Mevers and Mevers

FAMILY COURT OF AUSTRALIA

MEVERS & MEVERS

[2010] FamCA 1186

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Supervision – Ch 15 expert
FAMILY LAW – MAINTENANCE – Interim spousal maintenance
FAMILY LAW – PROPERTY SETTLEMENT – Interim

Family Law Act 1975 (Cth) ss 60CC, 72, 74, 75 & 79

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

APPLICANT:

Ms Mevers

RESPONDENT:

Mr Mevers

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6218

2010

DATE DELIVERED:

22 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Durra

SOLICITOR FOR THE APPLICANT:

Meehans Solicitors

COUNSEL FOR THE RESPONDENT:

Mr P Sansom

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Pending further order the children K born … May 2002, D born … May 2004, L born … July 2007 and P born … October 2008 ("the children") live with the wife subject to Order 2 herein.
Pending further order the husband shall spend time with the children:
a)    On 25/12/10 from 9:00 am to 1:00 pm;
b)   On 30/12/10 from 10:00 am until 5:00 pm;
c)   On 6/1/11 from 3:00 pm to 7:00 pm;
d)   from 15/1/11 and each fortnight thereafter from 10:00am Saturday to 5:00 pm Sunday
e)   On 24/1/11 and each alternate Monday thereafter from 4:00 pm to 7:00 pm
f)    And on the birthdays of the children:
(i)…/5/11 (D’s birthday) from 4:00 pm to 7:00 pm (a weekday) and
(ii)…/5/11 (K’s birthday) (a weekday) from 4:00 pm to 7:00 pm and
(iii)…/7/11 (L’s birthday) (a weekend) from 2:00 pm to 7:00 pm if otherwise not with him
It is a condition of that order that the Paternal Grandfather supervise the husband’s time with the children and that prior to the first occasion of time spent between the husband and the children pursuant to these orders, the solicitor for the husband lodge with the Court and provide to the legal representatives of the wife and the ICL an undertaking executed by the paternal grandfather in the form which is marked exhibit 6.
Unless the parties agree to the contrary changeovers between the parties shall take place at the McDonalds Restaurant at ….
Pending further order the parties are to facilitate the husband speaking to the children by telephone on the days they are not with him between 7:00 pm and 7:30 pm; and to the wife between those times on each Saturday they are not with her.
That a report be prepared by a forensic psychiatrist agreed between the parties and that the report address the following matters:-
a)   any views expressed by the children and any factors such as the children's maturity or level of understanding that are relevant to the weight that should be given to the children's views;
b)   The nature of the relationship of each of the children with the parents, and other significant persons.
c)   The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
d)   The likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents.
e)   The practical difficulty and expense of the children spending time with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
f)   The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs.
g)   The maturity, sex, lifestyle and background of the children and of either of the children's parents and any other characteristics of the children that the court thinks are relevant.
h)   The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents.
i)   Any family violence involving a child or a member of the children's family and the impact of such violence on the child/ren.
j)   Any further matters that relate to the care, welfare and development of the children that may be relevant to the court.
By consent and pending further order each of the parties is restrained from making derogatory remarks about the other parent in the presence or hearing of the children or any of them, and shall use their best endeavours to ensure that no third party makes any derogatory remarks about the other parent in the presence or the hearing of the children.
By consent and pending further order each of the parties is restrained from discussing the family law proceedings in the presence or the hearing of the children or any of them, and shall use their best endeavours to ensure that no third party discusses the family law proceedings in the presence or the hearing of the children other than the school counsellor that the children have already attended upon and any professional who meets with the children pursuant to an order of the Court.
The parties shall each authorise the Independent Children's Lawyer and the Chapter 15 expert appointed to report, to communicate with the following persons and seek any information that they may request in relation to:
a)the wife, husband and any of the children from Dr S; and
b) In relation to the child K from Ms H, Counsellor;
The husband shall authorise the Independent Children's Lawyer and the Chapter 15 expert appointed to report, to communicate and obtain all information that either may request in relation to the husband from:
a)Dr V; Consultant Psychiatrist;
b)Dr J, Consultant Psychiatrist; and
c)Ms H, Counsellor.
Pending further order the parents are restrained from making arrangements for any of the children to attend upon a mental health professional or counsellor /therapist for assessment or counselling/therapy without first consulting with the other party and the Independent Children's Lawyer.
The parents shall forthwith arrange to attend for family therapy upon a family therapist and shall:
a)   Continue to attend for such therapy as directed by the therapist;
b)   Make the children available to participate in such therapy as requested by the family therapist; and
c)   Follow the reasonable direction of the family therapist in relation to the children's time with each parent; and
d)   be equally responsible for the costs of such therapy.
The court noted that order 12 is made with the consent of the parties save in relation to 12(d).
By consent, without admissions and pending further order the parties are restrained from physically disciplining the children or allowing any third party to physically discipline the children.
Pending further order the husband shall pay to the wife, direct or as she may otherwise direct, $225.00 per week by way of interim spousal maintenance. The first payment shall be made within 7 days and payments shall be made weekly thereafter.
Within 14 days from the date of these orders or as soon as practicable, whichever is the later, the parties shall sign all documents and do all things necessary to cause the net proceeds of sale of the properties at H Street and E Street to be applied to the mortgage/s secured on the property at M Street.
Leave is granted to the parties to restore these proceedings to the list in relation to the wording or implementation of these orders within 14 days on notice to the Associate to Justice Loughnan and the other parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6218 of 2010

MS MEVERS

Applicant

And

MR MEVERS

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings for interim orders in relation to parenting and financial relief. The hearing commenced at about 3:25 pm on 10 December 2010 and concluded just after 5:00 pm. It was not practicable for the parties’ counsel to remain after 5.00 pm and rather than deliver a judgment ex tempore, judgment was reserved. In the usual pattern of Sydney family law litigation there is extensive written evidence. Unfortunately the result is somewhat more prolix than would have been the case if judgment had been given at the time.

