NATHAN & WESTON
[2018] FamCA 771
•27 September 2018
FAMILY COURT OF AUSTRALIA
| NATHAN & WESTON | [2018] FamCA 771 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Interim orders – Where the mother seeks to relocate internationally with the children during the interim – Best interests of the child – Where the mother seeks to take an international holiday with the children – Where there is no information before the court about the relationship the children have with the parties – Where the father concedes that he has historically had difficulty with over consumption of alcohol – Where supervision of the father’s time with the children is not required. FAMILY LAW – PROPERTY – Interim property settlement – Whether to make orders for an interim settlement of property. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA |
| Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 Kowaliw & Kowaliw (1981) FLC 91-092 Marvel v Marvel [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 MRR v GR (2010) 240 CLR 461 SS & AH [2010] FamCAFC 13 Stanford v Stanford (2012) 247 CLR 108 Strahan & Strahan (Interim property orders) (2011) FLC 93-466 |
| APPLICANT: | Ms Nathan |
| RESPONDENT: | Mr Weston |
| FILE NUMBER: | ADC | 3285 | of | 2018 |
| DATE DELIVERED: | 27 September 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Clelands Lawyers Adelaide Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Jordan & Fowler Barristers & Solicitors |
Orders
That further consideration of the extent of time that the children spend with the father is adjourned to 10 December 2018 at 9am.
That X born … 2010 and Y born … 2012 (“the children”) live with the mother.
That until further order the children spend time with the father as follows:-
(a)Each Tuesday from 4 pm until 7 pm during school term or from 10 am until 4 pm during school holidays;
(b)Each alternate Saturday from 10 am until 4 pm commencing 6 October 2018;
(c)Each alternate Sunday from 10 am until 5 pm commencing 14 October 2018;
(d)Such further and other times as the parties may agree.
That the father be restrained and an injunction granted restraining him from:-
(a)Consuming alcohol for a period of twenty four (24) hours prior to or during any period of time that the children are in his care;
(b)Denigrating the mother, members of her family including Ms C in the presence of the children or allowing any other person to do so;
(c)Communicating with or contacting the mother whether by telephone, email, SMS, social media or letters except where contact is permitted for the sole purpose of the welfare of and the father’s time with the children.
That all handover of the children between the parties shall take place at B Street, Suburb C or such other location as the parties may agree.
That the father shall pay:-
(a)Interim spousal maintenance in the sum of EIGHT HUNDRED AND FIFTY DOLLARS ($850) per week in addition to any Child Support Assessment in respect of the children;
(b)The education costs for the children’s attendance at D School or such other school as may be agreed between the parties in writing including but not limited to stationery, books, excursions, camps, IT devices, uniforms and other school based expenses;
(c)The cost of all extra-curricular activities (and uniforms and equipment if applicable) in which the children are currently involved.
That the father forthwith provide the mother with a list of medical specialists he has consulted in the past twelve (12) months.
That within twenty one (21) days the parties jointly instruct Mr E of F Real Estate to value the property at G Street, Suburb H, SA, … including the whole of the land comprised and described in Certificate of Title Volume …, Folio … and that the father is to meet the costs of the valuation at first instance.
That the father do pay all tax invoices of MSM Legal in relation to the mother’s Visa Application within seven (7) days of receipt of same.
That within seven (7) days the father do pay Clelands Lawyers Trust Account on behalf of the mother the sum of THIRTY THOUSAND DOLLARS ($30,000) for litigation funding.
That the mother be at liberty to travel with the children to the United States of America for a period of twenty eight (28) days leaving Australia after the conclusion of school Term 4 2018 and returning to Australia prior to the commencement of Term 1 in 2019.
That the father do deposit into the mother’s nominated bank account the sum of FIFTEEN THOUSAND DOLLARS ($15,000) within seven (7) days of this order to enable the mother to book and pay for travel expenses to the United States of America.
Pursuant to section 11F of the Family Law Act the parties and the children attend a family dispute resolution conference at the Family Court of Australia at Adelaide with a family consultant on 23 October 2018 at 9.30am to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
That the parties do obtain a Family Assessment Report from Ms K of J Group directed to the mother’s application for relocation, the father’s application for shared residence and the time that the children are to spend with each of the parties at the father’s cost at first instance NOTING that the assessment can commence on or after 23 January 2019.
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 Nathan & Weston 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 ADELAIDE |
FILE NUMBER: ADC 3285 of 2018
| Ms Nathan |
Applicant
And
| Mr Weston |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 13 August 2018 Ms Nathan (“the mother”) seeks final orders that she have sole parental responsibility for X born in 2010 and Y born in 2012 (collectively “the children”), that they live with her and spend time with Mr Weston (“the father”) subject to the mother being at liberty to relocate the children’s residence to the United States of America (“USA”) and specifically to State L.
