Maratina and Maratina

[2007] FamCA 594

FAMILY COURT OF AUSTRALIA

MARATINA & MARATINA [2007] FamCA 594

FAMILY LAW - PROPERTY - Negotiated settlement of interim financial issues – clarification obtained and recorded about several agreed matters, in particular, child support
FAMILY LAW - CHILDREN - With whom a child spends time - With whom a child communicates - Communication by telephone – Husband sought communication on everyday when children to not reside or spend time with him – Best interests of children – Wife’s contrary proposal found to meet legitimate needs of parents and be in best interests of children

Family Law Act 1975

Goode & Goode (2006) FLC 93-286
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598 at 81,944

APPLICANT: Mrs Maratina

RESPONDENT: Mr Maratina

INDEPENDENT CHILDREN’S LAWYER: Pearsons Schetzer & Associates

FILE NUMBER: MLC 3288 of 2007

DATE DELIVERED: 4 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H. Dellidis

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr D.J. Kent-Hughes

SOLICITOR FOR THE RESPONDENT: Kavanagh Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms L. Dorian

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Pearsons Schetzer & Associates

Orders

1. That there be  orders in terms of the Minutes of Consent Orders signed by the parties and dated 4 May 2007 (“the Minute”).

2. That my reasons for judgment delivered this day be transcribed and when transcribed the original be placed on the court file and a copy be sent to each of the parties.

3. That the parties and their legal practitioners attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on 16 July 2007 at 2:15pm.

4. Each party must exchange at least 14 days before the Conciliation Conference the following documents if relevant and not already exchanged:

   (a)the party’s three most recent taxation returns and assessments;

   (b)any superannuation documents for each superannuation interest of the party, including:

   (i)the completed Superannuation Information Form;

   (ii)for a self-managed superannuation fund, the trust deed and the last three financial statements;

   (c)for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

   (d)for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

   (e)for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s memorandum and articles of association;

   (f)for any trust, the trust deed;

   (g)for any partnership, the partnership agreement;

   (h)a market appraisal of any item of property in which a party has an interest;

   (i)All documents containing evidence about:

   (i)the financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

   (ii)financial contributions made at the commencement of cohabitation;

   (iii)any inheritances, gifts or compensation payments received during cohabitation;

   (iv)any purchase or disposal of property in the 12 months prior to and since separation;

   (v)any increase or reduction of liabilities since separation; and

   (vi)the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

5. That each party exchange a market appraisal or valuation of any asset in dispute no later than 14 days before the conciliation conference.

6. That the legal practitioner for the wife and the legal practitioner for the husband each comply with Rule 19.04 of the Family Law Rules 2004 in relation to costs by the conciliation conference date and notwithstanding the provisions of Rule 19.04(7) the conciliation conference be treated as a court event.

7. That the legal practitioner for each party provide to the Registrar who convenes the conciliation conference an open letter in which the information required under Rule 19.04(2) is set out together with the amount of monies already paid and the source of any monies so paid insofar as that source is known to the legal practitioner, in the event that the costs were paid by cheque the notification include details of the account from which the cheque was drawn, in the event that costs have been paid by credit card the notification include the name of the credit card holder and the number of the account, in the event that the costs were paid by cash then the costs notification include the name of the person who tendered the cash.

8. That the father communicate by telephone with the children A born … December 1998 and C born … May 1995 on Mondays, Wednesdays and Saturdays when he does not have the children living with him or otherwise spending time with him, such communication to be for a period of 15 to 20 minutes (in total) commencing at 7pm. For the purpose of this communication, the father place a telephone call to the mother’s mobile telephone service …, the mother ensure that the telephone service is switched on, adequately charged, within a mobile service area and, as far as practicable, free of any other calls.  Finally, the mother is to afford the children privacy when they are speaking to the father.

9. That the independent children’s lawyer explain to the children the Orders that I have made for telephone communication between them and the father and if at all possible do so prior to 5pm this afternoon.

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit A”.

2. That the solicitors for the Applicant Wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 3 days.

3. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

Minutes of Orders

1. The property at R in the state of Victoria, ( “the real property”) be placed on the market for sale in October 2007;

2. The selling agent to be appointed, the reserve price set, the mode and terms of the sale are to be agreed between the husband and wife and failing same, to be determined by the said selling agent or a selling agent to be appointed by the President of the Real Estate Institute of Victoria;

3. Pending settlement of the sale pursuant to these Orders, the husband pay $75.00 being the mortgage instalments, from this day, pursuant to the mortgage loans to ANZ Bank account number …, and account number … weekly in advance commencing 4 May 2007 by direct deposit by the husband into the wife’s ANZ Access Advantage Account: BSB Number …, Account number: …;

4. The wife shall forthwith pay the arrears owing on the said mortgage loans, such arrears to be taken into account at the final property settlement between the parties;

5. Pending settlement of the Sale

   (a)the wife have sole right to occupy the real property;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these Orders;

   (c)neither party encumber the real property without the consent in writing of the other party.

