property.

   (e)In payment of the balance then remaining to Coleman Greig controlled monies account.

NOTATION:

A.That the wife does not object to the payments made pursuant to Order 1.8 hereof to be made pursuant to wages from the husband’s business entity provided the husband pays and assumes all responsibility for any taxation impost upon the said payments; and

B.That in the event the wife obtains a child support assessment, then the amount payable to the wife pursuant to Order 1.8 be credited against such child support liability.  The intentions of the parties being that the wife will not seek to have the husband pay the amount in Order 1.8 in addition to periodic child support; and the husband will not reduce the periodic monthly payments to the household of the wife and the children below the amounts in Order 1.8; and

C.That the parties agree that the husband will pay as and when they fall due in addition to the amounts in Order 1.8 all school tuition fees including fees for school activities, excursions, school uniforms, books and stationery and any extra curricular activity charged to the school account.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7667 of 2012

Ms Manrow

Applicant

And

Mr Manrow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. At the centre of this dispute are three children aged 10, 9 and 6 years. The parties have agreed on some parenting orders which are to be made but have been unable to agree upon others. The parties have provided a minute of consent orders in relation to spousal maintenance and the sale of a property in Queensland. There is a remaining issue about whether or not the matrimonial home continues to be offered on the market for sale. 

PARENTING DISPUTE

1. There are three children of the marriage, B born in 2002 (aged 10); N born in 2005 (aged 8) and J born in 2006 (aged 6).

2. The parties have agreed, pending further order, that the children will primarily live with their mother (although the father ultimately wants orders for the children to be with him six nights a fortnight).

3. By way of final orders, the mother seeks to relocate to the Central Coast with the children.

4. In the interim she has agreed to an injunctive order that restrains either party from relocating the residence of the children outside the Blue Mountains and Sydney Suburb D local council areas without the prior consent of the other party or further court order.

5. The parties have agreed that the children spend time with their father for half of each school term holiday and for half of the Christmas school holidays. For other special days there is provision for the children to spend time with their mother on special days. Any changeover that does not take place at the children’s schools will take place by the mother delivering the children to the father’s residence at the beginning of the children’s time with their father and the father returning them to the mother’s residence at the conclusion of that time.

6. Importantly in the context of the orders sought by the mother relating to the father’s partner Ms C, by consent, the parties have agreed that in the event that either parent is unable to care for the children for a period of more than three hours, then that parent is to contact the other as soon as practicable so that the other parent, if they choose to, might care for the children before the parent who is unable to seeks such assistance from some other person.

7. The parties have agreed that the children should be able to telephone the parent with whom they are not living any time they express a wish or desire to do so. Both parties have agreed that the other can attend any school event or activity to which parents are normally invited at the same time.

8. Appropriately given what has passed recently between the parties, the parties have agreed to be bound by an order that restrains them from:

   9.1.denigrating the other parent or their family or their partner in the presence or hearing of the children or permitting any other person to do so; and

   9.2.from discussing these proceedings with or in the presence or hearing of the children or permitting any other person to do so.

9. The parties have agreed that the parties will participate in family therapy with Mr L and that that therapy at least include B but will most likely include all the children (depending on Mr L’s view) and the parties invite me to make an order in those terms.

School term

1. There is some agreement as to what time the children will spend with their father during school term and some areas of disagreement about school term time.

2. For a short period of time, the father seeks a different arrangement for B as to the one he seeks for N and J (the father seeks that period end on 3 June 2013).

3. The father seeks that N and J spend time with him in alternate weekends in the first week from the conclusion of school Thursday until 7pm Friday and in the second week from the conclusion of school Thursday until 7pm Sunday. The mother agrees with the Thursday in the first week but not overnight and wishes the alternate weekend time to commence from Friday after school and conclude 5pm Sunday.

4. So, in relation to the two younger children, the difference between the parties’ positions is that the father would have the two younger children on four nights a fortnight. The mother seeks that the children be with their father on two nights a fortnight.

