O’ROURKE & O’ROURKE
[2017] FCCA 3028
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O’ROURKE & O’ROURKE | [2017] FCCA 3028 |
| Catchwords: PRACTICE & PROCEDURE – Non-compliance – late filing. |
| Legislation: Family Law Act 1975, ss.72, 74, 75(2) Federal Circuit Court Rules 2001, rr.1.03(1), 1.03(4), 6.19, 15.28, 24.06 |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 Strahan & Strahan [2009] FamCAFC 166 |
| Applicant: | MR O’ROURKE |
| Respondent: | MS O’ROURKE |
| File Number: | MLC 4460 of 2017 |
| Judgment of: | Judge Harland |
| Hearing date: | 13 November 2017 |
| Date of Last Submission: | 13 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Testart Family Lawyers |
| Counsel for the Respondent: | Mr Salamanca |
| Solicitors for the Respondent: | Pigdon Norgate Family Lawyers |
ORDERS
That pending further order the husband pay $400 per week towards the repayments for mortgage registered number (omitted) and (omitted) secured over the property at Property A in the State of Victoria with the first payment to be made on 11 December 2017.
That in the absence of agreement the children spend time with the husband from 12.00pm on Christmas Day until 12.00pm on Boxing Day 2017.
That the children spend time with the husband in the December/January school holidays, for three consecutive nights on 4 separate occasions with not less than three consecutive nights between each period, as agreed between the parties and failing agreement, for the first three nights of the school holidays and from 2 January 2018 until 5 January 2018 and from 11 January 2018 to 14 January 2018.
That the children spend time with the husband during school holidays:
(a)First and second school term school holidays for five consecutive nights as agreed between the parties and failing agreement commencing on the first day of the school holidays.
That for seven consecutive nights during the third school term holidays as agreed between the parties and failing agreement on the first day of the school holidays.
That otherwise all interim applications be dismissed.
The matter be adjourned to 13 December 2018 at 10.00am for final hearing (with an estimated hearing time of two days).
The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement, upon which they intend to rely at trial on or before 28 days before the final hearing.
Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge a Case Outline document as follows:
Parenting
a)a list of the documents to be relied upon;
b)a brief chronology;
c)an outline of contentions with respect to:
i.whether the presumption of equal shared parental responsibility applies (s.61DA),
ii.the considerations relevant to equal time and substantial and significant time (s.65DAA);
iii.each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
iv.other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
v.any other matters relevant to the decision; and
d)a statement of the precise orders sought
Property
a)a list of the documents to be relied upon;
b)a brief chronology;
c)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;
d)the main contentions on disputes as to:
i.what items are to be included in the pool; and
ii.the value of each asset in the pool;
e)a list of contributions claimed or contended for;
f)a list of other factors relied upon (s.75(2) factors);
g)the percentage adjustment contended for; and
h)a statement of the precise orders sought.
That the applicant’s solicitors notify the expert of the trial listing and arrange the expert to be available to give evidence at the beginning of trial and confirm with my chambers accordingly.
Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.
Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.
IT IS NOTED that publication of this judgment under the pseudonym O’Rourke & O’Rourke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4460 of 2017
| MR O’ROURKE |
Applicant
And
| MS O’ROURKE |
Respondent
REASONS FOR JUDGMENT
I am asked to determine the following interim issues:
a)The wife’s application for interim maintenance, being that the husband pay the mortgage payments and outgoing with respect to the former matrimonial home;
b)The husband’s application that the former matrimonial home be sold; and
c)The husband’s application for interim parenting orders.
The parties commenced living together in 2001, married on (omitted) 2008 and separated on 7 January 2017.
Procedural history and non-compliance
The husband commenced the proceedings on 10 May 2017. In his Initiating Application he sought detailed final and interim parenting and property orders. He sought both final and interim orders for sale of the former matrimonial home and the payment of various liabilities.
At the first return date the parties agreed on interim parenting orders and financial orders. The financial orders include a detailed list of documents to be disclosed. They also include notations that make it clear that both parties had agreed to the interim orders on the basis that both reserved their rights to agitate their respective interim applications on the next occasion.
A The Husband has consented to the parenting arrangements herein on an interim basis only and without prejudice to the interim Orders he seeks on the adjourned Interim Hearing date.
