MILLMAN & MILLMAN
[2020] FCCA 1811
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLMAN & MILLMAN | [2020] FCCA 1811 |
| Catchwords: FAMILY LAW – Interim hearing – application in respect of children’s arrangements – spousal maintenance – litigation funding – high conflict – nature of interim hearing – nature of interim hearing and urgent spousal maintenance order – lack of disclosure – what is appropriate forum for case – family violence – coercive and controlling behaviour – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 72, 74, 75, 77, 80, 117 Federal Circuit Court Rules 2001 (Cth), rr.24.02, 24.03 |
| Cases cited: Ashton & Ashton (1982) FLC 91-285 Bevan & Bevan (1995) FLC 92-600 Black & Kellner (1992) FLC 92-287 Briese & Briese (1986) FLC 91-713 Chapman & Chapman (1979) FLC 90-671 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 93-286 Hall & Hall [2016] HCA 23 Hogan & Hogan (1986) FLC 91-704 Luciano & Luciano [2000] FamCA 401 Mazorski v Albright (2007) 37 FamLR 518 MRR v GR (2010) 240 CLR 461 Zahawi & Rayne [2016] FamCAFC 90 Zschokke & Zschokke (1996) FLC 92-693 |
| Applicant: | MS MILLMAN |
| Respondent: | MR MILLMAN |
| File Number: | ADC 30 of 2020 |
| Judgment of: | Judge Brown |
| Hearing date: | 26 June 2020 |
| Date of Last Submission: | 26 June 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Jaqui Ion Lawyers Pty Ltd |
| Counsel for the Respondent: | Ms Nelson QC |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
That the matter be transferred to the Family Court of Australia to be listed on a date and time to be advised to the parties subject to order two hereof.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Family Court on 12 August 2020 at 9.15am to discuss issues of interim spousal maintenance and litigation funding and any other matters incidental to these proceedings.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
That the Respondent file and serve a statement of financial circumstances and any further affidavit in respect of interim spousal maintenance and litigation funding within fourteen (14) days of the date of these orders.
That the Applicant file any affidavit in reply within twenty-one (21) days of the date of these orders.
No later than 4 August 2020 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules, which includes the following documents:
(a)copies of each party’s 3 most recent taxation returns;
(b)copies of each party’s 3 most recent taxation assessments;
(c)if the party is a member of a superannuation plan:
(i)if not already filed or exchanged--the completed superannuation information form for any superannuation interest of the party; and
(ii)for a self-managed superannuation fund--the trust deed and copies of the 3 most recent financial statements for the fund;
(d)if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e)if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
That the parties exchange documents outlining the legal costs they have each already expended and estimates of the costs likely to be incurred by each of them in the current matter on or before 4 August 2020.
Following the conciliation conference in order (2) hereof the Registrar convening the conference is directed to allocate a hearing of any outstanding interim financial issues before the Family Court with such degree of urgency as she deems fit.
Until further or other order
That the Respondent continue to make the necessary recurrent payments, as they fall due, in respect of the vehicle driven by the wife, that being the Motor Vehicle 1, and ensure that all other liabilities, such as registration and insurance in respect of the vehicle, are maintained.
That the parties jointly commission a family assessment report, at their joint expense, to be completed by a suitably qualified expert to be agreed between them, but direct that the report be completed, if at all practicable, by 30 September 2020.
The children X born in 2010 and Y born in 2013 live with the Applicant mother.
That the current time spending arrangements pursuant to the orders of 12 February 2020 continue, save and except for the following variations:
(a)The children spend time with the Respondent father during school holidays as follows:
(i)During the current school holidays from 9.00am on 15 July 2020 until 6.00pm on 19 July 2020;
(ii)During the September/October school holidays, unless the parties agree otherwise, from 9.00am on 30 September 2020 until 6.00pm on 4 October 2020.
(b)The alternate weekend school term regime will recommence on 1 August 2020 together with the provisions for the Tuesday and Thursday after school catch ups and the Thursday morning school drop offs as provided for in the orders of 12 February 2020, which will continue during school terms.
Handovers that do not occur at school occur at the Applicant’s home, situated at B Street, Suburb C.
MS MILLMAN born in 1983 and MR MILLMAN born in 1974, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children X born in 2010 and Y born in 2013 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.
The parties be restrained and an injunction is hereby granted restraining them from:
(a)Abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so; and
(b)Discussing these proceedings with the children or allowing any other person to do so.
The parties use a communication book or parenting app to inform one another of all issues relevant to the children including but not limited to issues such as the children’s physical needs, medical appointments and information, dietary needs and extracurricular activities, school events and achievements.
The parties shall keep each other advised of their address, landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.
Should a medical emergency arise in relation to the said children whilst the said children are in the care of either of the parties then the party concerned shall notify the other party as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner and hospital attended by the children and the location of the children.
Each party has the right to attend at the child’s school for all events that are routinely attended by parents and to receive all notifications, reports, school photographs and similar documents disseminated by each such school.
Each party is to have telephone or electronic communication with the children when they are not in that party’s care each day at times to be agreed between the parties but, failing agreement, at 6.00pm each evening.
IT IS NOTED that publication of this judgment under the pseudonym is Millman & Millman approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 30 of 2020
| MS MILLMAN |
Applicant
And
| MR MILLMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The current proceedings are concerned with interim arrangements in respect of both financial matters, pending trial and parenting arrangements for two children.
The parties concerned in the case are Ms Millman “the wife” born in 1983 and Mr Millman “the husband” born in 1974. The children concerned are X born in 2010 and Y born in 2013.
The parties are each professional people. The wife is a health care worker. The husband is a health care worker, who apparently has business interests in a business, in the Region D of Adelaide.
Until May of 2019, the wife was employed by the Employer E, where the husband also worked, receiving a salary and drawings from the business itself.
It is her case that she continued to receive an income, after May of 2019, although she no longer worked at the business. She attributes May of 2019 as being the point at which the parties’ marriage began to disintegrate.
Against this background, it is common ground that the parties separated in difficult and emotional circumstances, in mid-November of 2019, at which stage the family were living in the jointly owned former family home located in Suburb F. It is the wife’s position that her income payments were stopped, at this stage, by the husband, leaving her with an income of nil.
In December of 2019, the wife, X and Y moved out of the Suburb F property into a house, also jointly owned by the parties, at Suburb C. It is the wife’s position that she has been the children’s primary provider of care, throughout the parties’ marriage, because the husband worked long hours, sometimes up to seven days a week, in his various businesses and she had worked family friendly hours.
The husband asserts that he has a close bond with each of the children and has always been integrally involved in providing for their care. It is his case that he is no longer working in the business concerned and therefore, from his perspective, there is no impediment to him being as fully involved in providing care, for the children, as the wife. In this context, ultimately, he seeks an equal time regime in respect of the parenting of X and Y.
Throughout the latter part of 2019, the parties have been attending upon a family therapist, Ms G to assist them in respect of making appropriate parenting decisions concerning the care of X and Y. It is the wife’s position that Ms G advised her to leave the Suburb F property when she did, which she did with the assistance of her family. Upon arrival at the Suburb C property, she arranged for the locks to be changed.
For obvious reasons, the circumstances surrounding the wife and children leaving the Suburb F property remain highly controversial but are clearly traumatic for each of the parties. Essentially, each asserts that the other behaved extremely poorly and violently towards the other throughout this period.