5. In relation to B, the father seeks to give B some “special” one to one time. It is agreed that will at least be from after school until 7.30pm each Wednesday night. The father also proposes some “special” time with B from 9am until 7.30pm Saturday in the first week with B and the mother has also agreed with that. The father also seeks that B be able to choose to extend these times to overnight “if [B] so wishes”. The father seeks an order that B be with her brother and sister for the whole of the alternate weekend proposed by him (Thursday night to Sunday night). The mother agrees to B being with her father on the alternate weekend at the same time as her siblings, which on the mother’s proposal is Friday after school to 5pm Sunday night on alternate weekends.

1. The mother opposes an order which would allow B’s time with her father to be extended, “if [B] so wishes”.

2. Consequently in relation to B, the father is proposing that B be with him three nights a fortnight with an option of another two nights at B’s choosing, the mother is proposing two nights each fortnight.

3. The father proposes that after 3 June 2013 the choice he initially proposes for B be removed and that all children travel together and that in week one they spend from the conclusion of school on Wednesday until 7pm Friday and from the conclusion of school on Wednesday until 7pm Sunday in the second week (that is an arrangement whereby the children will spend six nights a fortnight with their father). The mother proposes two nights a fortnight, pending further order.

BRIEF HISTORY

1. The mother is 40 years of age and the father is 47 years of age.

2. The parties commenced cohabitation in May 2000 and married in December 2001.

3. The parties initially separated in August 2011, although they remained residing under the one roof until February 2012 at which time the father left the matrimonial home. The mother has lived in that home with the children since that time.

4. At the time the father vacated the matrimonial home, the parents agreed on a shared care arrangement, reaching a verbal agreement that the children would live with the mother and spend time with the father on a fortnightly cycle from the conclusion of school Wednesday until Friday evening in week one and from the conclusion of school Wednesday until Sunday evening in week two (that is, the children would spend six nights a fortnight with their father). The parties disagree on how regularly this arrangement was implemented. The mother says the father spent time with the kids “regularly and in accordance with [the parties’] agreement” but that the father “forgot” on some occasions and had scheduled clients. She also says that on a number of other occasions the father contacted her on short notice to inform her he had personal or work commitments and wouldn’t be able to care for the children. The father says the parties’ verbal arrangement worked well. He concedes he went overseas on three occasions to care for his father, and he was deployed with the Australian military for “not more than six weeks” during April and May 2012. He agrees the mother cared for the children while he was overseas.

5. The mother asserts that that agreement was to be reviewed depending upon how the children coped with the arrangement. The father in his affidavit, which postdates the mother’s affidavit, does not seem to comment upon whether or not the arrangement was for a trial period. He does say that in about September/October 2012 the mother raised with him the fact that she felt that the two nights in the first week were disruptive for the children. The mother eliminated the Wednesday night in the first week, the father says, without his explicit agreement.

6. The father says that from late October 2012 he began to experience significant difficulties in spending time with the children.

7. The father asserts that he commenced a relationship with MS C in the third week of August 2012 and within one month Ms C and he were living together and by the end of 2012 Ms C was pregnant. The father did not inform the mother or the children about his relationship with Ms C until the third week in October 2012.

8. It is the father’s case that the current problems in relation to the children spending time with him have arisen from the mother’s reaction to the circumstances of him repartnering with Ms C and him commencing a new family with her.

The communication between the parties

1. Both parties have provided to the court parts of the written communication that have passed between the parents in recent times. Both parties have used appalling language in text messages. Some of the communication involved B.

2. In text messages (see Annexure L to the mother’s affidavit of 19 December 2012), the father made clear threats to the mother of an intimidatory nature, saying amongst other things:

   …just remember this. the tougher u make it for me now the tougher i will make in [sic] for u in the future. i will not forget any of this.

3. On 18 December 2012 he wrote amongst other things:

   i really hope that u get to feel the torture of having the kids kept away from u. and when u do i want u to remember the torture u have put me through the last few months. i want u to know how it feels to lose ur kids. god I hate u for what u have done tn [sic] me. i will never forget and never forgive.