B That the Wife has consented to these Orders on an interim basis only and without prejudice to the interim Orders she seeks on the adjourned Interim Hearing date.
The matter was also listed for a contested interim hearing on 8 September 2017. The orders included my standard orders which state the following:
6. The parties not be permitted to rely on material filed less than (3) three working days prior to the next Court event.
7. Any Subpoena material to be relied upon at the next Court event must be made returnable at least (3) three days prior to the Hearing.
8. Pursuant to order 6 & 7 herein, leave will only be granted in circumstances of urgency.
I have found it necessary to include these orders in all my orders listing matters for interlocutory events because of serial non-compliance. Order 6 does no more than reflect the premise of r.6.19 of the Federal Circuit Court Rules 2001 (“FCC Rules”) which provides that any application and document filed with it may not be served less than 3 days before the hearing of an Application in a Case. Court rules and orders do not sit in a vacuum. They are not suggestions or guidelines. They are not made without purpose. The objects of the FCC Rules are to assist in the just, efficient and economical resolution of proceedings.[1] The parties have an obligation to avoid undue, delay, expense and technicality.[2]
[1] See FCC Rules, r.1.03(1).
[2] See FCC Rules, r.1.03(4).
The listing pressures and delays in the Court are well known and felt by all in the system: Court staff, lawyers and litigants alike. Inevitably when final hearings are delayed there is an increased demand for interim issues to be determined during the intervening period.
It is all too common for affidavits which do not raise urgent issues to be filed shortly before an interim or final hearing when the hearing date has been known to the parties for months. When affidavits are filed close to the hearing date, issues of procedural fairness arise. It is not simply a matter of not having an opportunity to file material in response.[3] The parties are entitled to know the case they are expected to meet. They cannot do this if material is filed shortly before a hearing.
[3] Practitioners should be mindful that when orders are made for simultaneous filing, the clear intention is that there be no responding affidavits. Responding affidavits can be distracting can result in documents that resemble pleadings rather than evidence.
It is also important to point out, as the High Court of Australia did in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, that when cases have to be adjourned because of the parties’ failure to prepare for a hearing, it impacts not just on the individual case before the Court but has a flow on effect on other cases before the Court.
On 6 September 2017, the husband’s new solicitors filed an Application in a Case. Unsurprisingly the Application the Case was not given the return date of 8 September 2017 but 13 November 2017. The Application in a Case consisted of eight pages of orders sought, the accompanying affidavit consisted of 169 pages of annexures and 17 pages of affidavit text. The affidavit bindings were coming apart and the 169 pages of annexures were not paginated. Rule 15.28 of the FCC Rules says the following:
15.28 Documents annexed or exhibited
(1) A document to be used in conjunction with an affidavit must be annexed to the affidavit.
(2) However, if because of the nature of the document or its length it is impractical to annex the document, it may be made an exhibit to the affidavit.
(3) An annexure must:
(a) be paginated; and
(b) bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure mentioned in the affidavit.
(4) If there is more than 1 annexure, the pagination must be consecutive until the last page of the annexures and identified by page number in the affidavit.
Example: For an affidavit with 10 annexures totalling 100 pages, the first page of the first annexure is page 1 and the last page of the last annexure is page 100. An annexure would be identified in the affidavit in the following way: ‘Annexed and marked with the letter G (pages 72‑81) is a copy of the agreement for sale’.
(5) An exhibit must:
(a) be marked with the title and number of the proceeding; and
(b) be paginated; and
(c) bear a statement signed by the person before whom the affidavit is made identifying it as the particular exhibit mentioned in the affidavit.
(6) A document annexed or exhibited to an affidavit must be served with the affidavit.
(my emphasis)
The reasoning behind this is obvious. It is a rule that is often breached. Practitioners rarely identify the annexures in the manner set out in the example. Such identification makes it easy for all parties and the Court to easily cross reference the relevant parts to the body of the affidavit and the corresponding annexure. On 8 September 2017 I had exchanges with the husband’s solicitor about his documents.