The father concedes that he did not want the marriage to end. It was clearly a very difficult period, which became more difficult and emotionally labile as a consequence of what happened next, which led the wife to institute the current proceedings in early January of 2020.
The parties agreed that they attended upon Ms G on 4 December 2019, on which occasion they negotiated an agreement for the father to spend time, with the children, as follows:
·Overnight on every Tuesday;
·Each weekend from 10:00am Saturday until 6:30pm the following Sunday;
·This weekend arrangement was varied every second weekend so that the children would return to the wife’s care on Sunday, for a period of three to four hours, in order to allow them to attend church with her;
·Each Friday from 6:00pm – 8:30pm for a family dinner with their father.
From the wife’s perspective, this was an urgent ad hoc arrangement, which was to be reviewed with Ms G in January, prior to the children returning to their respective schools – X to H School and Y to J School.
X and Y went into their father’s care, pursuant to this agreement, on Saturday, 28 December 2019 and were due to return to their mother the following day. They were not returned as agreed. The father concedes that he took both children to Victoria, ostensibly for a holiday, for which he did not have the wife’s prior agreement.
From the mother’s perspective, this was a terrifying period of her life, as she did not know where the children were and she could not contact the husband. She alleges that when the husband did contact her, he said words to the effect of “you will not find me”.
It is further the wife’s case, that given the absence of any formal orders in respect of the case, the police were unwilling to be involved in the matter. She continued to fear for the safety of the children, as she believed the husband was acting in an extremely unpredictable and unstable manner.
In a later telephone call, which occurred on 29 December 2019, the wife alleges that the father said to her that he was behaving in this manner “because you took the children away from me I am now taking them away from you.” Essentially, it is her case that the husband was behaving in a controlling and vindictive manner and doing little, if anything, to shield the children from his negative view of the wife.
It is also the wife’s case that the husband has a prior history of mental illness, which has included the abuse of anti-psychotic medications and pethidine, an analgesic. She portrays the husband as an emotionally unstable person.
For his part, the husband acknowledges a prior episode of depression, in 2010 and asserts that he was the subject of a report to the governing body in respect of self-medication, which resulted in him being required to undergo a series of random urine tests, which ultimately resulted in the governing body taking no action against him.
In all these circumstances, the husband is aggrieved that Ms G, in tandem with Ms Millman, took it upon themselves to make some form of notification to a governing authority about his conduct when, in his own words, he “had merely wanted to take the family away for a holiday” which the wife had unreasonably opposed.[1]
[1] See husband’s affidavit filed 17 January 2020 at [63]
During the period the children were away from her care in Adelaide, the wife engaged Ms G to see if there could be some form of negotiated outcome. In early January, the parties held a telephone conference with one another, conducted under the aegis of Ms G.
On this occasion, the parties ostensibly negotiated a written agreement, in the following terms:
·The wife vacate the Suburb C property and provide a set of keys to the husband;
·Furniture and effects in the Suburb C property removed from the Suburb F property, be returned to the Suburb F property;
·X and Y live at the Suburb F property with the husband;
·The wife attend the Suburb F property, each day at 8:00am to provide care for the children, whilst the husband worked, vacating the property at 8:30pm each evening and thereafter live with her parents;
·The wife take photos of the empty Suburb C property to establish her vacation of it, and the return of the property sought by the husband;
·The agreement be in place for period of six months.
In respect of why she agreed to this agreement, the wife has deposed as follows:
“I only agreed to what the father asked of me so that the children would return immediately to Adelaide and I would know where they would be. It was clear to me that without doing so the father would not let me see the children again.”[2]
It is also the wife’s position that Ms G informed the husband that he should return the children to the wife’s care as soon as was practicable. It is further Ms Millman’s evidence that the husband continued to be manipulative in respect of her engaging with the children.
[2] See wife’s affidavit filed 6 January 2020 at [57]
Although the husband, in his responding affidavit material, has methodically responded to each of the paragraphs in the wife’s initiating affidavit, he has not formally responded to these allegations. He has however conceded that taking the children to Melbourne, for a holiday, was “not a good idea as it has caused undue distress for the mother and the children and [is] a breach of the mother’s trust.”[3]
[3] See husband’s affidavit filed 17 January 2020 at [3]
The wife instituted the current proceedings on 6 January 2020. At that stage, it was her position that notwithstanding the husband’s indication that the children would be returned to the Suburb F property and the wife could access them there daily, he had not in fact honoured his commitment in this regard. She continued to assert that the husband was restricting her engagement with the children and attempting to manipulate the situation to his own perceived advantage. In these circumstances, she sought the urgent listing of her application and that a recovery order issue in respect of both X and Y.
Given the circumstances outlined in Ms Millman’s supporting affidavit, the court assessed her application as requiring an urgent listing. Her application was listed on 10 January 2020, some four days after its filing. Mr Millman did not have sufficient time to formerly respond to the application.
However, through his lawyer, it was agreed that X and Y would return to their mother’s care and would spend time with their father as the parties agreed. Perhaps, as matters have subsequently transpired, with undue optimism, the parties agreed to take part in a process of mediation, until the case could return to court, on 22 January 2020.
On 22 January 2020, the parties agreed on some further short time arrangements for the care of the children. It was agreed that they would continue to live with the wife and spend regular periods of day time only, in the care of the husband.
It was also agreed that Mr Millman would be able to drop X off at her school on the first Thursday of each fortnight and Y off at his school on the second such Thursday, in order to allow him to have a sense of involvement in the children’s school lives.
The case returned to court again, on 12 February 2020, at this stage the following interim orders were made:
·The children live with their mother;
·The children spend alternate weekends from 10:00am Saturday until 5:00pm the following Sunday, with their father;
·The children spend from the conclusion of school to 6:30pm each Tuesday with their father;
·The Thursday morning school drop off arrangement continue;
·During the forthcoming April school holidays, the children spend an overnight on each Tuesday, with their father as well as the existing alternate weekend.
At this stage, the parties were also referred to a child dispute resolution conference, which was scheduled to take place on 26 May 2020. The case was then adjourned until June.
The current positions of the parties
It is the husband’s position that the current ad hoc arrangement for him to spend time with X and Y is inadequate and insufficient to allow him to maintain a meaningful level of relationship with them. His focus is on parenting arrangements and he alleges that the wife has some ulterior motive, most likely related to financial issues, for her failure to support his relationship with the children.
In this context, he deposes as follows:
“The wife has now engineered an arrangement wherein she has the children with her for the majority of the time. She orchestrated this, based upon an assurance that she would extend my time by agreement. I trusted her to honour that promise without involving lawyers. Now that the wife has the benefit of extensive parenting orders, in line with her fixed position, she refuses to enter into any discussions or confidential mediation to advance the matter. Hence the power imbalance is with her and not me.”[4]
[4] See husband’s affidavit filed 24 June 2020 at [30]
On the other hand, it is the wife’s position that the husband continues to subject her to a significant level of coercion and control, which he did during the marriage and immediately following separation. The most graphic example of this control being his unilateral removal of the children from her care, in the dramatic circumstances of December 2019, which she would characterise as the husband using the children to manipulate, punish and control her.
It is further Ms Millman’s case that the husband has now turned to using financial means to exert this control over her. In her submission, this can be the only explanation for his withholding moneys from her, leaving her with no recurrent income whatsoever from November 2019 onwards, which coincides with her decision to separate from him.
