MILSON & MYRON

[2018] FamCA 417

FAMILY COURT OF AUSTRALIA

MILSON & MYRON [2018] FamCA 417

FAMILY LAW – CHILDREN – With whom a child spends time – Interim Orders – Variation – Where the parties had previously reached agreement in relation to certain interim parenting orders –Where there has not been a significant change in circumstances so as to warrant a variation to the original Order and deny the younger children spending time with their father – Where the proposed time will be supervised at a contact centre.

CHILDREN – Best interests – Where the mother seeks for the three younger children to change schools – Where the Court finds that the stability of the children continuing at their current schools to be in their best interests.

SPOUSE MAINTENANCE – Interim – Where the mother cannot currently support herself adequately – Where it is appropriate to take a more robust approach given the father’s non-compliance with Court orders – Where the father’s earning capacity supports the making of a spouse maintenance order in favour of the mother. 

PROPERTY – Interim distribution – Where the parties have reached agreement in relation to orders providing for the sale of the former matrimonial home – Where no order is made restraining the father from disposing or of reducing any matrimonial assets or furniture or further encumbering the matrimonial assets or property.

Family Law Act 1975 (Cth)

In the marriage of Redman and Redman (1987) FLC 91-805
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Milson

RESPONDENT: Mr Myron

INDEPENDENT CHILDREN’S LAWYER: Ms Tracey Geysen

FILE NUMBER: BRC 3628 of 2018

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 4 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Bunning

SOLICITOR FOR THE APPLICANT: KLM Solicitors

COUNSEL FOR THE RESPONDENT: Mr K. Wilson QC

SOLICITOR FOR THE RESPONDENT: McInnes Wilson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K. Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CNG Law

Order

it is ordered by consent

1. Paragraphs 2, 3, 4, 5, 7, 11 and 12 of the Order made by the Federal Circuit Court on 9 April 2018 and amended on 17 April 2018 be discharged.

2. That within fourteen (14) days of the date of this Order the parties shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to sell the former matrimonial home located at C Street, Suburb D being Lot … on RP …6, Local Government Brisbane City, Title reference …48 and that sale shall be effected as follows:

   (a)       The listing price of the former matrimonial home shall be as agreed between the parties and if there is no agreement within seven (7) days of the listing date, the listing price will be as advised by a valuer nominated by the CEO for the time being of the Real Estate Institute of Queensland or his/her nominee and such a valuer acting as an expert, not as an arbitrator and such valuation being binding upon both parties and both parties shall bear equally the costs of such valuation.

   (b)       The former matrimonial home shall be listed for sale by private treaty with such Real Estate Agent as the parties shall agree and upon failure to agree within seven (7) days of the listing date, with such Real Estate Agent as nominated by the CEO for the time being of the Real Estate Institute of Queensland or his/her nominee.

   (c)       In the event that the former matrimonial home has not been sold on or before a date of three (3) months from the listing date (herein referred to as ‘the date of failure to sell by private treaty’) and unless otherwise agreed between the parties, the parties shall make all such arrangements and do all such acts and things necessary to procure a sale by public auction of the real property upon the following terms:

   (i)The auctioneer shall be as agreed between the parties and if there is no agreement within seven (7) days from the date of failure to sell by private treaty, such auctioneer shall be as nominated by the CEO for the time being of the Real Estate Institute of Queensland or his/her nominee;

   (ii)The auction shall take place within one (1) month from the date of failure to sell by private treaty;

   (iii)The reserve price shall unless agreed upon by the parties be as advised by a valuer nominated by the CEO for the time being of the Real Estate Institute of Queensland or his/her nominee and such a valuer acting as an expert, not as an arbitrator and such valuation being binding upon both parties and both parties shall bear equally the cost of such valuation;

   (iv)In the event that the property is not sold by auction or by private negotiation within fourteen (14) days after the said auction and unless otherwise agreed between the parties, the parties shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to procure a second auction within a further five (5) days of the expiry of the said fourteen (14) day period otherwise upon the same terms and conditions as apply to the first auction;

   (v)If the former matrimonial home remains unsold after the auction(s) referred to herein at 1(c) then the parties shall confer, together with the agent, as to the best method of effecting a sale of the said property, and either party be at liberty to apply to the Court for further orders to effect the sale of said property, and in the interim the property shall be listed and remain listed for sale by private treaty.