It is unhelpful when practitioners include 7 pages of interim orders. Practitioners need to focus on what interim issues are in dispute. The Court does not have the luxury of being able to afford parties time to agitate such detailed orders. When this was put to the husband’s solicitor, he replied that the number of pages is an arbitrary measure of what the parties are seeking most of those parenting orders and that most of the orders were parenting orders. That misses the point. The purpose of setting out the orders sought in an Application in a Case is to identify to the other party the interim case they have to meet and to identify to the Court the interim issues it is asked to determine. Real consideration needs to be given as to what orders can be left to the final hearing. The same applies to an affidavit and its annexures.
The parties agreed on further consent orders including attending a conciliation conference before the next return date. The orders included my standard directions for a conciliation conference and standard filing directions and adjourned the matter to the duty list on 13 November 2017 which was the date that had been given by the registry for the Application in the Case. Significantly, the parties also produced hand written consent orders, which were later engrossed, which, after providing a further parenting orders, set out the following orders 5 to 8:
(5)Otherwise all extant applications be adjourned for a contested hearing (2 hours) on 13 November 2017 at 10:00am.
(6)The parties not be permitted to rely on material filed less than 7 days prior to the next Court event.
(7)All questions of cost reserved.
(8)That the parties file and serve an outline document in relation to the issues in dispute to be dealt with on 13 November 2017.
Whilst there were inconsistencies with respect the interim consent orders and my usual directions, it is important to point out that the solicitor was the advocate who negotiated the consent orders on that day. It was clear from the amount of the time the parties thought the interim hearing may need that they anticipated substantial issues remaining in dispute.
It would be an inefficient use of scarce Court resources to allow parties to conduct multiple interim hearings because of their failure to comply with Court orders and rules. The Court is not able to afford litigants that luxury, given the pressure of the lists in circumstances where the interim issues were on foot for some months. Urgent new issues had not arisen in this case.
Clearly the purpose of the case outlines was to provide easy reference for the Court and the other party as to the issues requiring interim determination, the documents relied on, and the orders sought. The husband’s case outline consisted of two paragraphs which constituted an outline of case document in name only. With respect to parenting the outline simply says that the husband seeks parenting orders “essentially in the terms of the family report”, that the former matrimonial home be sold as neither party can afford to pay the mortgage and that the matrimonial liabilities or to be paid from the proceeds. The case outline does not contain a list of the documents to be relied on or orders sought or even reference to orders being pressed from the previously filed Application in a Case. It was compliant in name only, not in spirit.
The wife’s case outline identified the three issues requiring interim determination as being the holiday arrangements for the two children, the wife’s application for interim maintenance in the form of the husband paying the mortgage and outgoings, and the husband’s application for interim sale of the property. In addition, the wife’s case outline contains a list of the affidavits relied on in support of her application, a short chronology and a minute of the orders sought. The case outline set out lengthy parenting orders which were not addressed in submissions.
The wife filed a further affidavit by herself and an affidavit by her brother on 6 November 2017. This was in compliance with the orders that the parties consented to on the previous occasion. The husband filed and sought to rely on an affidavit filed on 10 November 2017 being the Friday before the hearing on the Monday morning. This did not comply with the consent orders, or even the standard orders, lest there was any confusion on the part of the solicitor when reading the orders. Particularly given the fact that the same solicitor appeared on the last occasion where the very issue of concern for the Court was the filing of voluminous material so close to the hearing date, it is surprising that he again disregarded the orders.
The husband’s solicitor submitted that the affidavit was merely an affidavit in reply to the wife’s affidavit filed on 6 November 2017. The orders do not provide for that. There had to be an end point to when the parties file material they wish to rely on. In much the same way the oral submissions had to be curtailed as both sides wanted to reply to every reply in a never ending cycle.
The wife’s response to the husband’s Initiating Application is that she seeks final and interim parenting and property orders. One of the final orders she seeks is that the husband transfer the former matrimonial home to her with wife to do all acts and things to discharge the mortgage. She seeks indemnity from the husband with respect to liabilities arising out of his business and seeks a $150,000 splitting order from the husband’s superannuation entitlements.
The wife annexes a letter from the husband’s employer dated (omitted) 2017 confirming that he has successfully completed his probation period and that his position has changed to full-time ongoing. His job title is now (occupation omitted). Otherwise his terms and conditions and pay remain the same.