In addition, Ms Millman provides other examples, which she asserts can only be categorised as an attempt to exert coercion and control over her, through financial means, by the husband. These can be summarised as follows:
·The husband has failed to pay the lease payments on her motor vehicle leading to her receiving a letter of demand;
·The husband has instructed solicitors to write a letter of demand to her requiring repayment of moneys advanced to her through the husband’s business on the basis that she did not perform any services for the moneys received by her.
Accordingly, the wife’s focus in the case, at this interim stage, is primarily on financial issues. It is her position that the children remain emotionally vulnerable as a consequence of what evolved recently, in December/January and as a consequence, the current orders remain appropriate, with a modest level of increase to accommodate the current school holiday period.
In this context, she alleges that the children have disclosed to her that, whilst they were in their father’s care, the father made statements to them that their mother was effectively dead to them.[5] She portrays the husband as an emotionally abusive parent, who has attempted to influence the children against her.
[5] See wife’s affidavit filed 20 January 2020 at [14]
As this summary shows, in a short time, the proceedings have become extremely adversarial. I would go as far as to say, toxic. This atmosphere has regrettably spread to the parties’ respective legal advisors. As a consequence, the wife has also launched an application for dollar for dollar litigation funding.
The wife’s solicitor has strong associations with the school X attends. The husband alleges he is subjected to unfounded gossip and innuendo, at the school, regarding his separation from the wife. He suspects this emanates either from the wife or those associated with her. As a consequence, he has instructed his solicitor to write to other parents, who have children in the same class as X at the school, requesting details of the wife’s solicitor and Ms Millman herself.
The wife became aware of this correspondence when a parent affected by it provided her with details of the correspondence. She also believes that the husband has retained a private investigator to gather information about her from parents. Her solicitor regards the behaviour as unprofessional. It has led to a flurry of correspondence between the parties.
Since mid-February of 2020, Mr Millman has been attending a psychiatrist, Dr K. Dr K has diagnosed the husband as suffering from an adjustment disorder with depressed mood. The husband has been prescribed anti-depressant medication and his psychiatrist has certified him as being unfit for work due to his depression.
In a report dated 10 June 2020, Dr K has provided the following history from the husband:
“His major stresses remained unchanged namely his concerns about him not being able to see his children on a regular basis. He was also concerned that his children were being emotionally affected by the separation and that they were being told negative things about him by his ex-wife, giving the example they said that he did something naughty by taking them interstate in December. He was also worried that negative things were being said about him at the children’s school giving evidence that he was being treated differently by teachers and parents and he was also concerned his ex-wife’s lawyer was also a parent at the same school that his children attended. Time was spent with him on supportive psychotherapy. His clinical presentation when last seen remained unchanged with him having ongoing periods of depression secondary to his high stress levels. He remained incapacitated from working. He only saw his children every alternate weekend. He spoke of being upset at hearing rumours at his children’s school that he was violent and that a restraining order had been placed against him, which clearly were not true.”[6]
[6] See report of Dr K dated 10 June 2020 being exhibit D to the affidavit of Angela Ferdinandy filed 15 June 2020
The parties have different backgrounds, although they met at University, in the early years of the current century, whilst both were studying in their respective disciplines. The husband was born in Country L and is by upbringing a Religion omitted. The wife and her family originate in South Australia and are committed Christians, who regularly attend church.
In this context, sensitive issues have arisen. The husband seeks an injunction preventing the children from being baptised. He also seeks an injunction restraining the wife from bringing the children into contact with a person, whom he asserts is a member of her congregation and is a convicted paedophile.
For her part, the wife is concerned that the husband may be motivated to remove the children from Australia and to take them to Country L, from which it will be practically impossible to extricate them from. In support of her concerns, she points to the fact that the children have recently disclosed to her that the father arranged for their photographs to be taken recently at a Post Office.
The husband does not dispute that the children’s photographs were taken in this semi-official setting. To the family consultant, who conducted the recent child dispute conference, he said that he had done so “just to have a photograph. Just in case. Just in case I need to do something.”
The husband refutes any suggestion that he would attempt to remove the children from this country. In support of his contention, he points to the fact that he is an Australian citizen, by naturalisation and each of the children is an Australia citizen, by way of birth. As such, neither he nor X and Y would be entitled to entry and residence in Country L.
My impression of the case thus far is of increasingly acerbic litigation, which is spiralling out of control. In this context, each party has recently filed amended applications, which detail multiple interim orders sought – in the wife’s case some 17, in the husband’s case, 37. However, as previously indicated, there is a disconnect between the areas of emphasis in each party’s case.
Given the polarisation of the parties’ positions and the disconnect between their respective applications, it should be abundantly clear to all concerned that there can be no conceivable outcome available to the court, at this stage, which will be remotely acceptable to both of the parties concerned.
Necessarily, whatever is the outcome, one party will feel hard done by and unheard by the court. I regret that I am unable to fashion a mutually acceptable outcome. In addition, the case is marked by potential pitfalls, in the form of risky stereotypical assumptions arising regarding gender roles and other aspects of the case, which I must studiously attempt to avoid.
Rather, in my efforts to resolve the case, at this interim stage, I must remain focussed on the legal principles applicable. Above all, I must hold as my lodestone the best interests of X and Y, who are not, in any way, responsible for the current predicament.
As the Full Court of the Family Court recently remarked, the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests. Rather,
“… what is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.”[7]
[7] See Zahawi & Rayne [2016] FamCAFC 90
Such an advantageous outcome is not likely to be available for X and Y for the foreseeable future as their parents apparently dig in for a long struggle. It will be impossible for me to resolve all of the controversies arising in the case in the course of these reasons for judgment. In addition, questions arise as to whether this is an appropriate court for the type of litigation likely to follow.
In addition, issues arise as to the appropriate mechanisms to be applied for the case to be resolved through a process of conciliation and mutual problem solving. It would appear to be a case crying out for an urgent family assessment to be conducted by some suitably qualified expert and for there to be either a property mediation or court based conciliation conference, once the parties have disclosed all relevant financial documents and all assets have been appropriately valued. Such steps are necessary to ensure that any process of mediation occur in an informed way on a level playing field.
The orders sought
The wife amended her original application, filed in circumstances of extreme urgency from her perspective, on 4 June 2020. On an interim basis, she seeks orders which can be summarised as follows:
·She have sole parental responsibility for X and Y;
·The children live with her;
·The children spend time with their father on alternate weekends from 10:00am Saturday to 5:00pm Sunday and each intervening Tuesday from after school (or 3:00pm if a non-school day) until 6:30pm;
·The father be injuncted from removing the children from the State of South Australia;
·The children’s names be placed on the Airport Watch list to prevent their removal from the Commonwealth of Australia;
·She retain the children’s passports;
·The father be restrained from approaching within fifty metres of her residence other than for handover of the children;
·The husband be restrained from communicating with any parents of children at the children’s school about her activities, including with her solicitor;
·The husband pay the wife the sum of $922.00 per week by way of urgent spousal maintenance;
·The husband pay the lease payments of $1,270.43 per month in respect of the registration and insurance payments in respect of the motor vehicle driven by the wife;
·The husband pay $50,000.00 by way of litigation funding;
·In the alternative there be a dollar for dollar order by means of which the husband pay to the wife the equivalent sum to that incurred by her in respect of legal costs;
·A conciliation conference be appointed;
·The parties exchange informal discovery and value all relevant assets prior to such a conference.