   (d)       Upon completion of the sale of the former matrimonial home, the proceeds of sale shall be paid in the following manner and priority:

   (i)To discharge the mortgage encumbering the former matrimonial home;

   (ii)To pay all costs, commissions and expenses of the sale including advertising costs, Real Estate Agent’s fees and conveyancing fees and disbursements;

   (iii)To pay any Council rates outstanding in respect of the former matrimonial home; and

   (iv)The remainder of the proceeds to be held in KLM Solicitors Trust Account pending finalisation of this matter or else by agreement.

Property pool – schedule

1. That within fourteen (14) days of the date of this Order, the applicant is to serve upon the respondent a schedule identifying:

   (a)       The property and superannuation interests of the applicant and respondent (or either of them) (including any alleged “add backs” that the applicant contends should be taken into account);

   (b)       The alleged value of each item of property and superannuation interest (and if known, then so stating); and

   (c)       The liabilities that the applicant alleges should be taken into account.

2. That within fourteen (14) days from receipt of the applicant’s schedule, the respondent serve upon the applicant a schedule identifying:

   (a)       Any additional property or superannuation (including add backs) in which the respondent has an interest that is not included in the applicant’s schedule and any other property that the respondent alleges should be taken into account;

   (b)       Any item of property or superannuation that is agreed or disputed;

   (c)       Any liability that is agreed or disputed about being taken into account; and

   (d)       Any value that is agreed or disputed.

it is further ordered by consent until further order

1. Paragraph 6 of the Order dated 9 April 2018 and amended 17 April 2018 be suspended.

it is further ordered

1. The father spend supervised time with the children X born … 2009 and Y born … 2011 for two hours each fortnight at P Group, such time to occur on either a Saturday or Sunday and to be at the expense of the father.

2. The father pay spouse maintenance to the mother in the sum of $400 per week.

3. All remaining interim applications be dismissed.

NOTATION

It is noted that since 9 May 2018 the mother has arranged for the child B to stay temporarily with his paternal aunt, Ms E who filed an affidavit in these proceedings on 18 May 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milson & Myron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3628  of 2018

Ms Milson

Applicant

And

Mr Myron

Respondent

REASONS FOR JUDGMENT

1. Ms Milson and Mr Myron are the divorced parents of four children, namely, B (“B”) born in 2003, Z (“Z”) born in 2005, X born in 2009 (“X”) and Y born in 2011 (“Y”).

2. An incident occurred between B and Z of a sexual nature in March 2018 which has sent this family spiralling into crisis. The incident occurred while the children were in the father’s care. There is no suggestion that the father knew of the incident at the time it occurred but the mother contends that the father’s failure to supervise the children enabled the incident to occur. As a consequence of the incident the mother stopped all the children spending time with their father.

3. On 9 April 2018 the parents consented to an Order that the children B, X and Y re-commence spending time with their father supervised by third parties. Before that could happen the supervisors changed their mind about supervising and the mother brought a further application seeking to suspend the operation of that Order.

4. The parents agree that the 9 April 2018 Order, amended 17 April 2018, in so far as it provides for the father to spend time with B, should be suspended.

5. The matters about which a determination is required are firstly, what if any time the younger two children should spend with the father pending further order; secondly, whether the three younger children should change schools; thirdly whether Mr Myron should pay spouse maintenance to Ms Milson of $400 per week; and finally whether Mr Myron should be restrained from selling ‘any matrimonial assets or furniture or further encumbering the matrimonial assets or property’.

6. The parties have reached agreement on some matters namely, that the property currently occupied by Mr Myron at Suburb D should be sold; that outgoings on the home will be paid from the sale proceeds (with Ms Milson at liberty to seek any adjustments at trial) and that a balance sheet setting out the assets and liabilities should be prepared.

issues

1. The issues for determination at this interim hearing are:

   a)Has there been a significant change in circumstances warranting a change to the parenting Order made by consent on 9 April 2018 and amended 17 April 2018?

   b)Should the three younger children change schools at the end of term?

   c)Does Mr Myron have the capacity to pay interim spouse maintenance?

   d)Does the evidence support an interim injunction against Mr Myron restraining him from disposing of property?

2. I note the following:

   a)Paragraphs 2, 4, 5, and 6 of the mother’s Further Amended Application in a Case filed 1 June 2018 are not pressed;

   b)Both parties consent to paragraphs 1, 2 and 3 of the order proposed by the independent children’s lawyer including the notation thereto;

   c)The parties agree that B and Z will not spend time with the father.

proposals of each party

1. Ms Milson proposes:

   a)That X and Y spend no time with their father at least until the release of the family report expected in late June 2018 (although what then happens if the mother continues to oppose time is unclear);

   b)That Z, X and Y change schools;

   c)That Mr Myron pay interim spouse maintenance of $400 per week;

   d)That Mr Myron be restrained from disposing of property. 