6. The proceeds of the sale of the real property pursuant to these Orders be applied;

   (a)First, to pay all costs, commissions and expenses of the sale

   (b)Secondly, discharge the mortgage loans and any other encumbrance affecting the real property including water and council rate;

   (c)Thirdly, the balance to be held in interest bearing account in the joint names of the properties, pending further order.

7. The husband pay to the wife by way of interim spousal maintenance, the sum of $50.00 per week, payable weekly in advance commencing 4 May 2007 by direct debit by the husband into the wife’s ANZ Access Advantage account: BSB number …, Account number: …

8. Each of the husband and wife be restrained from encumbering or dealing with any item of property in which they have an interest, without the written consent of the other party.

9. Each of the husband and wife shall notify the Child Support Agency of the husband’s contribution to payments of the mortgage loan accounts regarding the former matrimonial home in which the wife and children reside, to be taken into account by the Child Support Agency regarding the husbands child support liability.

10. The parties attend a Conciliation Conference on 16 July 2007 at 2.15pm.

11. The husband be permitted to have a family member attend on his behalf to sign out and collect the children from school for the purposes spending time with them pursuant to paragraph 2(c) of the Orders made 2 April 2007

12. Any request for proposed changes to the parenting Orders made this day or on 2 April 2007 shall be made by the party requesting same in writing 48 hours in advance save in the event of an emergency.

IT IS ORDERED

1. That the husband have telephone contact with the children while they are living with the wife between 7:00pm and 7:15pm on Monday, Wednesday and Saturday with the husband to call the wife’s mobile telephone number and the wife to ensure that the mobile telephone is fully charged and available at that time.

BY CONSENT IT IS ORDERED

1. All extant interim applications be otherwise dismissed

2. Certify for Counsel.

3. Liberty to apply.

4. That 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Maratina & Maratina.  

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3288 of 2007

Mrs Maratina

Applicant

And

Mr Maratina

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The matter was listed before me today in the defended interim hearing list anticipated to take half a day.  I was asked to, and have, made orders by consent resolving the issues in relation to arrears of mortgage payments affecting the former matrimonial home, ongoing payment of mortgage instalments until a sale of the property in October 2007 and settlement some months thereafter. 

2. I wish to record a few points of clarification which I have obtained from the parties in the context of the agreement which they reached today.

3. Paragraph 4 of the consent orders provides that the wife will forthwith pay arrears owing on the mortgage to ANZ Bank.  The mortgagee, ANZ Bank, has taken proceedings to call up its mortgage and seek a sale of the property in the state courts.  The arrears of mortgage are some $2000 or thereabouts and that is what is required to satisfy the arrears.  It is the case that for some time, neither party has been making a contribution to instalments due under the mortgage. 

4. The wife is in receipt of an income-tested pension or benefit.  She does not work outside the home and has the care of children aged eight and a half and 12 years.  She did not, as far as I read the material, work outside the home prior to separation which occurred under the one roof in November 2005, with the husband vacating the property on 15 June 2006.  The husband is a construction worker and he earns something in excess of $31,000 per annum.  He is a PAYE taxpayer. 

5. In order to meet the arrears and discharge her obligations pursuant to paragraph 4, the wife says that she will be borrowing the money from her family.  That will be a liability which she will seek be taken into account subject to the discretion of the learned trial Judge at a final hearing of this matter or, if the matter is again adjusted between the parties, as part of that adjustment. 

6. The next issue which requires some clarification is in paragraph 9 of the consent orders.  The husband and the wife are to notify the Child Support Agency of the husband's contribution to payments pursuant to the mortgage and that those payments are intended to be taken into account by the Child Support Agency regarding the husband's child support liability.  That provision reads to me a lot like a non-agency payment notification. 

7. I am informed from the bar table that, until recently, the husband's obligation to pay child support for the children was approximately $155 per month.  It was reduced to $44 per month, apparently upon lodgment by the husband of information concerning his income.  That puzzled me somewhat because his income appears to have been quite stable and static as far as documents on the court file are concerned.  He earns something in the vicinity of $615 per week gross as a road construction worker for what appears to be a company.  When I look at the tables and the ready reckoner, unless they have not been updated when they should have been, the husband’s liability for child support based on a child support income of about $31,000 per annum, would be more in the vicinity of $85 or $88 per week for this family. 