In support of her amended application, the wife filed a statement of her financial affairs.[8] In this statement, as previously indicated, the wife disclosed an income of nil and recurrent liabilities in an amount of $922.00 per week, of which the largest component was food ($200.00); clothing and shoes ($80.00); hairdressing, toiletries ($80.00); children’s activities ($60.00); entertainment/hobbies ($60.00); and education expenses ($50.00).
[8] See Federal Circuit Court Rules 2001 Rule 24.02
The husband responded to this application on 15 June 2020. He has not, as yet, filed a statement of his financial circumstances. In this context, the wife asserts that her solicitor has sought details of the husband’s financial position, particularly what is his economic relationship with the various businesses, in which he apparently has an interest, but no details have been forthcoming. In these circumstances, it is the wife’s position that the husband has failed in his obligation to provide a full and frank disclosure of his financial circumstances to her.[9]
[9] Ibid at Rule 24.03
The relevant interim orders sought by the husband can be summarised as follows:
·The parties have equal shared parental responsibility for X and Y;
·As from 2 October 2020 the children live with each of their parents on a week about basis;
·Prior to 2 October 2020, the children live with their father as follows:
oFor half of each school holiday period;
oDuring school terms, overnight on each Tuesday, from 3:00pm to 7:00pm the following Wednesday;
oOn alternate weekends from after school on Friday until commencement of school the following Monday;
oOn each Thursday, during school terms, from 3:00pm until 7:00pm;
oOn alternate Thursday mornings to enable him to deliver X and Y to their respective schools on Thursday morning.
·Each party be at liberty to take the children away for a two week holiday, including outside of the Commonwealth of Australia, provided written notice is provided;
·Specific orders be made in respect of special occasions such as Christmas, the children’s birthdays, and Easter;
·Each party be at liberty to attend school activities routinely attended by parents and receive usual scholastic material, in respect of the children, from their schools;
·The parties communicate and consult in respect of significant decisions pertaining to the children’s health, education, welfare and development;
·The use of a communication book be mandated between the parties;
·Handovers, other than at school, occur at the home of the relinquishing parent;
·The wife deliver the children’s passports to the Registrar of the Court;
·A mutual injunction issue restraining each of the parties denigrating or criticising the other;
·The mother be restrained from discussing the proceedings with the children, including the circumstances of the husband taking the children to Melbourne recently;
·The wife be restrained from allowing the children to be baptised without the husband’s written consent or coming into contact with a nominated member of her congregation;
·Each party provide information regarding the children’s health and education details, including in the case of medical emergency;
·The parties keep each other informed as to their contact details;
·The children communicate freely by electronic means with each of their parents and that such communications occur in private;
·A family assessment report be prepared at the parties’ joint and equal expense;
·The parties engage in co-parenting counselling with Ms G or some other person to be agreed between them;
·The parties be directed to exchange formal written advices, to be provided to each of them by their respective solicitors, in respect of legal costs incurred to date and the likely future costs of completing the proceedings;
·The wife disclose all documents relating to her contact with the children’s schools and with a person believed by him to be extraneous to these proceedings but whom the wife’s solicitor asserts has been employed, by her, in her legal practice;
·The wife provide all applications for employment made by her since 1 May 2019, along with a copy of any diary or journal kept by her since 1 May 2019;
·The parties each withdraw the sum of $20,000.00 from their respective superannuation funds by way of interim settlement of property issues;
·In the alternative, the wife pay the husband the sum of $12,000.00 to be applied towards his legal costs;
·The wife undertake a psychiatric/psychological examination by a psychiatrist or psychologist to be agreed between the parties, at her expense;
·The wife pay the costs of these proceedings.
The husband has not specifically responded to the wife’s application for urgent spousal maintenance or for payment of the recurrent lease payments in respect of the motor vehicle, which she currently drives. However he has alluded to some of these issues in his response and supporting affidavit, as it is clearly his position that the wife has capacity and resources to support herself, whereas he himself is presently incapacitated, due to illness.
In this context, he has provided his opinion that the wife currently enjoys good health and has provided a written offer of employment, for her, from one of the businesses with which he is related under the hand of the office manager. This indicates that a position is available, for Ms Millman, as a health care worker, working Monday to Friday from 9:00am to 5:00pm.
In respect of the demand for repayment of the sum of $47,880.00 – ostensibly made by solicitors retained by the Employer E, where the husband was previously employed – the husband asserts that the sum in question was not a distribution of profits from the business but were loans, which are presumably immediately payable on demand.
In respect of the wife’s motor vehicle, the wife has deposed that her solicitor received a letter from the husband’s solicitor, advising her that she was required to make a payment of $45,958.56 to a financier or take over the recurrent lease payments of $1,270.43 per month in addition to satisfying an excess insurance payment to an insurer in respect of a damages claim lodged by the husband, in respect of damage said to have been done by her to the former family home.
From the wife’s perspective, the husband’s actions in regards to these matters, when he must be aware she has no recurrent income and has the primary care of the parties’ two children, can only be characterised as being, at the very least, passive aggressive. She needs a car to drive the children to school and extramural activities; she needs some money to pay for food and other needs.
It is her understanding that the vehicle in question is owned by one of the companies controlled by the husband.[10] During the course of the hearing, senior counsel for the husband indicated that the lease payments in respect of the vehicle in question had been paid and there was no issue in respect of it being repossessed, at this stage.
[10] See wife’s affidavit filed 4 June 2020 at [60]
The husband has also provided a statement for a bank account, in the wife’s name, which indicates that she has funds available to her, as at 30 April 2020, in an amount of $37,347.00.[11] The wife refutes this assertion, indicating that the bulk of the funds are referrable to school fees and sums held on trust for the children.
[11] See husband’s affidavit filed 24 June 2020 at [9]
Ms Millman concedes that she had a sum of around $42,000.00 in her account at separation, but asserts that she has utilised this amount on her living expenses in the period since. It is her position that she has disclosed all her financial details but the husband has not reciprocated.
In these circumstances, although she is not in a position to directly challenge Dr K’s diagnosis, she is concerned that the husband has not provided information regarding his financial relationship with the various businesses in which he has an interest; has not disclosed any other bank accounts or financial resources held by him; and is otherwise attempting to intimidate through financial means.
In this context, Ms Millman has deposed that she does not understand the husband’s business interests or the corporate structure which he controls other than that in the past it has provided the family with a comfortable standard of living. She is somewhat mistrustful that the husband has ceased all work, given his previous work ethic.
As such, she fears that his current stance is a further mechanism to punish her in some way. For his part, the husband contends that it would be grossly irresponsible for him to work when he is incapacitated in a significant way. This is but one of the many controversies arising between the parties.
The wife concedes that she has a capacity to earn some income, due to her health care qualifications and experience. However, she wishes to remain the children’s primary carer, which was her responsibility prior to separation and anticipates that she will only be able to work on a part-time basis, which was also what occurred when she worked at the Employer E. She has also deposed that due to the current pandemic crisis, she anticipates it may be difficult for her to obtain suitable employment.
Ms Millman also refutes any suggestion that there is anything untoward in respect of her solicitor’s relationship with either her or other parents and staff at X’s school. Rather, it is her case that the husband has raised these issues as a further means of exerting covert mechanisms of control on her, which is also exemplified by his approaches to other parents at X’s school and his retention of a private investigator.