In addition, the mother seeks orders for settlement of property adjusted as to 70 percent of the net assets of the parties to the mother and the balance to the father.
By his Response filed 14 September 2018, the father seeks equal shared parental responsibility for the children and that they live with the parties on a week about basis. Whilst he concedes that it is just and equitable for orders for property settlement to be made, he considers that the net property of the parties should be adjusted as to 30 percent to the mother and 70 percent to the father.
The matter was listed for interim argument with the parties being able to agree many of the interim issues in dispute. They were not able to agree the following matters:-
(1)The mother’s application to relocate the residence of the children on an interim basis to the USA.
(2)The extent of time that the children should spend with the father.
(3)Whether the father’s time should be conditional upon him recording a nil alcohol reading at the commencement of his time with the children.
(4)If the mother is not permitted to relocate with the children to the USA then she seeks to travel with the children to the USA for a period of six weeks to be taken in the December/January school holiday period.
(5)That the father provide $20,000 to the mother to enable her to book and pay for the holiday costs together with reasonable living expenses.
BACKGROUND
The mother was born in the USA and remains a citizen. The mother lived in the USA until her relocation to Australia with the children on 2 July 2017.
The father is aged 43 years and whilst born in Africa, he is now an Australian citizen.
The parties commenced their relationship in 2007. The children hold dual Australian and USA citizenship.
The parties separated on 19 April 2018.
The mother alleges that the relationship with the father “has been marred by long term, physical, emotional, verbal and financial domestic violence”. She further alleges that the father suffers from severe substance abuse and in particular contends that he is an alcoholic.
The mother sets out a long detailed history of domestic violence and abusive conduct allegedly perpetrated by the father and says that the father’s adverse conduct continued after the parties separation and has resulted in the making of an interim intervention order to address domestic violence concerns with the conditions summarised as follows:-
(1)That the father must not assault, threaten, harass or intimidate the mother.
(2)That the father must not keep the mother under surveillance.
(3)That the father must not be within 50 meters of the mother.
(4)That the father must not contact or communicate with the mother in any way other than by email or SMS where the communication is directed to the welfare of the children or the father’s arrangements to spend time with them.
(5)The father must not remain within 50 meters of the boundary of any place of residence or employment of the mother.
(6)The father must not publish on the internet or by any other electronic means any material about the mother.
(7)That contact is limited in accordance with an order made under the Family Law Act 1975 (Cth) (“the Act”) or any community based mediation, Court or Tribunal hearing.
Since separation the father has spent time with the children on various occasions between 28 April 2018 and 4 August 2018.
Generally the time spent has been limited to a few hours and usually supervised either by the mother or a person nominated by her.
The father acknowledges that the parties up until separation lived in unhappy circumstances. Following separation the father remained in the former matrimonial home property situate in the Suburb M with the mother and children relocating to rental accommodation with the father’s aunt, Ms C.
Agreement was reached that the father would pay the sum of $850 per week to the mother by way of support for her and the children.
The father contends that he has paid other miscellaneous expenses for the children including personal electronic devices, sporting equipment and the children’s school fees. He has also paid $7,500 on account of the mother’s legal fees and a further $4,000 to the mother’s immigration solicitors.
The father opposes the mother’s proposal to relocate the children to the USA on an interim basis and whilst he is not opposed to the children being taken for a holiday, he does not concede that the proposed holiday should be for six weeks.
As part of the consent orders the parties have agreed that the father will pay interim spousal maintenance in the sum of $850 per week in addition to any Child Support Assessment. He also undertakes to pay the education costs of the children’s attendance together with related school based expenses and the cost of the children’s extra-curricular activities.
Agreement is also reached that he will pay litigation funding in the sum of $30,000.
The father considers that a reasonable estimate of the property pool is $4,735,200 comprising principally of the value of the farm property at $2,500,000, an investment of $1,125,000, various bank accounts totalling $123,700 and his superannuation of $550,000.
INTERIM PARENTING CONSIDERATIONS
In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the caution that must be exercised with making findings on contested evidence:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).
…
[122]In SS & AH [2010] FamCAFC 13 the majority (Boland & Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:-
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123]Later, at paragraph [100] their Honours amplified their comments and said:-
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter & Deiter [2011] FamCAFC 82 the Court considered the proper approach where an assessment of risk was required. At [61] the following appears:-
… Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The Full Court in Goode & Goode (2006) FLC 93-286 considered the principles applicable to parenting and interim proceedings now affirmed by the High Court in MRR v GR (2010) 240 CLR 461.
Section 60B of the Act outlines the principles underlying Part VII of the Act.
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.
The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).