4. A little later on the same day:

   i will spend every last cent to fight u legally to get access to my kids. every last cent. and i will fight u over every last cent that u try to squeeze out of me. u have bullied me whth [sic] your lawyers for over a year now. lets see how u like it

5. In a subsequent text message, the father threatens the mother with withdrawal of financial support and threatens to apply to the court for orders limiting the maternal grandparents’ time with the children telling the mother he wants the maternal grandparents to have no part in the children’s upbringing.

6. On 5 November 2012 the father texted the mother saying “they [a reference to the children] stay overnight or nothing that is my right. i knew u would deny me access anyway. It will be a terrible three months for me and the kids but at least the legal system will eventually protect us”. It seems agreed that following that text message the father chose not to see the children for about a month.

7. On 8 November 2012 the father sent a text message to B which inappropriately engaged B in the dispute between the parents. He wrote to his 10 year old daughter saying amongst other things:

   i am sorry but mum is trying to stop me [sic] staying with me and it is not fair on you guys to have to experience. this also happened to me when i was your age…

8. On 22 November 2012 the father sent a text to B telling her that the reason he had not seen her was because the mother would not allow her to stay at his house because Ms C was there:

   mum says that u dont like [Ms C]. why dont u like [Ms C]? she was very nice to you.

9. The exchange ended by the father texting B with “[y]ou have been listening to nothing but lies from your mother. [W]ho says I dont want you. [I] am very dissapointed [sic] by your txt [sic]”.

10. The father gives evidence (not challenged by the mother in her evidence in reply) at paragraph 94 of the father’s affidavit sworn 15 April 2013, of a text message he received from the mother on 27 February 2013. In that text message the mother refers to Ms C as a “delusional, unrealistic, gold digging slut” and “a desperate skank of a woman”.

Equal shared parental responsibility

1. The father seeks an interim order for equal shared parental responsibility. The mother seeks that no order be made or in the alternative, an order be made for “sole” parental responsibility in her favour.

2. As already discussed, there is currently a high level of acrimonious communication between the parties. Section 61DA(3) Family Law Act 1975 (Cth) (“FLA”) provides that when a court is making an interim order, the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order and sub-s (4) provides the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. If no order is made (which is the mother’s primary position), the effect of s 61C FLA is to leave joint and several parental responsibility with each parent. This would mean that each parent could independently make conflicting decisions about major long term issues in relation to the children. Given the level of animosity currently existing between the parties, I accept the suggestion by counsel for the father that that could lead to “anarchy”. It is important that some order be made. The question is whether or not it should be an order for equal shared parental responsibility or sole parental responsibility to the mother; they being the remaining applications before me. Although it might not be the case that equal shared parental responsibility is an appropriate outcome as a final order, the parties are now heading towards a final hearing. The parties have agreed that the children will remain at their same schools until the final hearing and will remain in the same locality as they currently are until a final hearing. The father is a qualified health professional and it would be inappropriate, on an interim basis, to lock the father out of any effective say in decision making about any major health issue that arises for the children in the short term. Although the parties’ level of communication might be a strong counter indicator towards equal shared parental responsibility for the longer term, in the short term it is appropriate to make an order for equal shared parental responsibility, the effect of which is the parties have to attempt to reach a joint decision in relation to any major long term issue in respect of the children (see s 65DAC(2) and (3) FLA). In the event they are unable to reach such an agreement, they are already currently engaged in the court processes and have access to the court for the purposes of resolving any such dispute.

SECTION 65DAA FLA

1. Given that I propose to make an interim order for equal shared parental responsibility, the provisions of s 65DAA FLA are enlivened. The father does not propose an equal time arrangement but something very close to it, technically an order which would be categorised as substantial and significant time. I am however required to consider whether the children spending substantial and significant time with their father would be in their best interests and whether spending substantial and significant time with him is reasonably practicable and if it is, to consider whether or not the orders sought by the father should be made.