It seems to me to be more likely than not that the husband’s financial affairs are complex, as are issues to do with the respective capacity of each party to provide financial support for themselves, whilst also ensuring that the children’s needs are met. It is also apparent to me that the parties are jockeying for advantage over the other.
However, at the present stage, it also seems to me to be the case that the court is retarded in carrying out what is its essential task, so far as interim financial issues are concerned, which is to make some form of comparison of each party’s income and financial resources. This is because, notwithstanding the fact that Mr Millman is aware of the wife’s various applications, he has not as yet submitted a comprehensive statement of his income, recurrent expenditure, assets and liabilities.
The parties to proceedings, under the Family Law Act, involving property issues are subject to a duty to make full and frank disclosure. This process is mandated by Rule 24.03 of the Federal Circuit Court Rules 2001. It is facilitated by the requirement to file a statement of financial circumstances and the production of a stipulated number of financial records, such as tax returns and superannuation records.
In maintenance cases, it also entails the production of bank records for the past twelve months; payslips; business activity statements; and documents which may assist the court in determining the income, needs and financial resources of the individual concerned.
However, the duty to provide full and frank disclosure does not arise solely under the court’s rules but is also a fundamental principle of common law. This duty has been described as being “fundamental to the whole operation of the Family Law Act in financial cases…”[12]
[12] Per Smither J in Briese & Briese (1986) FLC 91-713 at 75,181 cited with approval by the Full Court in Black & Kellner (1992) FLC 92-287 at 79,133
For obvious reasons, for parties to be able to engage in fair negotiations in order to resolve property issues arising between them and, in the event such negotiations fail, for the court to make a fair adjudication, it is necessary for all concerned to have a comprehensive picture of the financial affairs of the parties involved.
Accordingly, the duty to make a full and frank disclosure, in financial matters brought under the Family Law Act, does not arise merely by virtue of the rules of practice of the court but rather is a fundamental rule of law, which arises because of the necessity for the court, in each property proceeding arising before it, to consider all aspects of the financial circumstances of the parties concerned.[13]
[13] Luciano & Luciano [2000] FamCA 401 at [373]
The child dispute conference
Pursuant to section 11F the court may direct the parties to proceedings before it to attend an appointment with a family consultant. Such an order was made in the current matter and, as a consequence, the parties attended before family consultant Dr M on 26 May 2020. Family consultant Dr M provide a memorandum on what occurred in the conference, from her perspective, on 28 May 2020.
Mr Millman is critical of Dr M alleging that she spent inadequate time with him and did not allow him to answer her questions as fully as he would have wished. I appreciate that whatever evidence Dr M can provide has not been subject to any scrutiny through cross-examination and her overall methodology has not been tested.
Dr M was unable to assist the parties to reach any agreement. Her preliminary assessment was that there may be gender/cultural issues of power and control underlying the dispute between the parties and, as such, a family assessment was likely to be needed.
Under the heading issues for the children, Dr M reported as follows:
“The children are likely to have some residual feelings of uncertainty after suddenly being removed from their mother’s care. The mother’s description of the children’s uncertainty and need to understand exactly where they will be and the duration of such time, is considered a response consistent with experiencing an event which was confusing and out of control of the individual. A cautious approach to time spending is needed. The children need time to adjust to the current orders.”[14]
In this context, she reported that the current interim orders appeared to be appropriate.
Legal principles applicable
[14] See Child Dispute Conference Memorandum to Court dated 28 May 2020 at [15]
The nature of an interim hearing
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Accordingly, the evidence available before the court at the interim stage is limited. As a consequence, any orders made by the court, at this stage, are provisional in nature, pending a further and more detailed inquiry or series of inquiries. The parties, in the present matter, need to bear in mind that I am not currently deciding arrangements for the care of X and Y on a final basis.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any, and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[15]
[15] See Goode & Goode (2006) FLC 93-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
In this case, there are few agreed facts but what can be gleaned from the case is as follows:
·The husband was the family’s main financial provider – he is not to be criticised for this;
·The wife was more engaged with the provision of day to day care for the children;
·The husband was a busy professional person;
·The husband acted unilaterally in taking the children to Melbourne over December/January 2019/20;
·The children have been in the primary care of the wife since early January of 2020;
·The parties currently mistrust each other and cannot communicate effectively in respect of care arrangements for the children.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“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.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[16] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[16] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(d);(f);(g);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the children’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
·The cultural background of the child concerned;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The husband approaches the case from the first primary consideration and asserts that the current time parameters through which he interacts with X and Y are insufficient for the children to derive the necessary benefits from having a meaningful level of relationship with him.
On the other hand, the wife approaches the case from the second of the primary considerations and asserts that the children’s psychological well-being is subject to threat by the risk of them being exposed to some form of abuse or family violence emanating from their father.
In this context, it will be necessary to analyse what the relevant legislation regards as constituting both family violence and abuse. This is likely to be highly controversial so far as the parties are concerned in the current matter.
Parental responsibility
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In the current matter, it is the wife’s position that the presumption is rebutted either on the basis that the court has reasonable grounds to believe that the children have been exposed to family violence emanating from the husband, or it would not be in their best interests for it to be applied or it is not reasonably practicable for the parties to be conferred with such a level of responsibility because of their current circumstances.
In these circumstances, she seeks the conferral, on her alone, of sole parental responsibility. On the other hand, the husband seeks an order for equal shared parental responsibility on the basis of the application of the presumption or alternatively, through its consideration of the various section 60CC factors applicable, that the court reach the conclusion that an equal time regime or a substantial and significant time regime be applied.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and children not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[17]
[17] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[18]
[18] Goode & Goode (2006) FLC 93-286 at 80,901
How the court applies these principles in the context of an interim hearing
The legislative pathway, to be followed by the court, was delineated by the Full Court in Goode & Goode[19] and can be summarised as follows:
[19] See ibid
·Bearing in mind the truncated nature of an interim hearing, which necessarily precludes the ready finding of facts, the court should consider any relevant section 60CC matter it deems relevant and make what findings it can;
·Thereafter, decide whether the presumption in section 61DA should be applied or, if it is rebutted because;
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the child’s best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Family violence
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Accordingly, if it is established that a child has suffered serious psychological harm, as a consequence of being either directly subjected to it or exposed to it, such behaviour can constitute child abuse. Axiomatically, the legislature places significant emphasis on protecting children from both abuse and the consequence of family violence.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In assessing cases involving allegations of family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[20] In addition, the court is not in a position to defer its obligation to assess the implications of family violence, for any child, because of the limited nature of the evidence available to it.
[20] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, to more systematic and deliberate behaviour arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
The wife’s case is that she has been subject to incidents of coercion and control, originating from the husband, which have had the effect of frightening her and which were intended by the husband to do so. These include:
·Taking the children unilaterally and clandestinely to Victoria;
·Withholding financial support from her;
·Subjecting her to a high degree of surveillance, which is equivalent to stalking;
·Denigrating her and characterising her as suffering from a mental illness;
·Generally attempting to control her behaviour, most significantly by his attempt to get her to give up the primary residence of the children to him via the agency of the parenting counselling provided by Ms G.
On the other hand, the husband alleges that the wife is a pathologically jealous person, who has wrongfully accused him of conducting extra-marital affairs and has also verbally abused and physically jostled him, and thrown kitchen items at him.
It is the wife’s case that the children have been exposed to these various incidents, in one form or another, in the sense envisaged by the legislation, as they have experienced its effects and remain emotionally unsettled by it.