Short history

The wife and husband are both 35 years of age. The wife is engaged in home duties. The husband is employed by a bank. The parties started to live together in April 1995 were married in March 1995 and separated on the 14 May 2010, when the husband left the rented premises occupied by the family.

Children

The parties have four children:
K was born in May 2002 and she is 8 years of age;
D was born in May 2004 and he is 6 years of age;
L was born in July 2007 and he is 3 years of age; and
P was born in October 2008 and she is 2 years of age.
K and D attend a Christian Primary School and in 2010 they were in Year 2 and Kindergarten respectively. The older children require spectacles but otherwise there is no issue about their physical health.

The approach to interim parenting proceedings

The hearing was conducted on the papers and therefore it was not generally possible for the Court to make findings of fact on disputed issues of fact.
In Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 the Full Court gave the following guidance as to the framework for interim parenting decisions:
81.      In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.      In an interim case that would involve the following:
(a)      identifying the competing proposals of the parties;
(b)      identifying the issues in dispute in the interim hearing;
(c)      identifying any agreed or uncontested relevant facts;
(d)      considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)      deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)       if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)      if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)      if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)       if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)       if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)      even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The competing proposals of the parties

The husband seeks orders in accordance with his Response filed 17 November 2010:
1.That the children [K] born […] May 2002, [D] born […] May 2004, [L]born […] July 2007 and [P] born […] October 2008 ("the children") live with the mother subject to Order 2 herein.
2.That subject to Order 3 herein that the children live with the father as follows:
2.1. In week 1 from 2:30 pm, or if the children attend school/preschool, from after school/preschool, on Thursday until 9:00 am or commencement of school/preschool on Monday (or if Monday is a public holiday until 5:00 pm on Monday); and
2.2. In week 2 from 2:30 pm, or if the children attend school/preschool, from after school/preschool, on Thursday until the commencement of school/preschool or 9:00 am on Friday.
2.3. on the children's birthdays as follows unless otherwise agreed between the parties:
2.3.1. if the birthday falls on a weekday when the children are with the mother from 5.00 pm to 7.00 pm.
2.3.2. if the birthday falls on a weekend when the children are with the mother from 10.00 am to 2.00 pm
2.4. On Father's day from 10:00 am until 6:00 pm, if Father's day falls on a weekend that the children would otherwise be living with the mother.
2.5. On the father's birthday as follows unless otherwise agreed between the parties:
2.5.1. if the birthday falls on a weekday when the children are with the mother from 5.00 pm to 7.00 pm.
2.5.2. if the birthday falls on a weekend when the children are with the mother from 10.00 am to 6.00 pm.
2.6. For one half of all New South Wales holidays (except Christmas Eve to Boxing Day) with the parties to agree as to which half and in the absence of agreement, the father to have the first half in even years and the second half in odd years;
2.7. For the period Christmas Eve to Boxing Day as follows unless otherwise agreed between the parties:
2.7.1. from 9.00 am Christmas Eve to 1.00 pm Christmas Day in even years; and
2.7.2. from 1.00 pm Christmas Day to 6.00 pm Boxing Day in odd years.
3. That the father's time with the children be suspended:
3.1. On Mother's day from 10:00 am day until 6:00 pm, if Mother's day falls on a weekend that the children would otherwise be living with the father.
3.2. On the mother's birthday as follows unless otherwise agreed between the parties:
3.2.1. if the birthday falls on a weekday when the children are with the father from 5.00 pm to 7.00 pm.
3.2.2. if the birthday falls on a weekend when the children are with the father from 10.00 am to 6.00 pm.
3.3. on the children's birthdays as follows unless otherwise agreed between the parties:
3.3.1. if the birthday falls on a weekday when the children are with the father from 5.00 pm to 7.00 pm.
3.3.2. if the birthday falls on a weekend when the children are with the father from 10.00 am to 2.00 pm
3.4. For the period Christmas Eve to Boxing Day as follows unless otherwise agreed between the parties:
3.4.1. from 9.00 am Christmas Eve to 1.00 pm Christmas Day in odd years; and
3.4.2. from 1.00 pm Christmas Day to 6.00 pm Boxing Day in even years.
4.That the father be at liberty to telephone the children each day between 6:30 pm and 7:30 pm while the children are in the mother's care.
5.That within 24 hours of these Orders the mother advise the father on the address and landline telephone number of the residence where she is residing with the children.
6.That the mother be restrained from changing the children's residence without providing the father with 30 days prior written notice of her intention to change the children's residence together with the address and landline telephone number.
7.That pursuant to s68L of the Family Law Act 1975 the children be independently represented and it is directed that the New South Wales Legal Aid Commission arrange such representation.
8.That the solicitor for each party shall, within 7 days, forward to the Legal Aid Commission copies of all applications and affidavits filed herein on behalf of their client.
9.That the mother attend and complete a Parenting After Separation parenting course.
10.That [K] attend counselling with [Ms H].
If the Court decides that there needs to be a level of supervision of the his time with the children, the husband seeks orders in the alternative in accordance with a “Minute of Orders in the Alternative” dated 10 December 2010[1] as follows:
[1] Exhibit 5
“(A) That in the alternative to the orders sought by the father in his Response the father seeks that he spend time with the children
a)   On 19/12/10 from 10:00 am to 5 pm;
b)     On 25/12/10 from 2pm to 7 pm;
c)     On 30/12/10 from 9:00 am until noon 31/12/10;
d)     from 8/1/11 and each fortnight thereafter from 9:00am Saturday to 5 pm Sunday
e)     On 14/1/11 and each alternate Friday thereafter from 3 pm to 7 pm
f)   And on the birthdays of the children including:
(iv)[…]/5/11 ([D’s] birthday) from 4 pm to 7 pm (a weekday) and
(v)[…]/5/11 ([K’s] birthday) (a weekday) from 4 pm to 7 and
(vi)[…]/7/11 ([L’s] birthday) (a weekend)
(vii)From 2 pm to 7 if otherwise not with him
g)     That the paternal grandfather be personally present during all of such times and changeovers take place at his home at […] NSW
h)     That the father be at liberty to speak to the children daily by telephone between 6.30 pm to 7.30 pm and the mother facilitate such communication and ensure the children’s mobile phones are charged and on.
The Independent Children’s Lawyer seeks orders in terms of a Minute as follows:
Pending further order of the Court:
1.That the father spends time with the children in accordance with the document entitled "Fathers Minute of Orders in the alternative" save that the words "be present during" be replaced with the word "supervise" in Order 7 contained therein.
2.That on an expedited basis, pursuant to Section 62G of the Family Law Act a report be prepared by a Family Consultant nominated by the Manager of the Family Dispute Services of this Registry of the Court in relation to the children, [K], born […] May 2002, [D], born […] May 2004, [L], born […] July 2007 and [P], born […] October 2008 ("the children").
3.        To address the following matters:-
a.any views expressed by the children and any factors such as the children's maturity or level of understanding that are relevant to the weight that should be given to the children's views;
b.The nature of the relationship of each of the children with the parents, and ther significant persons.
c.The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
d.The likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents.
e.The practical difficulty and expense of the children spending time with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
f.The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs.
g.The maturity, sex, lifestyle and background of the children and of either of the children's parents and any other characteristics of the children that the court thinks are relevant.
h.The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents.
i.Any family violence involving a child or a member of the children's family and the impact of such violence on the child/ren.
j.Any further matters that relate to the care, welfare and development of the children that may be relevant to the court.
3.Each of the parties be restrained from making derogatory remarks about the other parent in the presence or hearing of the children, and shall use their best endeavours to ensure that no third party makes any derogatory remarks about the other parent in the presence or the hearing of the children.
4.Each of the parties be restrained from discussing the family law proceedings in the presence or the hearing of the children, and shall use their best endeavours to ensure that no third party discusses the family law proceedings in the presence or the hearing of the children other than the school counsellor that the children have already attended upon and any professional who meets with the children pursuant to an order of the Court.
5.That the parties each authorise the Independent Children's Lawyer and the Family Consultant appointed to prepare the Family Report to communicate with the following persons and seek any information that they may request in relation to:
(i) the mother, father and any of the children from Dr [S];
(ii) In relation to the child [K] from [Ms H], Counsellor;
6. That the father authorise the Independent Children's Lawyer and the Family Consultant preparing the Family Report in these proceedings to communicate and obtain all information that either may request in relation to the father from:
(i)     Dr [V]; Consultant Psychiatrist;
(ii)     Dr [J], Consultant Psychiatrist;
(iii)    [Ms H], Counsellor.
7. That neither party make arrangements for any of the children to attend upon a mental health professional or counsellor/therapist for assessment or counselling/therapy without first consulting with the other party and the Independent Children's Lawyer.
8.Both parents will forthwith arrange to attend for family therapy upon a family therapist and shall:
a.Continue to attend for such therapy as directed by the therapist; and
b.Shall make the children available to participate in such therapy as requested by the family therapist; and
c.Shall follow the reasonable direction of the family therapist in relation to the children's time with each parent; and
d.        be equally responsible for the costs of such therapy.
9.Without admissions, the parties are restrained from physically disciplining the children or allowing any third party to physically discipline the children.
10.That this matter be relisted for further consideration upon the release of the Family Report.