2. When considering reasonable practicality, I have regard to the matters referred to in s 65DAA(5) FLA. The mother would assert that there were difficulties in the arrangements that were in operation between February 2012 and October 2012. The father would say there were not. I am unable to resolve those issues in the context of this interim hearing. What is clear however is the parents’ capacity to communicate with each other and resolve difficulties that might arise in this kind of arrangement is poor and on an interim basis, it is a significant factor against the father’s proposal. In relation to the impact upon the children, it is clear that B had difficulties coping both with the father’s new relationship with Ms C and undoubtedly the mother’s reaction to the father’s new relationship with Ms C. J on the other hand has expressed a wish to the Family Consultant to spend more time than he has been with his father. It is difficult to make an assessment on the impact of either parent’s proposal upon the children.

3. As I have said, it is the father’s case that arrangements between he and the mother were working effectively and cooperatively until the mother became aware of his involvement with Ms C; the fact that they were living together and the fact that she was pregnant with his child.

4. In the context of the final hearing, senior counsel for the father made it clear that he wished a chapter 15 expert report to be prepared on the basis that it is the father’s view that there is a serious problem with the mother’s mental status. The Family Consultant records that “[The father] suspects that his wife drank too much and has symptoms of a Borderline Personality Disorder. [The father] otherwise concedes that [the mother] is ‘a great mother’”. Senior counsel for the father asserted that notwithstanding the father’s [field of expertise] is not in the area of psychiatry, he is a qualified health professional and he has lived with the mother and he is in a position to express the opinion that he has proffered about her mental status.

5. If the father’s opinion is accurate or partly accurate, then it is a matter to take into account when assessing the reaction that the mother has undoubtedly had to Ms C’s role in the children’s lives, in circumstances where the father accepts that the children will live with their mother at least eight nights a fortnight. 

6. Although it was not a focus during submissions, I cannot help but comment upon the fact that the father seems to assume that the mother should accept his new relationship and new family and take it in her stride easily. In his written material, the father does not acknowledge the surprise that all of this probably was to the mother. Both family therapy and the passing of time may assist the mother in accepting the father’s new situation. Although the mother has not behaved well, the father has shown little sensitivity to the depth of her reaction to the father’s disclosure to her in October 2012 of his new relationship and subsequent pregnancy.

7. I find that, having regard to the matters set out in s 65DAA(5) FLA, it is not at this time reasonably practicable for the father to spend the amount of time that he seeks with the children (although what the mother is agreeing to is in fact still technically substantial and significant time within the definition of the FLA).

8. Also, having regard to s 60CC(2) and (3) considerations, I am of the view that the father’s proposal is not in the children’s best interests at this time. In considering those matters under s 60CC(2) and (3), it is clear that the children will benefit from having a meaningful relationship with both their parents and there are no significant allegations of violence against the father. I have some indications as to what the children’s views are from the Family Consultant’s memorandum and I take into account their ages when weighing what I know about their views. There were no specific s 60CC(2) or (3) factors that either counsel referred me to during submissions.

Progressive orders proposed by the father

1. The father’s proposed orders set 4 June 2013 as a date where there would be a significant change in the arrangements he seeks. As I indicated during discussions, I think it is inappropriate to set an artificial date of that nature in circumstances where the parties have agreed to an order that they involve themselves in family therapy. I will make an order that Mr L, at a point in time where he believes it is appropriate, provides a short report to the court in relation to the progress of family therapy and any recommendations he makes in respect of any change to the interim orders that I have made. Upon that report becoming available (and it would only be prepared by Mr L when he thought it appropriate), the parties will have liberty to relist the matter before me for a reconsideration of the interim orders. The parties will also have a general liberty to restore if either of them asserts that there has been a significant change in the circumstances from those which have led the court to make the current interim orders.

Injunctive orders sought by the mother

1. In paragraphs 9 and 10 of the mother’s Amended Initiating Application filed 22 April 2013, the mother sought the following orders:

   9.     That the Husband be and is hereby restrained from allowing the children to spend time with [Ms C] in the absence of the Husband.