2. Mr Myron proposes:

   a)That X and Y spend two hours a fortnight with him at a contact centre as proposed by the independent children’s lawyer;

   b)That Z, X and Y remain at their current schools;

   c)That Ms Milson’s application for interim spouse maintenance and an injunction be dismissed.

3. The independent children’s lawyer proposes that X and Y spend two hours a fortnight with their father at a contact centre and that Z, X and Y remain at their current schools.

background

1. Before turning to consider the issues I note by way of background that Ms Milson and Mr Myron were married for fifteen years before separating in 2015 and divorcing in 2018. Ms Milson is forty years of age and not currently employed although she recently worked in hospitality. Mr Myron is forty-seven years of age and ceased self-employment recently.

2. The mother has re-partnered with Mr F although they do not live together.

3. The father has re-partnered with Ms G.

4. After separation the child B lived with his father. B has lived with a number of people since March 2018. He currently lives with the father’s sister and it is proposed that he continue to stay with her for the time being. He has expressed suicidal thoughts and is consulting a psychologist. He has not spent any time with his father since 3 April 2018 and, according to his mother, has expressed a wish not to see his father. B attends H School and plays soccer.

5. Z remained living with her mother after separation. She has not spent time with her father since March 2018.  She attends J School. She is also consulting a psychologist and at the time of hearing was an in-patient at the K Hospital as a result of concerns for her mental health. She was due to be discharged on 4 June 2018.  

6. X and Y remained living with their mother after separation but spent weekly time with their father. They attend L School. They have not spent time with their father since 28 February 2018. They last spoke to their father by telephone on 13 April 2018. As at 18 May 2018 the mother had no concerns about their mental health or how they were coping with the family situation. Due to their young age the mother was of the view at that stage that they were ‘oblivious to the adult issues that surround this matter’.

7. As a result of the incident that occurred between B and Z, B was charged with a criminal offence and the matter is proceeding through the criminal justice system’s youth restorative justice program.

8. To compound an already fraught situation it is contended by the mother that on Easter Sunday, 1 April 2018, the father in the company of B forcibly removed the child X from Mr F’s home while the children were involved in an Easter egg hunt. It is further alleged that an attempt was made to also remove the child Y. The police were again involved and the father and B face criminal charges relating to stalking. A temporary protection order was also made in favour of the mother and the children. That order was varied on 10 May 2018. It does not prevent the children spending time with their father pursuant to order or written agreement.

9. Perhaps as a consequence of the pending criminal charges, the father has not answered the mother’s allegations in relation to the Easter Sunday incident in an affidavit in these proceedings.

10. X was returned to the mother on 5 April 2018. 

11. B has also made and now recanted allegations that he was sexually abused by his mother when he was aged ten or eleven. On 16 April 2018 he told his mother that his father put him up to making the allegations.

12. Up until the mother ceased the children spending time with their father in March 2018, the children X and Y were spending every Wednesday to Friday with their father.

13. The mother makes very serious allegations of family violence against the father including ‘holding her by the throat’. While her evidence on this issue generally lacks particularity and detail it is nevertheless a matter that requires careful consideration in determining what if any order should be made. On 3 March 2016 Mr Myron consented without admission to a protection order in favour of Ms Milson which expired on 3 March 2018. These allegations relate to incidents that allegedly occurred during the marriage.  

Has there been a significant change in circumstances warranting a change to the order made by consent on 9 April 2018?

1. The reference to whether or not there has been a significant change in circumstances relates to what is generally called a ‘guiding principle’ or ‘rule’ established in the case of Rice & Asplund.[1] The main purpose of it is to minimise repeated hearings about the same parenting issues but the best interests of children remains paramount. In this particular case given the allegations of violence it is important to ensure that any order continues to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[2]

   [1] (1979) FLC 90-725.

   [2]Family Law Act 1975 (Cth), ss 60CC(2)(b), 60CG.

2. In this case it was only on 9 April 2018 that the parents reached agreement that X and Y should spend supervised time with their father. The Order included a notation in which the parents envisaged the children spending even more time with their father.