In particular, and relevant to the current proceedings, when applying the considerations as set out in s 60CC(2), taking into account the provisions of s 60CC(2A) the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Section 61DA of the Act provides that when making a parenting order the Court must apply the presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility, but that the presumption does not apply where:-
(a)There are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence;
(b)In interim proceedings if the court considered it would not be appropriate in the circumstances for the presumption to be applied when making that order; and
(c)The court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
MOTHER’S APPLICATION TO RELOCATE THE CHILDREN TO THE USA
The mother argues that following the breakdown of the relationship, she is keen to return to the USA. She had not lived outside of the USA prior to moving to Australia with the children in July 2017.
She has been unhappy since her arrival and considers that it is untenable for her and the children to remain in Australia in circumstances where she has no family support.
She remains concerned and fearful of the father’s potential to engage in aggressive and/or controlling and coercive conduct.
She currently undergoes counselling via a Mental Health Plan and considers that she is “vulnerable, distressed and very fragile”.
The father acknowledges that at the date of separation and “for a considerable period prior to that time” he consumed alcohol to excess. Whilst not providing a detailed response to each and every allegation of the mother, he corroborates that his abuse of alcohol was a significant factor in the breakdown of the relationship. He acknowledges that he is an alcoholic and has sought assistance and counselling for alcohol addiction.
He contends that he has not consumed any alcohol since August 2018 and never consumes alcohol when the children are with him. He undertakes to abstain from the consumption of alcohol for a period of 12 hours prior to him spending time with the children.
The father opposes the mother’s application on the basis that he wants to spend regular time with the children who he considers to have a loving relationship with him.
PARENTING CONSIDERATIONS
The mother does not make any proposal for the children to spend time with the father if she is permitted to relocate the children to the USA. Prior to their departure, or until she is permitted to relocate the children, she proposes that they spend time with the father as follows:-
(1)Each Tuesday from 4 pm until 6 pm during school term and from 12 pm until 3 pm during school holidays;
(2)Each alternate Saturday from 12 pm until 3 pm;
(3)In the intervening week, on Sundays from 12 pm until 3 pm and in each alternate week thereafter; and
(4)Such further or other times as may be agreed between the parties.
The father seeks that the children spend time with him as follows:-
(1)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday;
(2)In each intervening week from the conclusion of school on the Tuesday to the commencement of school on the following Wednesday;
(3)For a period of seven consecutive days in each term school holiday period;
(4)For three periods each of seven consecutive days in the Christmas school holidays of 2018/2019 at times and on such dates as may be agreed between the parties or as ordered;
(5)From 4 pm on 24 December 2018 to 12 pm on 25 December 2018; and
(6)For a period of four hours on each of the children’s birthdays.
In addition, the father seeks to communicate with the children by telephone each Wednesday between the hours of 7 pm and 7.30 pm and that he be at liberty to attend sporting fixtures, extra-curricular activities and all school functions and events to which parents are ordinarily invited.
Section 60CC(2) provides that:-
The primary considerations are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations as set out in subsection (2) the Court is to give greater weight to the considerations as set out in s 60CC(2)(b).
In Mazorski v Albright [2007] FamCA 520 Brown J considered the definition of “meaningful” and observed:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence.
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…
Accordingly, the parties are clearly in dispute as to the weight that should be attached, if any, to either the current status of the children’s relationship with their father or the extent to which a relationship should be fostered and promoted into the future.
It is demonstrable that the mother’s proposal for the children’s relocation would not enable the father to maintain a relationship with them. The mother would contend that the father’s conduct is such that he presents as a risk to the children and given her application that she maintain the children’s primary care, her ability to function should not be impaired by her attendant distress, upset and anxiety if not permitted to relocate with the children to the USA.
The need to protect the children is a significant factor. It is asserted by the mother that if affected by alcohol the father may well present a physical, psychological and emotional risk to the children arising from his conduct.
Whilst the father’s admission that he is an alcoholic and has a history of alcohol abuse would provide some significant corroboration for the suite of allegations made by the mother, it says nothing of the children’s relationship with their father and whether there is an important emotional attachment between them. There is no evidence that would assist me in understanding the importance to the children of a relationship with their father or whether they are adversely affected by the current infrequent and at times unsatisfactory interaction with him, or more particularly, what would be the impact on them of having no effective physical relationship with him, but with the capacity to communicate via social media, Skype or other electronic communication.
The parties contemplate the need for a family assessment report and have nominated Ms K to undertake the assessment. Enquiries have confirmed that the report writer is able to commence the assessment on 23 January 2019.
The orders that the mother seeks represent a dramatic change for the children both in terms of where they live, their education and the relationship that they have with their father.