8. I was informed by counsel who appears on behalf of the father,

   
   

   Mr Kent-Hughes, that it may be that the husband’s income has been reassessed or restated by his employer to take into account repayment of a loan.  Apparently it is the case that the husband has borrowed monies from his employer to fund these proceedings.  It may be the case that instalments in repayment of those monies are deducted from the husband’s income before his income is stated for child support purposes.  My observation is that, if the Child Support Agency (or indeed the wife) was aware of this taking place, it is unlikely that those repayments would be allowed or taken into account as a liability which reduces the husband's child support income.  I make this observation because one of the matters not litigated before me today is how the wife is going to pay her legal costs.  She had an application for a litigation funding order but has not proceeded with it.  It is always helpful, however, to know how the other party funds their part of the proceedings. 

9. I am advised by counsel for the mother that she will be making a change of assessment application to the Child Support Agency in reliance upon the husband's income as deposed to by him in his Form 13 financial statement on 16 April 2007.  That is the income of about $31,000 per annum.  At that time, the agency can look at the impact, if any, that the payment of the mortgage from today onwards is to have on the husband's liability. 

10. The next item in respect of which clarification was sought and obtained was paragraph 12.  It provides:-

    Any request for proposed changes to the parenting Orders made this day or on 2 April 2007 shall be made by the party requesting same in writing 48 hours in advance save in the event of an emergency.

    It is now clear that the proposed changes cannot be effected unilaterally.  The purpose of the paragraph is to make sure that changes are not requested so soon prior to the commencement of time or communication between the children and the father that they cannot be effected or really properly agreed.  Any changes are to be sought and finalised 48 hours in advance. 

11. These are the only comments I make on the orders of today, save to say that

    
    

    I have put each party on notice that the practitioners are required to comply with order 19.04 of the Family Law Rules 2004 in relation to legal costs and

    
    

    I will be making an order that they furnish that information to the court within seven days. 

DISCUSSION

1. After some discussion between the parties and further submissions, I turn to determine the application of the mother for orders that the father communicate with the children on three occasions each week, being Monday, Wednesday and Saturdays at 7pm for something like 15 minutes on each occasion, when he can place a call to the mother's mobile telephone number, service …, and the mother will ensure that the telephone is turned on, sufficiently charged, within a mobile telephone service area and reasonably available to accept his call. 

2. The mother says that without the benefit of an order regularising the telephone communication between the children and the father, the father will speak daily, at least with A, if not, with C, and that she finds this has a destabilising influence on A and is undermining of her authority and relationship with the children.

3. The submissions made on behalf of the mother are squarely supported by the affidavit material sworn by the mother on 23 March 2007 prior to the existing orders for time being made.  It is clear that a significant dispute between the parties arose and involved A contacting the father by telephone in the middle of an evening or other meal with the mother, and as a direct result of the mother chastising the child or seeking to discipline her.  That much is common ground.  It is not common ground as to whether the mother slapped the child before the child slapped the mother. 

4. The father seeks an order that he be able to communicate with the children for 10 to 15 minutes on every day on which he does not have the children living with him or spending time with him. 

5. The current orders provide for the father to see the children from 3:30pm to 7:30pm every Thursday afternoon and each second weekend from 5pm on Friday to 7:30pm on Sunday.  Inferentially, the father seeks an order in relation to Monday, Tuesday, Wednesday of every week and Friday, Saturday, Sunday of each alternate weekend when the children are not living with him. 

6. The submissions made by counsel on behalf of the husband were confined to the child, A.  I accept that similar submissions could be made in relation to C, perhaps to a slightly lesser extent but of the same nature.  It is contended on behalf of the husband that A wants to live with him.  If she cannot live with him, she wants to talk to him and she wants to talk to him on every day that she does not otherwise see him.  Those wishes were described as being very strong. 

7. I take into account when determining this matter, like any parenting matter, the legislative pathway set out by the Full Court in Goode & Goode (2006) FLC 93-286. In Goode's case, it was acknowledged by the Full Court that the procedure for making interim parenting orders will be an abridged process where the scope of the inquiry is significantly curtailed.  At paragraph 68, the Full Court said:

   Where the court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The court also looks to less contentious matters such as agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future.

8. In this case, there are no set arrangements for telephone communication between the children and the father but I am satisfied it has been occurring very regularly and quite possibly on a daily basis since separation.  That does not mean, however, that it is appropriate that it continue into the future if, upon examining the primary and the additional considerations, I determine that it is not in the best interests of the children to do so.  That is because it is still the child's best interests which are the paramount consideration. 