3. What has happened since then that would justify an order for no time? The mother relies on the following matters to support her application:

   a)On the 16 April 2018 the mother found the child X ‘in a ball crying’. The child said ‘nobody cares about me’; ‘nobody hears me’; ‘everybody just leave me to myself’; ‘everyone calls me a sook’ and ‘everyone tells me when I am upset that I am “special”’. X said he was worried about being left in a shopping centre one day as his father had left him once. He referred to the father and B taking him on Easter Sunday stating ‘why would anyone think it is ok to snatch a child whilst they were collecting Easter eggs and doing something fun’; ‘did he really think about how scary that was for me’; ‘I remember going around collecting eggs and Dad just jumping out of the bushes and then I just got down low and ran as fast as I could but someone stopped me’. The mother describes the child crying hysterically while talking;

   b)Y has been experiencing night terrors and bad dreams;

   c)The child Z has been admitted to the K Hospital after confessing to suicidal thoughts;

   d)The child B has also admitted to suicidal thoughts;

   e)On 12 April 2018 police informed the mother that they would not be proceeding with any charges against her for alleged sexual abuse of the child B;

   f)On 16 April 2018 B told the mother that he had been forced to make the allegation against the mother;

   g)On 22 May 2018 X completed an anxiety scale test in which he expressed fear of his father.

4. This is a family in crisis. Matters keep unfolding that continue to disrupt family life. It is not surprising that X and Y are now exhibiting some signs of stress. Prior to 18 May 2018 the mother says the little boys seemed oblivious to the tensions in the household but since then there has been one event where X has shown extreme distress and an undisclosed number of nights when Y has experienced night terrors. There may be many reasons for Y experiencing night terrors.

5. The issues that have arisen for Z and B do not in my view impact directly on whether X or Y should spend supervised time with their father.

6. The mother’s discovery that B was allegedly forced to make allegations against her by his father is a concerning development, if true. Such an act would demonstrate not only a significant degree of malevolence towards the mother, by the father, but also a preparedness to inflict serious emotional harm on his son. However, the proposed order under consideration does not relate to B and any time spent by the younger boys with their father will be supervised.

1. There is no evidence from the mother as to the circumstances surrounding X filling out the anxiety scale test. Given the nature of the test it seems likely that someone assisted him. I can place little weight on the content of the form in those circumstances.

2. On balance I am not satisfied that the agreement so recently reached between the parents should be varied so as to prevent the younger two children spending any time with their father.

Should the three younger children change schools at the end of term?

1. In relation to the change of schools for the three younger children the mother argues:

   a)The ongoing payment of fees remains uncertain;

   b)The mother wishes to change the schools so that they are closer to her current residence;

   c)Z has recently expressed a wish to start afresh at a new school because she is worried about students asking why she has been absent from school;

   d)X ‘feels nervous’ on the way to school and has told his mother than he does not want to be at the school or in the area.

2. It appears from the mother’s affidavit filed 1 June 2018 that the main reason for a change of schools relates to her inability to pay the fees. The other reason raised during submissions was the practicality of the children being closer to the mother’s current residence.

3. As noted above, this is a family in crisis. There has been upheaval and instability for the children. In my view the stability of school may well be an important anchor for the children at this time. In view of the evidence produced by the father and his assurance that the school fees for the boys are paid until the end of the year and that there is a moratorium on fees for Z until August, the uncertainty about school fees has been removed for the boys for this year and there is no urgency in relation to Z’s school. Ms Milson has moved house at least twice in recent times. She is currently renting a property. There is no certainty that her current residence will be long term.

4. I am not persuaded by the reasons proffered by the mother that the children should change schools.

Does Mr Myron have the capacity to pay interim spouse maintenance?

1. It is common ground that Ms Milson cannot currently support herself adequately. She seeks a modest contribution towards her rent from Mr Myron.

2. Until 11 May 2018 Mr Myron was operating his own business and earning a salary of $436,618 per annum. His business is operated through a corporate entity – M Pty Ltd.

3. The circumstances of Mr Myron placing his business into voluntary liquidation, other than the minute of meeting which resolved that the company was insolvent, is unknown. Mr Myron was the only attendee at the meeting.

4. Mr Myron has a personal taxation liability of $157,977.

5. On 16 April 2018 the company N Pty Ltd was registered. Mr Myron has a ten percent shareholding and is a director. Mr Myron reveals nothing more about this company other than that he does not currently receive a salary or income from it.

6. Mr Myron says he is registered with two recruitment agencies and is actively seeking work. He says that he has an interview on 4 June 2018.

7. As recently as 27 April 2018 Mr Myron offered to pay spouse maintenance of $400 per week. That offer was accepted by Ms Milson on 4 May 2018.

8. On 21 May 2018 Mr Myron was ordered to file a financial statement by 1 June 2018. He did not do so and offers no explanation for his breach of an Order.