Whether this exposure can be said to amount to abuse in the sense that it has resulted in either child suffering some serious form of psychological harm is unclear to me at this juncture. However, it would appear to be self-apparent that the current volatile situation between their parents cannot be helpful to either child’s sense of mental equilibrium.
This is the gravamen of the wife’s case. She asserts that it would be unsettling for both X and Y for there to be any significant changes, in their care arrangements, at this stage, because of the emotionally volatile situation currently prevailing between their parents.
For his part, the father asserts that if anything untoward has occurred, particularly in the context of him taking the children to Victoria, it was an impulsive gesture arising out of frustration because of the wife’s unreasonable opposition to a perfectly acceptable interstate holiday, which has resulted in no harm, of any kind, befalling the children.
On his case, it is the wife who is the controlling parent because of her withholding of the children from him on the spurious basis of the holiday. He further asserts that she is ratchetting up tensions by her unseemly focus on financial issues. Essentially, each asserts that he/she is the victim of the other’s unreasonable and controlling behaviour.
Urgent spousal maintenance
Section 77 of the Act provides as follows:
“Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.”
The essence of any application made pursuant to section 77 is that it is made under circumstances of urgency or extreme financial emergency. This follows as a result of the expression immediate need utilised in the section. As such, applications for urgent spousal maintenance are invariably made in circumstances where it is not possible for detailed affidavit and/or financial data to be provided by the parties concerned.
Sometimes the degree of emergency is so extreme that it is appropriate for an application pursuant to section 77 to be made on an ex parte basis or pursuant to an oral application only. By necessity, an order made pursuant to section 77, is ad hoc in nature and intended to remain in place for a period of relatively short duration. Such orders have been described as “stop-gap” orders.[21]
[21] See Chapman & Chapman (1979) FLC 90-671
They are intended to make financial provision for a party to a marriage to tide him or her over the period of emergency until such time as the court may make a more detailed examination of the prevailing circumstances, either on an interim or final basis. Accordingly, in such cases, because of their limited nature, the court’s discretion is wider. However, an applicant for urgent spousal maintenance is still required to satisfy the threshold question of financial need and capacity to pay on the part of the respondent concerned.
The Full Court of the Family Court in Bevan & Bevan[22] determined that the approach to be taken in respect of applications for spousal maintenance involved a four step process as follows:
·a threshold finding under section 72 – is a spouse unable to support him/herself for any adequate reason – relating either to the care of children or incapacity for work;
·consideration of section 74 and section 75(2) – is it proper to make an order;
·no fettering principle that a pre-separation standard of living must automatically be awarded where the respondent’s means permit;
·the discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.
This approach was confirmed by the High Court in Hall & Hall.[23]
[22] Bevan & Bevan (1995) FLC 92-600 at 81,981-2.
[23] Hall & Hall [2016] HCA 23 at [3]-[5].
In Ashton & Ashton Nygh J characterised a section 77 application (in distinction to an application under section 75) in the following terms:
“‘An application for interim maintenance is basically different from an application for urgent maintenance. An application under section 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order. ...
...
On an application for interim maintenance, the normal procedures relating to applications for maintenance under s 74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of affidavits by both parties and the filing of financial statements must be observed.” [24]
[24] See Ashton & Ashton (1982) FLC 91-285 at 77,614
It is the position of the husband that there are not circumstances of sufficient urgency and further there is an inadequacy of material to justify the making of an order under section 77, even for a closely confined period. Rather, it is his submission that the court should fix the wife’s application as if it was an application for interim hearing and so give him an opportunity to be heard in respect of it.
Essentially, if this occurs, he submits that there is a strong possibility that the wife will not be able to persuade the court that he has the means to satisfy any order and the wife herself has sufficient resources to support herself, including a well-established capacity to earn.
On the other hand, the wife contends that it is axiomatically apparent that she is in dire financial straits – her income is nil; she is being threatened with demands from agents of the husband – to justify an urgent order being made, particularly as the delay in the court being able to deal with her application in a more thorough manner has arisen because of the recalcitrance of the husband.
In my view, in the absence of more evidence from the husband, I am not in a position to determine any application pursuant to section 72 of the Act, for interim spousal maintenance, because I am not in a position to gauge in any proper way what is his reasonable capacity to provide support to the wife.
Litigation funding
Pursuant to section 117 of the Act the general rule is that each party in family law proceedings should bear his or her own costs. However, pursuant to section 117(2) of the Act the court is authorised to make such order as to costs, whether by way of interlocutory order or otherwise as it considers just.
This power, in tandem with the general powers of the court, in property proceedings under the Act, detailed in section 80 has been held as providing jurisdiction to the court to make orders in respect of the prospective funding of litigation in respect of property issues.
Section 117(2)(A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
In Zschokke & Zschokke[25] the Full Court of the Family Court said as follows, in respect of the desirability of legal representation and how the court was to approach the question of funding such representation:
“The desirability of legal representation for both parties in family law proceedings … is, in our view, self-evident, … But legal representation is not, unfortunately, without cost, and in a case such as the present, it is a matter of balancing the desirability of representation for one or both parties against the availability of money to fund such representation and the manner in which the necessary funds could justly be made available.”
[25] Zschokke & Zschokke (1996) FLC 92-693 at 83, 220.
In an earlier case, Hogan & Hogan[26] Bulley J considered that the following considerations were likely to be relevant to the granting of an order, pursuant to section 117(2) of the Act, in respect of prospective litigation funding:
·One party had control of the assets and the income of the marriage;
·The other party had no means to present adequately his/her case;
·There was some complexity to the parties’ financial affairs requiring expert evidence;
·The parties concerned had substantial wealth and one party was dependent on the other for financial support;
·The applicant concerned had a strong prime facie case.
[26] Hogan & Hogan (1986) FLC 91-704.
Underpinning the rationale for making an order for litigation funding, if all these provisos were met, was the fact that any such advance could ultimately be taken into account in the ultimate property settlement order made by the court.
Conclusions
Being professionally qualified, the parties will be familiar with the concept of professional work ethics. The same principles apply to the sorting of legal cases according to their urgency and complexity to ensure each case is assigned to the correct forum, sooner rather than later, for appropriate management and to ensure its expeditious resolution.
The current matter is a complex case. Not so much for the subject matter of the litigation, but because of the potency of the emotions it has precipitated, which are likely to inhibit a consensual approach to the shared problems arising from the parties’ separation.
This requires consistent management to ensure that whatever possibilities there are for resolution of issues to occur, these are grasped with alacrity and the issues that remain are approached so their resolution can occur at minimum expense to the parties themselves and the least trauma to the children concerned.
In my professional assessment, which I sincerely hope is wrong, the case is already showing the signs of trench warfare litigation, in which every point is taken and no efforts are spared to injure the opposing parent, regardless of the financial implications arising.
For obvious reasons, such litigation is essentially destructive in nature and potentially injurious to the wellbeing of children. Potentially, such cases become more concerned with the perceived rights of parents, rather than those of children to have a happy and secure childhood.
These cases require careful judicial management in order to provide the maximum protections for children from the more corrosive aspects of adversarial litigation but also, with what must be closely confined parameters, to protect litigants from themselves and spare them spending excessive amounts in legal fees, which cannot be considered as being properly proportionate to their level of asset backing.