Through her counsel the wife agrees to the orders proposed on behalf of the ICL as to paragraphs 3, 4, 5, 6, 7, 9 & 10. She also agrees with the principle of paragraph 8 but does not want to share the costs. As to the living arrangements, with minor variations, the wife agrees with the husband’s alternate proposals but with the level of supervision proposed by the ICL. Thus, in lieu of the husband’s proposals the wife proposes that the children spend time with the husband:
1.On 18/12/10 from 10:00 am to 5 pm;
2.On 25/12/10 from 9 am to 1 pm;
3.On 30/12/10 from 10:00 am until 5:00 pm;
On 6/1/11 from 3:00 pm to 7:00 pm
4.from 15/1/11 and each fortnight thereafter from 10:00am Saturday to 5 pm Sunday
5.On 24/1/11 and each alternate Monday thereafter from 4 pm to 7 pm
6.The wife opposes orders for time on the birthdays of the children;
7.That the paternal grandfather supervise all of the father’s time but with changeovers take place at the McDonalds restaurant […] NSW
In relation to supervision, the wife seeks that prior to the commencement of time, the paternal grandfather provide an acknowledgement of the obligations he would have as supervisor. In that regard the Independent Children's Lawyer has provided a Minute[2] containing certain undertakings as to the obligations of the supervisor, with which parties agree. In the event that I require that the paternal grandfather undertake supervision in the way that is suggested on behalf of the children I will order an executed copy of that document be provided to the Court.
[2] Exhibit 6
It is the wife’s proposal that changeover should take place in a public place, rather than the home of the paternal grandfather, so as to avoid conflict.
In lieu of the husband’s proposals the wife proposes that the children communicate with the husband by telephone between 7:00 pm and 7:30 pm and she seeks that she be able to communicate with them similarly, on each Saturday night they are with him.

The issues in dispute:

The major issue is whether or not the husband’s time with the children should be supervised and if so, how closely.
The ICL seeks an expedited Family Report from a Family Consultant. The parents would like to commission a report from a forensic Psychiatrist.
Through her counsel the wife agrees with family therapy but does not want to share the costs.