   10.    That the husband be and is hereby restrained from allowing [Ms C] to deliver the children to or collect the children from school or extra-curricular activities or be present when the Husband is attending to collecting the children from or delivering them to school or extra curricular activities.

2. As I have said, it seems tolerably clear that the mother has had considerable difficulty accepting the fact that the father has formed a new relationship with Ms C and that they are having a child (due in September 2013).

3. That difficulty is demonstrated most starkly by the mother’s text message of 27 February 2013 referred to above.

4. In slightly less vitriolic terms, the Family Consultant records that during the interview in the child responsive program, the mother reported that:

   [B] is very upset at the speed with which her father has met another partner and introduced her to the children, compounded by her learning of “[Ms C’s]” pregnancy.

5. This is to be contrasted with [B] telling the Family Consultant that:

   She feels as though her father has not listened to her feelings, particularly about his new partner, “[Ms C]”. [B] said that she does not feel “special” in her father’s household and feels “underestimated”. She seems somewhat offended about the course her father has taken.

6. Even on an interim basis, I find that B at the age of 10 is acutely aware of the mother’s attitude towards the father’s new partner.

7. Compounding this are police proceedings in which the police seek protective orders in Ms C’s favour against the mother (that matter being listed the day after I heard the interim matter). The police on behalf of Ms C are seeking an order that the mother not contact her or approach her. The results of those proceedings are unknown to me. The application for the apprehended personal violence order is annexure N to the mother’s affidavit of 19 April 2013. It is alleged that the mother sent a text message to Ms C on 5 November 2012 which said, inter alia:

   Go prey on someone else’s children if that is what u need. I know for a fact that its not what mine need or want.

8. On 5 April 2013 the mother sent the father a text message indicating that if Ms C attempted to take N to Sport G she would stop her from doing so. There was an allegation that the mother drove dangerously tailgating Ms C’s car whilst she was driving N to Sport G on 5 April 2013.

9. The police facts allege that the mother said to Ms C, in front of N:

   [N] doesn’t want you here, you’re embarrassing her

10. The mother sets out what she says happened on 5 April 2013 at paragraphs 68 to 79 of her affidavit of 19 April 2013. In paragraph 70 of the affidavit the mother vehemently denies that she drove her motor vehicle in any dangerous manner, including denying that she “cut off” the car that Ms C and N were driving in. She denies “tailgating” Ms C’s motor vehicle. I am unable in the context of this interim hearing to make any findings about those matters.

11. I am able to say that N was exposed to a fairly embarrassing situation arising from the verbal interaction between the mother and Ms C on this day.

12. In her most recent material, the mother asserts that during her counselling session with the Family Consultant, she and the father agreed that Ms C would spend minimal time with the children and would not attend school or sporting events. The agreement as asserted by the mother is not recorded in the report prepared by the Family Consultant but that does not mean that the mother’s evidence is inaccurate, it just has not been tested and the father has not responded by way of any evidence to that assertion. He certainly however in the context of the application before me, resists any order in those terms.

13. The father has consented to the order which the mother seeks that she would be given the opportunity to look after the children if the father was unable to look after them for a period exceeding three hours. Such an order effectively limits the amount of time Ms C would be alone with the children to three hours. 

14. The mother has agreed for the children to be in the same household as Ms C, with the father present, for significant periods of time; the most time being three weeks during Christmas school holidays. It is clear that the two younger children do not have a problem with Ms C; the mother reporting to the Family Consultant that N “likes [Ms C]” and N telling the Family Consultant that she “really likes her” and that “she definitely wants to stay overnight at her father’s house”. J told the Family Consultant that he really wanted to stay overnight at his father’s house and said, “we never get to see him that much” and admitted that he really misses his father.

1. It is clear from the text that B sent her mother when she was with her father on 29 November 2012 that she was very upset (perhaps illogically so) at being in the household with Ms C and begged the mother to come and pick her up. The mother appropriately reassured her in responding text messages.