I make these comments not in any spirit of condescension of the parties, but rather as an invitation to consider how they each choose to approach the case from hereon in. I am also well aware that the powerful emotions precipitated by this case are not likely to pre-dispose anyone involved in it to objective and dispassionate evaluation. That must be the function of their respective legal advisors.
This court is not equipped to provide the intensive management that this case is likely to require. It is a lower level court of federal jurisdiction, which deals with a high volume of cases in a variety of areas, including but not exclusively family law. At some stage, the case must be transferred to the Family Court of Australia, a specialist court, which deals with a significantly lower volume of matters, exclusively in family law.
The essential question, at present, is when is the appropriate time for the matter to be transferred – straight away or after some further interim determination has occurred, after a process of conciliation and the preparation of a family report. As with all issues arising in this case, this issue must be determined judicially and in a manner which does not cause undue injustice to one or other of the parties.
At this stage, I am not in a position, due to the absence of comprehensive answering financial documents, from the husband, to deal properly and justly with the wife’s application for both litigation funding and an income stream, which may possibly last for well over twelve months, until the case comes on for final hearing.
This is regrettable. The wife raised financial issues in her amended application filed 5 June 2020. It is her case that prior to this date she has agitated for disclosure of details in respect of the husband’s financial situation but none have been forthcoming. This may be so; it may also be the case that the husband is stone walling in respect of the issue, for tactical reasons.
What is concerning is that the husband has been active in respect of issues pertaining to the wife’s circumstances through a number of indirect processes – the letter of demand; the offer of a job – but has done nothing actively in respect of disclosing his own circumstances. This is not to his credit. However, the upshot of this is that I am unable to deal with the section 72 or section 117 applications at this stage in any definitive way.
This is highly prejudicial to the wife. She is not currently employed and is depleting her financial resources in the support of the children. Neither party has advised me of what is the position so far as any administrative assessment of child support is concerned, other than the wife has indicated that she receives nil amounts in this regard.
In all these circumstances, regardless of the wife’s undoubted earning capacity, as a health care worker, it is likely that she is subject to some significant level of financial privation. Although I am not in a position to conclusively determine the issue, there also seems to be a level of cynicism in the offer of employment which emanates from the business, which is associated with the husband. It would seem to me to be probable that there will be difficulties with the wife working in such an environment, given the extreme level of conflict between the parties.
The question, which arises in this context, is what is the scope for the court to make an urgent award of spousal maintenance, in the wife’s favour, given the opacity regarding the husband’s financial situation and the medical advice of Dr K?
At this stage, I do not have a full appreciation of how the assets of the marriage are controlled. It would seem to be the case that the husband has interests in a number of businesses and the corporate entities that control them. The wife’s assets, apart from her interests in jointly owned real estate, are less significant. It seems probable that expert evidence will be required to value the husband’s various business interests.
The court is unaware, as yet what is the likely extent of each parties’ legal expenditure. However, given the rigour associated with the proceedings to date it would seem likely that this has been and will remain significant, unless the parties decide to approach the case in a different way.
Although it would seem to be the case that the wife has a strong case for dollar for dollar legal funding, the fact remains the husband, ostensibly at least, asserts that he is not in employment. How long he will remain incapacitated also remains unclear, which is the case with his financial affairs generally.
Given the concession, made by the husband, that the lease payments on the vehicle driven by the wife are currently up to date, it seems to me to be a pragmatic response to the urgency surrounding the wife’s situation that I make an order that he continue to make the necessary recurrent payments, as they fall due, in respect of this vehicle and ensure that all other liabilities, such as registration and insurance, are maintained.
The further question, which arises thereafter, is whether I should then convene a further interim hearing in respect of the remaining interim financial issues, on an expedited basis in this court, after having made appropriate directions regarding discovery and the filing of answering documentation or transfer the case to its appropriate ultimate forum – the Family Court – forthwith.
It is a finely balanced issue. It is usually preferable that a case gets to where it should be heard sooner rather than later, so that the ultimate decision maker is not trammelled by any earlier and possibly ill-considered determinations. On the other hand, I have embarked on the matter and am seized with some of the issues in the case.
In these circumstances, I have elected to transfer the proceedings to the Family Court but allocate an urgent conciliation conference, with a registrar of that court, in order for the issues of interim spousal maintenance and litigation funding to be conciliated. Thereafter, if the issues are not resolved, the registrar concerned can allocate the case to a judge of the Family Court with whatever degree of expedition is deemed appropriate.
I am fortified in this decision by comments made by senior counsel for the husband, which indicated her client was desirous of settling whatever issues that could be settled by a process other than by adjudication. However, for the process of conciliation to have any prospects of success it must be conducted on a level playing field after each party has made a full discovery in respect of their financial positions, in the terms envisaged by this court and the Family Court’s rules.
The issues concerning X and Y are also complex and particularly sensitive. I have no reason to doubt the love and devotion each parent feels for the children. However, their parental relationship is currently fraught with all manner of difficulties. It is labile and reactive in nature; the circumstances of their separation emotionally raw.
The case cries out for a family assessment report. The various report writers, who have been canvassed in the proceedings, thus far, have a similar logistical capacity to commence such a report in either mid-August or early September. I do not consider that it is my function to determine the identity of the report writer. That is a matter for the parties and their legal advisors.
I will order that the parties jointly commission a family assessment report, at their joint expense to be completed by a suitably qualified expert to be agreed between them, but direct that the report be completed, if at all practicable, by 30 September 2020. This will also assist the Family Court, I hope, in respect of determining any issues then outstanding if the parties themselves are not able to move forward consensually.
In my assessment, it would not be appropriate for the presumption of equal shared parental responsibility to be applied, at this early interim stage. In addition, given the poor and mistrustful parental relationship, which exists between the parties and which currently shows no sign of abatement, particularly in the context of the growing controversies surrounding their financial affairs, I have grave reservations that the application of the presumption would be either in the children’s best interests or its implementation reasonably practicable to implement.
The parties do not communicate. They have no capacity to solve problems. Every interaction between them, even those involving intermediaries, has the potential to lead to conflict. These circumstances are likely to have an adverse impact on the children. In these circumstances, I decline to apply the presumption. As such I do not have to consider the equal time regime, which the husband proposes for the children from October onwards.
In my view, the best interests of X and Y dictate that they should continue to live more with one parent than the other and given the current continuity of this arrangement, both before separation and since the intervention of the court, this parent should be the mother, at the interim stage [see section 60CC(3)(d)].
It seems highly probable that, notwithstanding her work commitments, she was the children’s primary carer during the marriage. The husband concedes that she did the majority of the household tasks and he was very busy building up his business and supplying the financial needs of the family.
This was also the view of the family consultant concerned. At this difficult time, the children’s best interests are likely to be served by stability and predictability in arrangements for their care, whilst they adjust to their parents’ separation. Dr M’s opinion, to my mind, that X and Y continue to be emotionally vulnerable, as a consequence of what occurred in December/January of 2019/20 does not appear to me to be an outlandish one.
In my assessment, Mr Millman’s actions in taking the children to Melbourne indicate that he was not optimally in tuned to the children’s emotional needs at this point but was rather more concerned with his own needs [see section 60CC(3)(f)].
At this juncture, apart from issues possibly to do with religious orientation, which remain inchoate, at this stage, there are unlikely to be any major long term issues, which relate to the children’s care, welfare and development, which will have to be made in the short to medium term. Long term issues regarding the children’s education seem to be well established and thankfully each child enjoys good health.