The independent evidence

Dr V has seen the husband. She is a Psychiatrist and refers[3] to certain stress factors that have caused the husband to have outbursts. There is a report from March 2010 of outbursts in front of the children, that the husband’s mind ‘went’ and that he was angry and scary. The Independent Children's Lawyer also took me to Dr V’s report from October 2010 whereby the husband is making progress with medication and counselling and that in the opinion of the Psychiatrist he is no threat to the children. The husband had undertaken excessive drinking, was involved in domestic violence and had depression but is not bipolar.
[3] Exhibit 1
There is material from the NSW Police which is Exhibit 3. On 8 July 2003 the husband committed common assault on the wife and the police commented on the husband’s aggressive attitude to them at that time. The wife reported intimidation and assault from April 2010. That report referred to the children being sad when dad yelled at mum. There are serious allegations of violence and controlling behaviour made against the husband. I was taken to police reports from September 2010 where it is asserted that the husband was very aggressive and that he suggested that he was gong to send someone round to get the children.
I was taken to material from Dr J, Consultant Psychiatrist who the husband consulted in relation the Local Court proceedings (under the Crimes Act) and these are from the interviews I think around 18 June 2010. There is a suggestion that in relation to the incidents around April 2010 the husband had a lack of appreciation of his behaviour. Dr J made a report attached to the husband’s affidavit of 22^nd – a report dated 22 November 2010 – providing a current diagnosis of the husband to the effect he has Major Depressive illness but in remission and that he has an Adjustment Disorder. In her opinion there is no concern as to any risk from him to the children at this time.
The Independent Children's Lawyer noted that the report of Dial-An-Angel annexed to the husband’s December affidavit is to the effect that the sessions on 27 November and 4 December went well; that the children were unsettled at first but then settled into a nice event with the husband.
There is a report from Ms L, the school counsellor, of 9 December 2010 that the children have no pervasive fears of the husband. Ms L notes that this is her conclusion after only 4 sessions.
Part of the material relied on by the parties was a memorandum dated 3 December 2010 of Ms W, a Family Consultant. The memorandum was referred to during the course of the proceedings and no objection was taken to the fact that it is unsworn. I take it that the parties agree to the memorandum being read in the proceedings[4].
[4] Section 69ZU
Ms W saw the parties separately. She reports that the parties describe violence between then early in their relationship. She says that both describe two incidents where the wife was physically injured but they have different versions of how the injuries occurred. She says that the wife does not want to come into contact with the husband at any time. Ms W says that it would be in the children’s best interests for the parents not to come into contact with each other.

Submissions

For the husband it is submitted that there is some evidence that the wife has exaggerated her concerns and that she has sought to alienate the children from him. There is concern arising out of the fact that K prepared letters that are annexed to an affidavit in which she sets out why she doesn’t like her father. The inference the husband draws is that the wife has been coaching the children or encouraging them to be afraid of him.
It is submitted that there is evidence that the incidents that are said to have occurred in September 2010 did not occur as the wife deposes. They occurred when the husband was living with his mother and sister-in-law and their evidence repudiating the evidence reported by the wife would support the husband’s case over that of the wife. It is submitted also that in relation to September 2010 there is a benign explanation for the telephone conversation from the husband where he said he would send somebody around for the children. It is argued on behalf of the husband that the Court can take account of the report of Dial-An-Angel which suggests there has been a significant improvement in the husband’s relationship with the children. The husband’s treating Psychiatrist says there should be no fear for the children. On that basis, it is the husband’s case is that his time should be unsupervised.
It is submitted on behalf of the ICL that the Court should be cautious in an interim hearing, to make orders that protect against sources of alleged harm to the children. It is submitted that the allegations are serious. Having read the evidence and the subpoenaed material and speaking to the children, the ICL has a real concern about the children having been exposed to the parental conflict. There is a concern about a lack of insight in one or both of the parents in this regard. It is noted that the Dial An Angel reports are positive after an initial unsettled period. Dr J diagnoses the husband with a Major Depression in remission and an Adjustment Disorder. Dr J does not think that the husband poses a risk to the wife or children. The ICL has concerns about the documents presented to the ICL by K. There was a narrative with an explanation and a letter titled ‘Why I do not like my dad.’ K said that they were documents she wanted the ICL to read.
It is submitted nevertheless that these are interim proceedings that the Court cannot make findings of fact in relation to the husband’s progress or indeed in relation to the incidents and therefore caution is warranted and that is why supervision should continue.
The submission on behalf of the wife is that supervision should continue. Dr S refers to conversation with K on 10 September 2010 during which K said words to the effect “Dad mean and had been hurting her.” And “Dad just suddenly went mad” and chased her and L. She is confused – she loves dad and hates him at the same time. K said she was frightened “dad is going to be mean like before”.
It is submitted for the wife that the husband appears to minimise his responsibility for his behaviour. He said something to the effect “she knows how to push my buttons” in connection with the 2003 assault. In the report of 21 October 2010 Dr V reported the husband saying – there were a number of stress factors late 2009 and early 2010. The husband has self medicated with alcohol. It is noted that the husband has conceded that alcohol was always a big influence. Not that he drinks all the time but when he started drinking he did not want to stop. Dr V reported on 4 August 2010 the husband said that by March 2010 he was irritable and snappy. In March 2010 there were a couple of outbursts against the wife and his children. The husband said to Dr V that they argued on and off for days and then his mind ‘went’; that he yelled, grabbed the wife and pushed her on the lounge. He said that the wife said he threatened to kill her. He said that when he is angry he can be scary and can threaten. In August 2010 Dr V recommended regular ongoing counsellor support throughout this very stressful period of his life. In his subsequent report Dr V was more optimistic. Dr J was similarly optimistic. It is noted however that neither of them had the benefit of reading the wife’s evidence.
It is submitted that this material is more consistent with the wife’s evidence than that of the husband. It is submitted that the husband seeks to minimise the reported incidents in his own evidence and by what he said to the Family Consultant.