The interim financial orders she seeks include that the husband be solely responsible for the mortgage repayments, rates, utilities, and arrears. She also seeks that the husband pay all amounts outstanding to Mr P, (omitted), and arrears in school and kindergarten fees. She also seeks disclosure documents.
In her affidavit sworn and filed on 30 June 2017 the wife addresses parenting and financial issues.
At the beginning of the hearing the husband’s solicitor seemed confused as to which applications were before the Court. This is despite the fact that the previous orders made it clear that both parties intended to agitate their competing issues. He also claimed that the matter was adjourned from the September listing because the Court did not have time and not because of late filing of material.
The wife’s counsel objected to the husband being allowed to rely on the late filed affidavit filed on 10 November 2017. He argued that although the wife’s solicitor framed it as being an affidavit in response, it only did that marginally and for the most part traversed matters which have been known for some time and should have been addressed earlier. I upheld that objection. There must be consequences to the late filing of affidavits. If there are not, people will continue to breach orders. It is no answer to say it is in the interests of justice to allow an affidavit in for consideration. The opposing answer is that it is a denial of natural justice to the other party.
The husband’s solicitor then submitted that he had not submitted an affidavit earlier as the wife had not particularised her maintenance claim. That is simply incorrect. The interim orders the wife sought in her response filed on 30 June 2017 seeks that the husband pay the mortgage, rates, and utilities including arrears. He said the affidavit was a shield to the wife’s maintenance application but given that it had been filed in June, there is no reason why any responding material could not have addressed in the affidavit filed in September. Significantly, the husband did not file an amended financial statement after the wife filed her response which put maintenance in issue. This is despite the fact that when maintenance is in dispute parties are required to complete Part N of the financial statement. He said there was no order for it. As the rules make clear an order is not required. Furthermore financial statements are affidavits. Rule 24.06 of the FCC Rules requires a party to file an amended financial statement or affidavit as soon as practicable where there is a significant change in circumstances.
Counsel for the wife also objected to the husband’s affidavit on the basis that the husband claims to be meeting various expenses but has not provided disclosure documents to verify those claims. He has claimed to be making those payments since his Initiating Application. The orders made in July 2017 required the husband’s documents to be produced. In her affidavit of 6 November 2017 the wife refers to multiple requests for the production of documents. He argued that in the absence of disclosure, the wife would be significantly prejudiced by the affidavit. One of the issues in dispute in this case is the nature and extent of the husband’s debts, including what debts relate to his business and what debts are personal. There is also a dispute about whether or not the husband’s business is still trading. The wife says she has no knowledge of the business debts.
Complaints about disclosure
The husband says he has provided disclosure and complains that the wife has not.
The wife also complains in her affidavit that the husband has not complied with orders of 4 July 2017 with respect to disclosure documents to verify the expenses that he claims to have in his financial statement dated 10 May 2017. She annexes letters from her lawyers requesting disclosure dated 2 August, 7 August and 24 August 2017 and she annexes further correspondence from her lawyers about that issue. It is clear from the letters that one of the complaints the wife has is that the husband has not provided documentary evidence that his business has been wound up. She does not annexe the responses from the husband’s lawyer but it is clear that there are ongoing requests for outstanding disclosure documents.
The husband’s affidavits do not address the debts in any detail. The husband did not seek to tender any documents with respect these issues.
These are real issues that have to be tested at trial.
Financial issues
In his first affidavit prepared by his previous lawyers filed on 10 May 2017 the husband sets out various liabilities which he says are matrimonial debts. He says that the parties’ liabilities are high because in 2016 he left his employment to pursue a business venture resulting in the husband not having a stable income for nine months. The husband says the business failed and that significant debts relate to that period.
The husband’s evidence with respect to the 2016 period is inconsistent, on the one hand he says he was the primary carer of the children as he was unemployed for nine months but on the other he says he was working very hard in his business venture which ultimately failed.
The husband seeks the sale of the property immediately as he says he cannot finance the mortgage debts and other debts alone. The former matrimonial home is located at Property A. At the time of swearing that affidavit he said the mortgage was in arrears and he was concerned that the bank would foreclose on the property as neither he nor the wife could afford to pay the mortgage repayments alone and neither would be able to afford to retain the home.