2. It is reasonable to infer that the mother’s inappropriate behaviour arises out of her emotional reaction to the father’s new relationship and the fact that he is starting a new family with a new woman so soon after their separation. It is also reasonable to infer that the father’s bad behaviour is largely motivated by reaction to what he perceives to be the mother going back on arrangements that he believed they had which the mother said were of a temporary trial nature.

CONCLUSION ABOUT BEST INTERESTS

1. The order sought by the mother is that the children not be left alone with Ms C in the absence of the father at all. Given the order in relation to the father being required to offer the care of the children to the mother in the event that he is unable to do so for a period in excess of three hours (and assuming that the mother would at all times take up that offer), the effect of the order sought by the mother is that Ms C not be left alone with the children for a period of up to three hours. The only reason to justify making such an order is to demonstrate sensitivity to the mother’s emotional reaction to the father’s new relationship with Ms C. It does not appear however that either of the younger children has difficulty spending time with Ms C. I am prepared to infer that B will probably be able to cope, on an interim basis, with being alone with her siblings supervised by Ms C for up to three hours. I will make an order however that the father is hereby restrained from allowing the children to spend time alone with Ms C in the absence of the father for any period in excess of three hours.

2. The parties have agreed that there is no restriction on either of them attending school and sporting events and extra curricular activities. It is likely that the mother would attend such events during periods of time when the children are with their father. In those circumstances and given the Sport G incident and the pending proceedings for protection orders taken on behalf of Ms C, it is inappropriate that Ms C deliver the children to or from any such events. There should however be no restriction on Ms C picking the children up from school at the commencement of any time that they are spending with their father during school term (there would be no need for the mother to be present at school at those times).  I make an order of my own motion that the mother not be present at school at times when the children are due to commence time after school with their father. Otherwise the father be and is hereby restrained from allowing Ms C to deliver the children to or collect the children from school or extra curricular activities or be present when the father is attending to collecting the children from or delivering them to school or extra curricular activities.

3. I have regard to the s 60CC (2) and (3) matters to which I have previously referred.

4. As I have said, hopefully the work that Mr L does with the parties might improve the position to some degree but in the interim I am asked to make orders which I find are in the best interests of the children given the current positions of their parents.

5. It is not in B’s best interests, at the age of 10, to give her the responsibility of choosing which parent she might please by making an order which includes the words “if [B] so wishes”.

6. I conclude it is in the children’s best interests to make the orders sought by the mother in relation to term time with an ability to revisit those orders after family therapy and some time has elapsed.

PROPERTY

1. The parties agree that the mother should receive $50,000 by way of a partial property order to assist her to fund the current litigation. The source of those funds will be from either the proceeds of the sale of the former matrimonial home at Town S (the current property in which the mother lives) or a property in Queensland. Consent orders are being made today in relation to the marketing and sale of the Queensland property. However the parties seem to have a relatively small equity in the Queensland property. The father has agreed that the mother receive $25,000 from the sale of that property.

2. The parties have, up until this point in time, agreed to attempt to market the Town S property. The mother does not want to continue to live in it. Once the Town S property is sold the mother will need to rent in the area in which the parties agree the mother will live with the children until her relocation application is dealt with. An issue has arisen between the parties as to whether or not the parties continue to list the Town S property for sale. The father wants the property taken off the market until Spring 2013 on the basis that it will “refresh” the marketability of the property. The mother does not wish that to happen. The mother is not suggesting that the list price be reduced. Both parties had agreed that it be listed for the sum of $700,000 and continue to agree upon that listing price. There is no evidence upon which I could make a finding that taking the property off the market would “refresh” its marketability and accordingly I will make an order that the parties continue to attempt to sell the Town S property. The mother can receive $50,000 from the proceeds of sale, or such lesser sum as is necessary to make up a total of $50,000 in the event that the mother receives monies from the earlier sale of the Queensland property.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 April 2013.

Associate: 

Date:  30 April 2013