The agreed or uncontested relevant facts:

As I understand it, the following propositions are agreed:
·The parents’ arrangement during the marriage had the wife as primary care giver with the husband being involved when he could.
·There has been violence in the parents’ relationship.
·The husband assaulted the wife in 2003 and he was found to have driven with more than the prescribed content of alcohol in his system.
·The husband has suffered from mental health problems, recently Depression and an Adjustment Disorder. The husband required medication and the help of his GP, Psychiatrists and a counsellor to deal with those issues and with a problem with anger.
·In the future, the children will live unsupervised in the care of the wife. The children will spend time with the husband.
·The reports of two supervised visits in November / December were largely positive.

The relevant the matters in s 60CC:

Section 60CC is the provision by reference to which the best interests of a child are identified. As to how the court takes those matters into account:
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Dealing with the evidence before me under the relevant provisions:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is an agreed position between the parents that the children need time with the husband. I take it then that it is a priority for the parents that the children have a meaningful relationship with them. The extent to which the relationship between the husband and the children is meaningful will depend on findings that cannot be made at this time.
It follows from the evidence of the parties and of the experts that the children have been exposed to psychological harm.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
There is little useful evidence of the views of the children. They are young. There is no expert evidence as to their maturity or levels of understanding. Their reported views are ambiguous.
Ms L is the counsellor at the Primary School where K and D attend. She is an Educational and Developmental Psychiatrist. In her letter of 9 December 2010 she reports on the results of four sessions with the children. She said that both children expressed some ‘anxiousness’, and perhaps a little fear of their father but in her opinion the fear is not pervasive. With a caveat about expressing views after only four sessions with the children, Ms L opined that neither child was particularly anxious or distressed. She says that she will continue to monitor the children into the new school year.
If there is a risk of serious harm, the views of the children would have no weight in any event.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The focus of the proceedings is necessarily on the relationship of the children with the husband because all of the parties propose that the children live unsupervised, for the preponderance of time, with the wife. I take it then that the parties agree that the children have a good relationship with the wife.
The wife told the Family Consultant that the children need to see their father and that they enjoy spending time with him when he is nice to them. On the other hand she said they had been anxious prior to visits with him and two of them had vomited prior to a visit.
There are two reports from Dial an Angel who supervised the husband’s time with the children. As to the visit on 27 November 2010 between 10 am and 1 pm:
·K ran up to the husband and hugged him as did L and P. D clung to the wife.
·The children later interacted happily with the husband;
·The husband was patient and appropriate with the children.
From the notes of the visit on 4 December:
·all of the children appeared happy to see the husband;
·the husband appeared to ensure that he was spending time with each individual child, exchanging hugs and kisses. The supervisors thought he was mindful of the children’s needs and he checked if they needed to go to the toilet or to have something to eat or drink.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The focus is necessarily on the wife. She has opposed the husband’s time with the children on occasions. However, she agreed to unsupervised time on several dates between 11 July and 5 September 2010. Since then she opposed any unsupervised time.
The husband concedes that he said in the presence of the children that that the requirement for supervision of his time with them was “mummy’s stupid rule.”
It is not possible to make sensible findings about this issue.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

45.There is no evidence about these issues.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

46.There are no practical difficulties in relation to spending time or communicating.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

It is the husband’s evidence that he has suffered from Depression from time to time. He found the last two years extremely stressful. He became agitated easily and lost his temper easily. When he lost his temper he often made comments in anger that he did not mean.
Since May 2010 the husband has attended a counsellor, Ms H once a week and since August, once a fortnight. Ms H treated him for Depression and associated anger issues. Ms H referred the husband to his GP, Dr S who prescribed antidepressants and referred him to Dr V, a Consultant Psychiatrist.
Consultant Psychiatrist, Dr J saw the husband in relation to ADVO proceedings. She first saw him in June 2010 and her report of 22 November 2010 relates to a consultation on the 15^th of that month. By way of history Dr J said among other things:
“[The father] at the time I saw him, was before the courts as a consequence of an alleged breach of AVO, contravening the AVO and he was also considered using carriage service to menace, harass, and offend and also to stalk, intimidate, intend fear of physical/mental harm.”
The husband told Dr J that in June 2010 he had been on a trial of a drug Cymbalta which had been ineffective and he had just commenced on Lexapro. He was having problems tolerating 40 mg of Lexapro but needed that dosage to maintain his mental state. He told Dr J that until September 2010 he held a hope that he and the wife might reconcile but now he accepts that their relationship is over. He finds it distressing that he cannot have regular and consistent time with his children but says he has no feelings of anger hostility or rage towards his wife. He says he has no thoughts of harm towards his children and no feelings for his wife. He does not have suicidal thinking or sustained disturbance of mood. Dr J opines that the husband is an obsessional individual who has a Major Depressive Disorder in partial remission and an Adjustment Disorder with depressed and anxious mood. In her opinion the husband is not a danger to himself, the wife, his children or to any member of the community.
The husband saw Consultant Psychiatrist, Dr V in August 2010. Dr V diagnosed an Adjustment Disorder, and some personality vulnerability with less than ideal ways of identifying and managing stress and anger. In a letter dated 21 October 2010 Dr V considered that the husband had progressed somewhat with medication and counselling and was more accepting of the situation and dealing constructively with the situation with his wife. In his opinion the husband did not pose a significant risk to any person, specifically his children. Dr V did not see a need for the husband to have further consultations with him.