While I consider that at ages eight and five the Court should adopt a cautious approach as to the weight given to any views expressed by the children, nonetheless, an assessment might provide valuable insight into the current state of the children’s relationship with the father, or the potential impact upon them of severing their relationship with him. It is a relevant factor that interim orders made may well have long application over the period of time whilst the parties await a final hearing.
In circumstances where the Court has no evidence which might assist in determining the potential impact of the mother’s proposal for relocation on the children, I decline to make the orders sought at this stage.
The mother’s further application to take the children for a holiday to the USA has more merit.
There is no opposition by the father to the mother’s proposal other than the extent of time that she seeks to be away from Australia.
It is likely the children would gain significant benefit by the holiday proposed by the mother, but until the Court is able to assess whether there will be any adverse impact on the children by an extended holiday, it is reasonable that the mother’s holiday plans be limited to 28 days duration.
I also propose to seek s 11F reportable child inclusive counselling which whilst not an alternative for a full family assessment, nonetheless, will provide an indicator of the extent of the children’s connection with their father.
PARENTAL RESPONSIBILITY
In circumstances where the mother’s allegation of domestic violence and at the very least alcohol abuse are not denied, the presumption of equal shared parental responsibility is rebutted and therefore I am not required to consider whether the children should spend equal time with the parties, or if not, significant and substantial time with the father.
It is also not disputed that the children’s best interests are served by living primarily with the mother. The issue remains as to the extent to which the children should spend time with the father.
I propose to fall in generally with the thrust of the mother’s proposal noting that supervision is not required. The period of time proposed by the mother can be safely extended pending the provision of the child inclusive memorandum which may assist whether the father’s time should be extended and in particular to include overnight time and block periods during the balance of the Christmas school holidays.
THE COSTS OF THE MOTHER’S PROPOSED HOLIDAY
The mother seeks that the cost of the flights for the mother and the children together with their reasonable living costs whilst in the USA be quantified at $20,000.
No assistance is provided as to the breakdown of the lump sum sought, nor has the head of power been identified in terms of how the lump sum is to be categorised.
Doing the best that I can, it is not likely to be by way of litigation funding or spousal maintenance. Accordingly, it could only be a payment by way of interim property settlement.
In Strahan & Strahan (Interim property orders) (2011) FLC 93-466 the Full Court considered that an application for interim property orders required the consideration of two distinct steps:-
(i)The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case triggers the Court’s power to invoke s 80(1)(h) to make an order for interim property settlement before a final hearing. At this stage the “overarching consideration” is the interests of justice;
(ii)The second stage is the “substantive step” where the provisions of s 79 must be considered and applied but with limitations, given that it is not a final hearing.
The onus is clearly on the applicant to establish that sufficient property or assets exist to satisfy the order that is sought, but also not to prejudice the respondent’s claim.
Because an interim hearing does not enable a proper evaluation of considerations pursuant to s 79, the Court should take a cautious approach.
In Stanford v Stanford (2012) 247 CLR 108 the High Court stated at [2]:-
Under section 79(2) of the Act, a court shall not make a property settlement order unless satisfied that it is “just and equitable” to do so. …
It appears that the parties agree that it is just and equitable for the Court to consider an alteration of the property interests of each of them. They are obviously not agreed as to the proportion of the property to be divided between them.
The Court is not required to undertake a “detailed enquiry as to the purpose for which the funds are used”, but an applicant is required to show “more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party”. (see Strahan & Strahan at 85,646 – 85,647).
The extent to which the mother has assisted the Court is marginal. The Court has found that subject to a more truncated period, the children travelling with the mother to the USA will be in their interests. Accordingly, there is some basis, albeit wafer thin to give favourable consideration to the mother’s application.
The amount as sought is unlikely to disadvantage the father and given that I propose to categorise the payment by way of interim property settlement, the opportunity exists to argue that the trip was unnecessary expenditure and should therefore be brought back to account by way of an add back (see Kowaliw & Kowaliw (1981) FLC 91-092 at 76,645).
Given that the mother is permitted to travel with the children to the USA for 28 days, I propose to reduce the amount to be paid to the mother to reflect a reduction approximating one third.
Accordingly, the quantum to be deposited into the mother’s nominated bank account will be reduced to $15,000.
CHILDREN TO SPEND TIME WITH THE FATHER
Arrangements have been made for the parties and the children to undertake a child inclusive assessment at 9.30 am on 23 October 2018. I propose to adjourn the proceedings to await the memorandum.
With some modest extension of time, I consider the mother’s proposal to have merit during the period of the adjournment. I am not prepared to make orders in terms of the father’s proposal without a better understanding of the status of the children’s current relationship with him.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 September 2018.
Associate:
Date: 27 September 2018
Key Legal Topics
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Family Law
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Injunction
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