The husband filed a second affidavit on the 30 June 2017. The affidavit contains two paragraphs about financial matters being that on (omitted) 2017 he was granted a permanent position as (occupation omitted) with his employer. He makes no reference to the financial arrangements but says his hours remain flexible and he is able to work from home. He also states that the mortgage repayments have been deferred until August 2017 on the wife’s application to the bank.
The wife believes that the husband remains involved with the business he established in 2016 called (business omitted). She does not believe the husband’s assertions that the company has been wound up and annexes documents to her affidavits in support of her contention. She also annexes a copy of the husband’s employment agreement with the (business omitted) dated 14 February 2017. In that letter is the husband’s base salary described as $180,000 with potential bonus of 20% of his base salary.
The wife also annexes a screenshot of the husband’s LinkedIn profile. This is difficult to read but refers to the husband being the director and co-founder at (business omitted) from (omitted) 2016 to the present being one year and one month. His position with (business omitted) is not referred to. This could indicate that he has not updated his profile. She also annexes a printout from the (business omitted)’s website. The date on the bottom of the printout indicates that was printed on 17 May 2017.
The wife says that the parties purchased the former matrimonial home in July 2014 for $693,000. They re-mortgaged the home in October 2015 to renovate the home.
The wife says in the seven month period from May 2016 the husband was not employed as he was focusing on establishing his business. It says during that period they fell behind in their payments.
The wife also says that if the husband pays the mortgage up until settlement of the proceedings, she would be in a position to retain the former matrimonial home. She says the mortgage payments are less than what rental would be in the same area for similar accommodation in order to keep the children in their current school and kindergarten. She says that she is unable to afford the rent and bond required to secure a rental property but has spoken to her brother who was willing to obtain a joint loan secured by mortgage over the property.
The wife says that some of the debts that the husband alleges are owing appear to relate to (business omitted) and says that the husband has not provided any disclosure documents to verify that the debts exist and in what amounts.
The wife filed a further affidavit on 6 November 2017. The wife says the child support she receives has been reduced from $554 a week to $126 per week after the husband sought a review of the assessment. She is undergoing the review process with the Child Support Agency currently.
The wife has obtained preapproval for refinance on the former matrimonial home with her brother Mr B for the sum of $725,000. She annexes a copy of the preapproval to her affidavit. That is sufficient to discharge the mortgage but not pay other liabilities. She is also borrowing $53,499.32 from her brother in order to meet the mortgage repayments and legal expenses. She lists other expenses that she has been paying for.
The wife again states that she wishes to retain the former matrimonial home as it is close to the children’s school and she does not have the finances to afford the expenses of removal and renting. She says that on average three bedroom house in Property A rents for about $660 a week. The mortgage repayments are approximately $600 a week.
The wife did tender the husband’s tax returns for the years ending 30 June 2017 and tax assessments for the years ending 2014, 2015 and 2016. The wife’s counsel says they show the husband receives tax refunds each year and claims various work related expenses. The husband’s solicitor says the husband has incurred capital gains tax on the sale of shares pre-separation. Somewhat extraordinarily, the husband’s solicitor queried how they could be tendered without the husband being cross-examined. He did not dispute that these were documents that the husband provided by the way of disclosure.[4]
[4] Tax returns are business records for Section 69 of the Evidence Act (Cth) 1995.
The husband has filed one financial statement on 10 May 2017. Part N is not completed as he filed it with his initiating application and maintenance was not in issue. As discussed earlier, that does not absolve him of not filing a further financial statement once the wife put maintenance in issue and his financial circumstances changed. The wife’s counsel complained that the husband’s bonuses were not reflected in his income. Given that he had only commenced his employment a couple of months previously, he may well have not earned a bonus with that employment at the time he swore his financial statement.
In the husband’s financial statement he claims to be paying $278 towards the mortgage and $350 a week in rent. He also claims to be paying $56 a week towards the rates. At the time he completed his financial statement he was paying $532 a week in Child Support. This has been reduced by $428 a week to $126 a week. He includes $112 per week for the Honda (omitted). The wife’s counsel submitted that the husband has since said that was paid out. The husband’s solicitor submitted that it is not in evidence. At question 32 he claims that his weekly expenditure is $770.00. As he has not competed Part N of his financial statement these amounts are not broken down.