The husband concedes that he said in the presence of the children that that the requirement for supervision of his time with them was “mummy’s stupid rule.”
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The children are young, there are two girls and two boys. There is no significant expert evidence in relation to them.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Each of the parents reports the children saying things which suggest that the other parent makes derogatory statements about them in the presence of the children. As I understand their evidence the parents deny such conduct although as is referred to above, the husband concedes that he said in the presence of the children that that the requirement for supervision of his time with them was “mummy’s stupid rule.” That was irresponsible.
The wife asserts that the husband was able to communicate with her about financial matters when he was in South Africa in August this year but did not ring the children. If true, that suggests a lack of focus by the husband on the children.
The husband undertook the Relationships Australia course: ‘Parenting after Separation – Focus on the Kids’.
(j) any family violence involving the child or a member of the child’s family;
The wife gives extensive and detailed evidence of the husband’s violent behaviour. She says that the husband has been violent and controlling throughout their relationship. She says that in the early years she retaliated until in a violent fight in 1995 during which he head butted her and broke one of her teeth. The husband agrees that the wife broke a tooth in a fight with him but he asserts that she initiated the fight.
The wife says that physical violence coincided with the husband being under stress at work and with the excessive consumption of alcohol.
The wife alleges that the husband exhibited controlling behaviour at times. He agrees with her allegation that this Easter he demanded and took her mobile telephone, car keys and credit card. It is trite to say - that is controlling or bullying behaviour.
The wife says that on 14 July 2010 he emailed her “I will continue to pay the rent on the basis that you honour our agreement on the children’s access.” If true, that was controlling behaviour.
The wife says that on 5 September 2010 at changeover the husband said “You are too fucking useless to give them to me for Father’s Day, I’m going to get someone to come get you soon.” I understand that the husband denies making that threat. Learned counsel for the husband told me that there might have been a conversation where he asserted he would take a step through his solicitor. For my part, it is difficult to reconcile those concepts.
The parties told the Family Consultant that they were violent to each other early in their relationship. They each contend that they have not been violent towards the other parent since that time but the husband told the Family Consultant that there have been periodic arguments later in the marriage when they both would yell, shout and swear at one another.
The husband was guilty of common assault on the wife in 2003. He admitted to police that he threw the wife on the ground and kicked her. He pleaded guilty and was dealt with under section 10 of the NSW Crimes Act.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
On 14 May 2010 the police brought Apprehended Domestic Violence proceedings against the husband. An order was made. On 1 July 2010 the order was varied to permit the husband to have contact with the wife for the purposes only of access to the children and the welfare of the children.
I do not know whether the application was contested.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There is no doubt that would be preferable but this is a difficult concept in interim proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.

Does the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child apply or not?

In other words: are there reasonable grounds to believe there has been abuse of the child or family violence or, in these interim proceedings, does the Court consider it appropriate to apply the presumption?
The presumption does not apply here. There are reasonable grounds to believe that there has been family violence. For example, the husband pleaded guilty to a charge of common assault on the wife. The wife broke a tooth in a fight with the husband.
If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests:
This does not apply.
If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable:
This does not apply.
If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable:
This does not apply.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC:
This does not apply.

If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC?

I refer to the considerations of the section 60CC factors above.

In any event consider equal time or substantial and significant time

Neither of the parties seeks equal time and the issue was not addressed by submissions made during the hearing. Had it been sought, the relationship between the parties and the nature of the allegations are such as to strongly argue against such an arrangement.
Only the husband’s proposals could be said to involve the children having substantial and significant time with him. Substantial and significant time involves time whereby the child and the parent share significant aspects of their lives. It involves the school week and weekends.
The children are young. The wife’s concerns in relation to controlling and violent behaviour by the husband are consistent with some objective facts in the chronology. It is a fact that the husband was charged with common assault of the wife in 2003. It is a fact that he was charged with and convicted of driving with a prescribed content of alcohol in his system. Indeed it is the wife’s evidence that he was able to retain his licence but he went drinking the night after the court case to celebrate. The husband has conceded misusing alcohol. There are references in the expert evidence to the husband suffering depressive illness. There is evidence about triggers for stress reaction from the husband, angry outbursts from him which are consistent with the wife’s evidence in relation to the husband’s conduct over time. The husband has conceded the thrust of these allegations. The wife reports that the husband had been diagnosed by the parties’ GP Dr S, as suffering from a reactive depression and that he told a counsellor that the parties attended that he had been assessed by a Consultant Psychiatrist.
Weighing the risks for the children, there are no serious risks arising from a level of supervision of the husband’s time. On the other hand there are risks if the husband makes derogatory remarks about the wife, if he abuses alcohol, if he is controlling or angry or violent.
The orders I will make will be orders that are generally in terms of the wife’s variation of the husband’s alternate proposal but supervised. There is no evidence which would assist in relation to the minor differences between the alternate proposals of the husband and the orders sought by the wife. I apprehend they may be matters of convenience but I do not know. The wife will bear the main parenting load for the time being and I will favour her proposals. Having said that, the wife would have no provision for the husband to spend time with the children on their birthdays. I will make such a provision.
As to the orders sought by the Independent Children's Lawyer made there is an issue whereby the parties would like to appoint a Chapter 15 expert whereas Ms Alex for the children wants a Family Report. The husband has not enjoyed unqualified mental health and it would be also be useful to have a mental health assessment of the wife and the children. It seems to me that if the parties are willing to pay then they could obtain an expert’s report anyway. I will order a Chapter 15 expert and not make an order for a family report. I will make the order that the supervisor give the proposed undertaking before things start.
Through her counsel the wife agrees with family therapy but does not want to share the costs. In the latter regard the parties both have access to funds and there is no reason why they should not share the cost of family therapy.