In these circumstances, I do not propose to make any specific order in respect of parental responsibility, rather, the provisions of section 61C of the Act will apply and each party will retain all the duties, powers, responsibilities and authority which, by law, parents have in relation to children [see section 61B].
The husband, to his credit, has indicated that he has no objection to the children continuing to attend church, with their mother, which is important to her. There is no suggestion that the mother has any impending plans to have the children baptised into the Christian faith. In the current fraught circumstances, it would be highly inappropriate for her to do anything in this regard, given the husband’s background.
In these circumstances, I will not make the specific injunction sought by the husband. In addition, the issue concerning the alleged paedophile of the wife’s congregation has been resolved satisfactorily. The person in question has not been in contact with the particular parish for a period approaching a decade and so cannot represent any specific threat to the children concerned.
Regardless of the application of section 61DA, I am still empowered to make any order for the parenting of a child, including an order for substantial and significant time, if I am satisfied that such an order is calculated to be in the best interests of the child concerned.
This process entails the consideration of various criteria, arising under section 60CC of the Act, bearing in mind the truncated nature of the current hearing and the fact that it precludes me from making findings of fact in respect of disputed issues.
In my view, the evidence currently available to me is sufficient to ground a reasonable belief that the children have been exposed to some species of family violence, although not the physical violence usually associated with the concept.
The evidence indicates that Ms Millman has been subject to coercive and controlling behaviour, emanating from Mr Millman, which has frightened her. This behaviour has been indicative of a power imbalance between the parties concerned, although they themselves disagree about who of them has superiority in this regard.
However, in my view, the husband’s actions, in taking the children secretly and unilaterally to Melbourne, in circumstances of high emotion, can only be considered to be imprudent and provocative. Thereafter, ostensibly through the agency of Ms G, he attempted to dictate to the wife what she could and could not do in respect of the children.
This behaviour, in my view, can only be characterised as being controlling, coercive and designed to intimidate. I concede that at the time the husband was highly stressed and probably suffering from depression as he continues to be. However, I am concerned that this intimidatory aspect of his conduct has also infused the manner in which he has subsequently approached these proceedings.
I further note that many of the other complaints of family violence alleged in the case relate to the difficult situation arising when the parties separated. This was not an easy situation for either of them and not one calculated to bring out the better aspects of their personalities.
In these circumstances, it is difficult to ascribe what occurred at separation as being incidents of coercive and controlling violence, rather than an unfortunate response to the situation prevailing at the time. I further note that there are no complaints of actual assault and police involvement has been limited. It is, however, readily apparent that there are significant issues of imbalance in respect of issues to do with financial control.
The children’s relationship with their father must be considered significant. Up until separation, the children shared a household with him and the effect of his evidence is that he was closely involved with the children’s school and extramural activities. It seems probable that Mr Millman takes a very strong interest in what the children do at school and how they are progressing there. This is evident from his desire to be able to take the children to their respective schools on at least one day per week.
In these circumstances, I am concerned as to what are likely to be the best mechanisms for the children to maintain a meaningful level of relationship with their father, within the context of an extremely problematic parenting relationship and given my preliminary finding that issues to do with continuity of care, for X and Y, must be given significant weight, at this interim stage, prior to a more detailed assessment of the family being undertaken.
In these circumstances, during term times, it seems to me to be appropriate that the current time spending arrangements, previously agreed upon by the parents, should continue. These can be criticised as being unduly complicated and requiring many handovers, but the wife is open to the arrangement continuing and, in my view, it will allow the children to retain a sense that their father remains involved in day to day aspects of their lives.
It also seems to me that the children will benefit from having a more extended and relaxed period of time with their father, during the current school holiday period, as well as in the September/October holiday. I have in mind a period of five consecutive days in each case. In the case of the current holiday period, this can be from 9.00 am on 15 July until 6.00 pm on 19 July.
On my calculations, pursuant to the current regime, the husband is due to have the children on the weekend commencing 11 July. This will continue and then the alternate weekend school term regime can recommence from 1 August. The Thursday catch-up can continue during holidays and school terms continuously, as can the Thursday morning school drop offs.
In the September/October holiday, unless the parties agree otherwise (and this decision may be influenced by the family assessment report, if to hand) the five day period should be in the first week of the holidays from 9.00 am 30 September until 6.00 pm on 4 October.
At the present time, overseas travel, from Australia, is difficult but not impossible. It seems to me to be unlikely that either would attempt to abscond from Australia, to another country with the children, given the strong ties each has with this country, both in terms of citizenship and business and property interests.
In addition, the world pandemic crisis has had the consequence of the prospect of international travel for holiday purposes being deferred, for the vast majority, if not all, Australian citizens, for the medium term. Accordingly, these are not pressing issues in the current matter.
I will however make an injunction restraining each of the parties from removing the children from the Commonwealth of Australia and place their names on the watch list maintained by the Australian Federal Police at each point of exit from the country.
The orders sought by the husband in respect of production of the wife’s diary (if she keeps one) and that she undergo some form of psychiatric review are both oppressive and premature. There is no evidence, apart from the husband’s assertions that the wife suffers from any specific mental health issue other than a normal reaction to the level of stress necessarily incidental to the traumatic circumstances of the parties’ separation and what happened afterwards. The husband is adjusting to the same circumstances.
I also decline to make any orders requiring the wife or her solicitor to disclose to the father details of any parents or other individuals said to be extraneous to these proceedings with whom they are asserted to have had contact. This is particularly so given the evidence available to me which indicates it is the husband who has clearly made such overtures. Rather, at this juncture, it seems more useful that I point out to each of the parties and those advising them, of the likely benefits of avoiding action which is likely to enflame rather than emolliate the currently extremely difficult situation between the parties.
In addition, in my view, whether the parties should undergo co-parenting counselling is a matter for them to determine not me. It seems counter-intuitive that intelligent individuals, such as the parties in this case, should be compelled to undertake an essentially therapeutic intervention. That is not to say that I do not consider that such an intervention has the potential to be highly useful to the parties. However, if it is to be engaged, it is preferable that it be done voluntarily rather than through compulsion.
As a necessary corollary of each party’s application for some form of litigation funding – the husband through access to superannuation, presumably via the Government’s initiatives relating to the early release of superannuation in response to the Covid-19 crisis; the wife through a dollar for dollar order – it is appropriate that the parties exchange deals of costs already expended and estimates of the costs likely to be incurred by each of them. The provision of such information may also provide a check against any ill-considered legal action.
I will make the usual orders, in the nature, of injunctions, restraining each of the parties from denigrating the other or directly involving the children in the litigation process. It is also appropriate that the parties keep each other informed of medical and educational issues as they arise from time to time, in a formal written manner.
In this context, a communication book makes sense, but it may be more appropriate that some electronic form or parenting app be engaged. I will give the parties the option in this regard. It also seems to me that any handovers, which do not occur at school occur at the wife’s home, provided of course there is no exhibited conflict between the parties, otherwise this will have to be revisited.
It is also appropriate that each party be able to attend school activities, routinely attended by parents, from time to time. In my view, it would not be in the children’s best interests to exclude one parent. I do not consider that such an outcome would lead to any normalisation in the children’s lives.
Finally, it is appropriate that orders by made for fairly liberal telephone or electronic communication between the children and each of their parents. This should occur each day at times to be agreed between the parties and failing agreement at 6.00pm each evening.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 3 July 2020
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