The wife’s counsel points to the fact that the husband does not refer to his bonus potential nor reimbursement of expenses. To be fair to the husband, I observed he was completing the probation period of his employment when he swore his financial statement.
The wife also relied on an affidavit filed by her brother Mr B where he confirmed that he has offered to take a joint loan with her in order to refinance the home loan. He also sets out the sums he has loaned her for mortgage repayments and legal fees. She says they have agreed that he will be repaid from any property settlement.
The husband argued that the wife has a financial resource in her brother and therefore has not established that she is unable to support herself.
Conclusions with respect to maintenance and the sale of the house
The Full Court of the Family Court discussed in Strahan & Strahan [2009] FamCAFC 166 circumstances where it may be appropriate for the court to exercise power under ss.79 and 80(1)(h) at an interim stage. Boland, Thackray and O'Ryan JJ comment at [118]:
We agree with the submissions of senior counsel for the Wife in relation to the approach to be taken to the hearing of an application for an interim property settlement order. There are two stages to the hearing of such an application where the power is to be exercised pursuant to s 80(1)(h) of the Act. This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.
Further at [132]:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
This is not a situation where there is a risk of a mortgagee sale if interim orders the wife seeks are not made. If I were to find that the husband is not liable to pay maintenance to the wife or maintenance to the extent she seeks, she does have the assistance of her brother.
It would be prejudicial to the wife’s ultimate claim if the Court ordered the house to be sold before the trial. The wife has an arguable case for keeping the house as part of her final claim.
Clearly one of the arguments at the final hearing will be whether or not the debts the husband incurred for the business are matrimonial debts or not and if they are matrimonial debts, what proportions should the parties be responsible for those debts.
The husband has not provided detailed evidence of the debts and has not provided any evidence that the debts can be called on despite having ample opportunity to do so.
The husband argues that the wife’s application is unrealistic and that she is seeking to keep more than the entire pool. The wife says this is not the case as she does not accept the level of debts the husband claims and also says that the husband has significant superannuation. She further says the Court may in its discretion award the wife more of the cash assets and less of the superannuation in order to enable her to keep the home.
In considering whether or not to make a maintenance order, I must consider the provisions in ss.72, 74 and 75(2). The principles applying to maintenance applications have been discussed in several cases including Bevan & Bevan (1995) FLC 92-600 and Mitchell & Mitchell (1995) FLC 92-601. The Court has also acknowledged that the enquiries in interim applications for maintenance are different to final hearings acknowledging that the purpose of interim maintenance is to address financial support pending final proceedings.[5]
[5] See Redman & Redman (1987) FLC 91-805.
The meaning of ‘to supporting oneself adequately’ means different things in different circumstances.
I am not satisfied that the wife’s brother can be considered as a financial resource resulting in the wife being able to support herself. In this regard I am mindful of the comments of the majority of the High Court in Hall v Hall [2016] HCA 23 at [55]:
Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
In that case the factual circumstances are quite different. The wife does not have an interest in an estate or an interest as a beneficiary of a discretionary trust.
I am satisfied that the wife does not have the means to support herself adequately from her own resources.
The husband concedes he is not paying the $278 towards the mortgage and $56 towards the rates and is paying $428 less child support. These total $762. Additionally, he shows a shortfall of his income and expenses
I am satisfied that the husband has capacity to pay maintenance. The husband’s financial statement is inaccurate and he has chosen not to file an updated one. I am satisfied that the husband has capacity to pay $400 per week towards the mortgage.
The wife will continue to be responsible for the rates and the utilities. She has entered into payment plans to address arrears and the balance of the mortgage.
Parenting issues
The current interim dispute between the parents in relation to parenting is with respect to the time the husband should spend with the children, X born (omitted) 2010 and Y born (omitted) 2013 during school holidays.
As the parties funded a family report the Court has the benefit of that. All the evidence at this interim stage is untested. Both parties rely on the family report.
The wife’s case outline seeks an extensive list of parenting orders. The husband also sought extensive parenting orders in his application in a case but in his case outline he simply said that he sought parenting orders largely in accordance with the family report recommendations.