Financial issues

The wife seeks:
That the husband pay the wife the sum of $500 per week by way of spousal maintenance.
The husband seeks that her application be dismissed.
In relation to spousal maintenance her case is that the husband doesn’t require about $375.00 per week in terms of lifestyle expenditure – for holidays and entertainment and that he doesn’t need to spend about $450 of the amount he says he commits to the children each week. The argument is that that would relieve the husband’s budget of $825.00 per week. The submission was initially that that would free the husband up to make payments of $500 per week. The arithmetic doesn’t work. In fact the husband shows an income of $5,287.00 per week with outgoings of $5,879.00 per week. Thus he reports a weekly shortfall of about $600.00. The logic of the submissions on behalf of the wife is that he would have about $225.00 per week free. It is submitted that the wife has accounted for her needs and an order should be made.
In relation to the financial matters it is submitted on behalf of the husband broadly that there may only be about $370,000.00 net assets outside superannuation and if the wife was to have the benefit of $208,000 and $55,000 and $150,000 she would have more than all of the net assets and on that basis it is not appropriate. It is submitted that she has reduced what was $265,000 to $208,000 since separation and those monies are lost and there is a concern that she will use more of those funds and that there won’t be any proper accounting for them. It is submitted that a sensible course might be to pay down debt because the debt on the M Street property is about $500,000.
In relation to maintenance it is submitted that the wife doesn’t on her figures justify the shortfall that she claims. I think it is conceded that it may be that she has a claim for $300,000 but not $500,000. It is submitted that the excesses of the husband’s Financial Statement in terms of entertainment and holidays are mirrored in her Financial Statement and from that point of view her claim can be trimmed down. It is submitted that the husband doesn’t have the funds to make the payments and a better course would be for the wife to retain $50,000 of the $208,000 she has now and apply those funds to her own support and in that way the funds can be accounted for and that otherwise the balance of the $208,000 should be applied as has already been suggested.

The Approach to interim spousal maintenance

The effect of sections 72 & 74 is that maintenance is a remedy available to parties to a marriage, whether the marriage is still on foot or not. It is available where one party establishes that he or she is unable to adequately support themselves from their own resources and that the other party can reasonably provide support. Those issues are decided on the basis of the relevant matters in section 75(2), which provides:

(a) the age and state of health of each of the husband and wife;

The parties are 35 years of age. The wife suffered a spinal injury in 1991. She received a compensation payment for that injury. She suffers discomfort, stiffness and pain when sitting or standing for long periods. She is unable to perform work requiring that she lift heavy objects or bend at the waist.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The husband receives $5,287 per week, made up of his salary from the bank of $4,600 together with $92.00 in the form of salary sacrifice for a motor vehicle, $500.00 per week in rent and $95.00 per week by way of dividends on shares in Westpac and Telstra. He lives alone.

The husband spends $5,879 per week made up as follows:

Expense		Amount
Income tax		$1,634.00
Rent		$550.00
Rates & unite levies		$165.00
Mortgage payments – St George bank		$1,000.00
Income protection Insurance – Tower Australia		$25.00
Motor vehicle insurance - NRMA		$27.00
Home and contents insurance - NRMA		$16.00
Health insurance - HCF		$53.00
Motor vehicle registration Ford Territory		$17.00
Hire purchase / lease agreement - Ford Territory – St George Bank		$225.00
Overdraft (Get Set Line of Credit) – St George Bank		$50.00
Visa card prepayments – St George Bank		$50.00
Child support		$661.00
Other expenses.		$1,406.00
Food	$220.00
House supplies	$35.00
Gas	$15.00
Electricity	$38.00
Telephone	$30.00
Petrol	$75.00
Car maintenance	$20.00
Fares and car parking	$10.00
Clothing and shoes	$90.00
Childrens activities	$35.00
Medical dental and optical	$60.00
Entertainment hobbies	$200.00
Holidays	$175.00
Education expenses	$200.00
Chemist pharmaceuticals	$20.00
Repairs to furnishings and applicances	$10.00
Dry cleaning	$10.00
Books and magazines	$20.00
Gifts	$35.00
Hairdressing, toiletries	$8.00
Retirement village for mother	$100.00
Sub-total	$1406.00
Total		$5,879.00

Of those expenses the husband says he pays $100 per week towards his mother’s retirement village fees and $80 per week in health insurance and swimming lessons for the wife and children. There is no suggestion that the husband is not exercising his earning capacity.
The husband has a shortfall of about $600 in his weekly budget.
The husband owns a unit at M Street which he estimates is worth $400,000. He has $35,000 in cash to pay tax and $18,500 worth of Westpac shares. The husband has $62,500 in a bank account, being the net proceeds of sale of a property at E Street. He has a car and other personalty. The husband has about $150,000 in superannuation. The husband owes about $700,000 in various debts.
The wife’s income, according to her Financial Statement is $625.16 per week, made up of interest at $150 and Family Assistance of $475.16. She lives with the parties’ children. They have no income. The husband pays medical benefits for the family.
The wife’s expenditure is as set out below. In her Financial Statement she totals the expenditure at $1992. I make it $2016.20.