9. In circumstances where Mr Myron has failed to comply with an Order that he disclose by way of a financial statement his assets and liabilities, income and outgoings, I consider it appropriate to take a more robust approach than might otherwise have been the case if there had been more extensive evidence before the Court. Further, the proposed order is interim in nature and a greater degree of flexibility is thereby afforded to the Court when considering the application which by its nature is intended to be reconsidered.[3]  

   [3]In the marriage of Redman and Redman (1987) FLC 91-805.

10. I note also that when I heard submissions in relation to a costs application made by Ms Milson against Mr Myron on 21 May 2018 there was no suggestion that Mr Myron’s business had gone into liquidation and no submission that his financial circumstances would preclude him meeting a costs order.

11. Given his earning capacity and his failure to particularise any incapacity to meet a weekly payment to Ms Milson I find that Mr Myron should pay interim spouse maintenance in the sum of $400 as requested by Ms Milson and I will so order.   

Is there evidence to support an interim injunction against Mr Myron to restrain him from disposing of property?

1. Ms Milson applies for an order restraining Mr Myron from disposing of or reducing any matrimonial assets or furniture or further encumbering the matrimonial assets or property.

2. Prior to granting an injunction, the following matters need to be considered:

   (a) whether there is a serious issue to be tried;

   (b) the balance of convenience;

   (c) whether there is an objective risk of disposal of assets if the injunction is not granted; and

   (d) if it is considered appropriate to issue injunctions, the Court should to the minimum extent required.

3. There is no evidence before me which would satisfy any of the above considerations. The only factor relied upon during submissions to support the injunction was Mr Myron’s failure to file a financial statement as ordered and the failure to provide information about the circumstances of the business being placed into liquidation and the establishment of the new company. Such factors are inadequate in my view to support the imposition of the injunction sought.

4. I propose to dismiss the application for an injunction.

Miscellaneous

1. I do not propose to make an order that the three youngest children live with their mother as sought in paragraph 3 of her application filed 1 June 2018 as paragraph 1 of the Order made on 9 April 2018 already does so.

2. The parties were in agreement that an order in terms of paragraphs 10, 15 and 16 should be made.

3. There is already an Order for disclosure made by consent on 21 May 2018. Accordingly, I do not propose to make an order in terms of paragraph 26 of Ms Milson’s application.

4. Ms Milson also sought the following relief:

   Outgoings and expenses

   a)That the respondent be responsible for all rates and water bills that fall due up until settlement of the sale of the former matrimonial home.

   b)That the respondent be solely responsible for all outgoings and expenses associated with the former matrimonial home that fall due up until settlement of the sale of the former matrimonial home.

   c)That the respondent be solely responsible for the expenses and any and all repairs or maintenance required to be undertaken on the former matrimonial home to enable the property to be listed for sale.

5. I note that included in the order to be made by consent is a provision for any outstanding rates to be paid from the sale proceeds of the Suburb D property.

6. No particular submissions were made in support of the further provisions set out in paragraph 55 above and my sense is that there was satisfaction with the issue being dealt with on the basis that if the outgoings are not paid then an adjustment will be sought from the proceeds of sale of the Suburb D property. Accordingly, I do not intend to include in the Order, the provisions in paragraph 55 above.

Conclusion

1. Ms Milson’s application to vary the 9 April 2018 Order so that X and Y spend no time with their father will be dismissed because I am not satisfied that there has been a significant change in circumstances that warrants such a variation. Despite the allegations made against the father including serious allegations of violence, Ms Milson consented on 9 April 2018 to the children spending more extensive time with their father than is now proposed. The Order even envisaged increasing that time. The matters now raised by Ms Milson do not persuade me that it is in the younger children’s best interests to prevent them spending any time with their father.

2. The children will continue at their current schools because the school fees for X and Y have been paid until the end of the year and there is a moratorium in place for Z’s school fees until August 2018. Given the upheaval in the family in recent times I consider the stability of the children continuing at their current schools to be in their best interests.

3. There is no issue between the parties that Ms Milson is currently unable to support herself adequately. Although Mr Myron has recently placed his business into liquidation he has a significant earning capacity. He has chosen to breach a Court Order that he file a financial statement and provides only the most scant evidence about his financial position. In those circumstances a robust approach is appropriate particularly as this is an interim hearing. Accordingly, I will order Mr Myron to pay spouse maintenance of $400 per week.

4. The application to restrain Mr Myron from disposing of property will be dismissed due to a lack of evidence to support that application.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 June 2018.

Associate: 

Date:  8 June 2018