1. I take into account the primary considerations being the need to protect the children from abuse, psychological harm, neglect or family violence.  This is not a matter which is raised by either party in the context of telephone communications.  I also take into account the benefit of the children having a meaningful relationship with both of the children's parents, in particular with the father, for whose benefit, along with the children, the communication order would be made.  Everyone agrees that the children should have a meaningful relationship with each parent.  

2. As I have said, the current residential regime is such that the father sees the children every Thursday and then each second weekend for the extended times of 5pm Friday to 7:30pm on Sunday.  The father contends that A has very strong wishes, by which I take it he means views, in favour of speaking to the father every day.  I have no doubt that that is what the child has expressed to the father.  Views, however, are a fairly complex matter which I am required to take into account pursuant to s 60CC(3)(a).  A can express views, what weight I then accord those views, being the views of an eight and a half-year-old young girl, is another matter. 

3. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.  Previously there was a similar provision,[1] which required the court to take into account the child’s ‘wishes’.  There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent,

   
   

   I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act. 

   [1] The repealed s 68F(2) Family Law Act 1975 (Cth).

4. The Full Court of the Family Court considered children’s wishes in

   
   R & R: Children's Wishes

   (2000) FLC 93-000. The Court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:

   The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.  

5. There is a distinction between the concept of children’s wishes and children’s views.  ‘Views’ will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion.  ‘Wishes’ are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind.  The requirement to focus on the child’s views, as opposed to wishes, means that I may have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish.  

   
   

   I agree with the reference in the Revised Explanatory Memorandum[2] that consideration of the children’s views will:

   allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[3]

   Consideration of a child’s views does not exclude consideration of a child’s wishes. 

   [2] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

   [3] Ibid paragraph 56.

6. Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare.  This process was is described by the Full Court in R v R , in relation to children’s wishes, as follows:-

   42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications.  Ultimately the overall welfare of the child is the determinant.  That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view. 

   54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested.  Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.

7. I consider that in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’. 

8. The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[4] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[5]

   [4] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.

   [5] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.

9. I take into account the likely effect on the children of not being able to speak to the father daily as they have likely been doing up until now.  The effect will be that they will not have communication with their father on that weekend where they do not live with him or on the Monday, Tuesday or Wednesday of any week.  I do not see, given the strong relationship that clearly exists between the father and A that that is likely to impact on the relationship at all. 

10. The relationship that the daughter shares with the father does not, on my reading of the affidavit material, appear to be sufficiently fragile that it will be compromised by there being no telephone communication those days.  If I am wrong, it is likely to indicate that the bond is not as strong as the father deposes. 

11. I note that the father does not press for the more frequent telephone communication in relation to C, with whom he deposes his relationship as somewhat more estranged.  I can infer that the husband is not seeking to use the communication to get closer to C.  It is really a matter, as far as the father is concerned, of maintaining a bridge between himself and the daughter. 

12. I do not see that there is any relevant practical difficulty or expense associated with telephone communication. 

13. Many of the additional factors, such as the attitude of the parties to the children, to the responsibilities of parenthood, are matters which are best looked at at a final hearing rather than judged in isolation or in a vacuum on an interim basis.  However, I do mention here it is the responsibility of each parent to encourage and to permit the children to be as happy as possible in the home of the other party.  In a case such as this, insofar as it impacts on the father, that means that it is his responsibility to encourage and to promote the relationship between A and her mother.  There is nothing in the material to which I was referred for this hearing which indicates that it is otherwise that in A’s bests interests to maintain an enjoyable relationship with the wife and her brother C. 

14. In summary, I accept that A is strongly of the view that she would like to talk to the father every day.  I take it for granted that the father has a strong desire to talk to A every day.  However, weighed against this consideration is the need of the children to live in a settled and uncomplicated environment when they are in the care of the wife.

15. I will make the orders that are sought by the wife and that will be telephone contact on Monday, Wednesday and Saturdays.  I note that arrangement will work so that, before every Thursday evening period that the children spend with the husband, they talk to him on the Wednesday night and plan what they are going to do.  Before every alternate weekend when they live with their father, they are seeing him on the Thursday night at which time they can make plans for the forthcoming weekend. 

16. I am satisfied that the orders which I will make meet the needs of the children to communicate with the husband but also enable the wife to maintain a stable environment in her own household.  The time which each child spends in the household of one of their parents should be spent participating in the day to day home life of that parent.  For these reasons, I am satisfied that my orders on this narrow issue meet the legitimate needs and concerns of the parents but are also in the best interests of the children. 

17. Finally, I note that the orders which I have made are consistent with the view the independent children’s lawyer. 

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 June 2007