Expense Amount

Rent $480.00

Rates unit levies $24.70

Life insurance – ING $9.00

Motor vehicle insurance – YOUI Pty Ltd $13.00

Contents insurance $6.00

Motor vehicle registration Toyota $9.00

Other expenses. $1,474.50

Food $300.00

House supplies $60.00

Gas & Electricity $54.00

Telephone $22.00

Petrol $60.00

Car maintenance $20.00

Clothing and shoes $110.00

Childrens activities $41.00

Child minding $60.00

Medical dental and optical $9.00

Entertainment and hobbies $80.00

Holidays $300.00

Education expenses $226.50

Chemist pharmaceuticals $15.00

Gardening lawnmowing $17.00

Repairs to furnishing and appliances $25.00

Dry cleaning $2.00

Books $20.00

Gifts $28.00

Hairdressing, toiletries $25.00

Sub-total $1474.50

Total $2,016.20

The wife assesses that, of her living expenses, $536.00 is applied to her expenses and $938.50 is applied to those of the children.
I am required to ignore income from income tested benefits. The wife has a shortfall of about $1800 in her weekly budget.
The wife owns land at H Street worth $300,000, she has $208,000 in joint funds, a car and other personalty. She has $17,000 in superannuation and $78,000 on a joint mortgage.
The wife is not in paid employment. Prior to the birth of the first of their children the wife worked as an Analyst. The wife has not returned to paid employment since. She says that was at the express direction of the husband, but whatever the reason, she has not had paid employment for that period.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The children are 8, 6, 3 & 2 years of age. The care of the children falls largely to the wife.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out the evidence in relation to the parties’ expenses.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;

The wife receives the Family Allowance. The parties have interests in superannuation funds.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

There is no evidence that either of the parties is planning further study or intending to set up in business.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

This is not a significant aspect of the case.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The husband built a successful career while the wife undertook parent and homemaker duties. It is likely that the wife contributed to the husband’s earning capacity.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The wife has been out of the paid workforce for many years. She has lost the advantages of permanent employment, the potential for promotion, leave entitlements and other benefits.

(l) the need to protect a party who wishes to continue that party's role as a parent;

The children are very young – two of them, not yet of school age. They still require close supervision.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

There is no evidence about this issue.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

As is often the case, on the documents, the husband pays $661 per week in child support but the wife does not receive it. That might be a function of the dates on which the Financial Statements were prepared. However, if it is true then perhaps the payments have yet to flow through to the wife.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Nothing comes to attention here.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the parties.

The exercise of discretion

As to the wife’s income, I am obliged to ignore the Family Allowance[5]. The receipt by her of child support payments and her expenditure on the children are not to be confused with her own need for maintenance[6]. Thus the wife has an income of $150 per week and liabilities of $1,077.70 (fixed expenses of $541.70 and living expenses of $536). Thus she shows a shortfall of $927.70 per week. There is nothing significant in the categories or quantum of expenditure that would seem excessive.
[5] Subsection 75(3)
[6] Stein & Stein [2000] FamCA 102; (2000) FLC 93-004
As to the husband’s capacity. There is already a weekly shortfall of income over expenses of about $600.00. The servicing of this shortfall is not explained but it seems to me that I should accept it at face value for the purposes of today. I accept the submission that the husband’s expenditure of $375.00 per week for holidays and entertainment cannot have priority over his obligation to support his wife. I accept that, leaving aside his expenditure on education ($200), the expenditure on the children of $650.00 per week is not explained. They live mostly with the wife.
The figures relied on by the parties are not exact. They are estimates. Any mischief done in the short term by these orders can be remedied later in the proceedings, if necessary. However, on the face of the documents there is a notional improvement in the husband’s budget of as much as $825.00 per week. That would enable him to address the $600 a week shortfall and to pay $225.00 towards the wife support. That is what I will order, pending further order.

Partial Property Settlement

Each of the parties wants access to the capital funds which are now available and which will come into being on the settlement of the H Street property.
The husband seeks:
Property
11.That within 14 days of the date of these Orders the wife do all acts and things to cause the funds in the following accounts to be transferred to a controlled monies accounts in the parties joint names administered by the husband's lawyers:
11.1. All funds in the ANZ term deposit account no. […];
11.2. All funds in the ANZ term deposit account no. […]; and
11.3. $50,000 from the U Bank account number […].
12.That upon the sale of the property located at [M Street] ("[M Street]") the parties do all acts and things to cause monies held in controlled monies account administered by Herbert Geer, Gayle Meredith & Associates and/or Meehans Lawyers in the names of the parties to be paid to discharge the mortgage secured over [M Street].
It is submitted on behalf of the husband broadly that there may only be about $370,000.00 net assets outside superannuation and if the wife was to have the benefit of $208,000 and $55,000 and $150,000 she would have more than all of the net assets. It is submitted that such an outcome is not appropriate. It is submitted that she has reduced what was $265,000 to $208,000 since separation and those monies are lost and there is a concern that she will use more of those funds and that there won’t be any proper accounting for them. It is submitted that a sensible course might be to pay down debt. The debt on the M Street property is about $500,000.
The wife seeks that she retain about $208,000 she now has together with about $55,000 being the proceeds of the sale of the property at E Street and the proceeds of the impending sale of the H Street property (which is estimated to be about $150,000). She wants to use those funds to re-house herself, so as to avoid rent.

The approach to partial property settlement

The power in relation to property settlement is in section 79. Orders for settlement of property can be made in parts[7]. There is no hurdle to be crossed, no special circumstances are required, in making an order for partial property settlement[8]. The relevant considerations are those contained in section 79.
[7] In the Marriage of Hickey (2003) 30 Fam LR 355
[8] In the Marriage of Steicke [2009] FamCAFC 166; 241 FLR 1
Here the parties are engaged in a period of disinvestment. There is a modest pool of net assets and they have taken up the expense of litigation. Nevertheless, it would be sensible to have some regard to their indebtedness. It is also important that the wife not be left entirely dependent on weekly payments from the husband. In that would be the scope for further allegations of controlling behaviour. Care is needed also not to allow transactions that will be difficult to undo on the final settlement of property.
I will order that the wife retain the funds she has. She is and remains accountable for her application of those funds. The proceeds of sale of the E Street and H Street properties will be applied to the mortgage secured on the M Street property.

I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 December 2010.

Associate:

Date: 22 December 2010

[2010] FamCA 1186

22 December 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Duty of Care

Natural Justice

Procedural Fairness

Remedies