The husband’s first affidavit filed in support of his initiating application complains that the mother is alienating the children from him. The complaint is primarily based on the mother refusing to agree to overnight time and the mother denigrating him in front of friends and parents at the children’s school.
The husband seeks that the holidays be split equally on a week about arrangement. The wife says that the children have not spent more than two nights away from her and that increase to seven nights would be too much of an adjustment, especially for Y.
Both parties annex the family report of Ms R dated 31 August 2017 to their affidavits.
Ms R spoke to Ms C, a psychologist who has seen the children and parents post separation. She refers to the children as being shy and reserved but being equally comfortable and secure with each parent. The mother has some anxiety about separating from the children and Ms C cautions that if the mother is “pushed too far” she will not be able to support the children.
Ms R also spoke with X’s teacher who says X is reserved and compliant, trying to please. He is doing well at school. He has not noticed any behavioural changes in X regardless of which parent he has been with. His contacts have mainly been at school and have mainly been with the mother.
Ms R observed that the children were secure and comfortable with each parent. Significantly she recorded that both parents “spoke to the children in a positive tone and often referred to the other parent in positive and encouraging tones.” Despite the conflict between the parties which is evident in the texts annexed to their affidavits it is noteworthy that the family consultant records the parents not just being polite and respectful to each other in front of the children but talking positively to the children about the other parent in that parent’s absence. It is not common for such comments to be made in family reports and is to the credit of both parties. It is of enormous benefit to their children.
She summarises the parties’ respective positions in the conflict as the father feeling powerless in the system he believes is disadvantageous to men and that the mother is gatekeeping his time with children and that the mother feels deeply wounded by the separation and has difficulty separating herself from the children experiences distress and anxiety when they are away from any lengthy period. The mother believes that the children need stability and continuity.
This recognises the importance of stability and consistency for the children whilst also recognising the importance for the children to develop the relationship with their father. X recently turned seven and Y, at age three, is significantly younger and at a crucial stage of development such that she recommends that given Y’s maturity, this attachment to his mother should take priority with further opportunities to promote and strengthen this attachment to his father to be achieved through gradual increase in time with him. The parents agree that the siblings should not be separated. Whilst X could cope with a shared care arrangement, at this stage Y could not and Y’s needs need to take priority over X’s at this stage.
To the parties’ credit they have already adopted some of Ms R’s recommendations by agreement. The issue of controversy between them is the school holidays. Ms R does not address the school holidays in her report.
The submissions on the husband’s behalf can be summarised as being that the family report shows that they are two good parents and there are no risk concerns. An equal sharing of the holidays is a common order and is a natural progression. Both of these comments are true but do not advance matters given that the Court is required to consider what is in the best interests of X and Y in the particular circumstances of this case.
The wife’s case is that Ms R does not address holiday time in her report because Y is so young.
Conclusions with respect to parenting
The principles applying to interim parenting decisions are well known.[6]. Despite both parties filing documents seeking several pages of interim parenting orders,[7] the submissions focused on the school holiday period.
[6] See Goode & Goode [2006] FamCA 1346.
[7] In the husband’s Application in a Case and the mother’s Case Outline.
It is clear that both parents have many positives to offer the children who clearly know they are cherished by both parents. Really the factor which favours wife’s proposal for the upcoming summer school holidays is the need to go at Y’s pace. I am going to make the orders the mother seeks with respect to the summer school holidays, as discussed during the hearing. I find however that it is in the children’s best interests for there to be a gradual increase in the children’s holiday time with their father in the lead up to the final hearing in December 2018.
Neither party addressed the Court about Christmas Day arrangements although they are identified it as remaining in dispute. In her case outline, the wife proposes that the husband have the children from noon on Christmas Day to 9.00am on Boxing Day. Christmas was mentioned as remaining in dispute at the beginning of the interim hearing but nothing further was said. The husband’s case outline is silent on this. However, in his application in a case he proposes that he have the children from noon on Christmas Eve until noon on Christmas Day. In the absence of agreement I will order that the husband spend time with the children from noon on Christmas Day until noon on Boxing Day. I see no reason for it to be less than 24 hours.
I do not propose to go through the rest of the competing parenting orders given they were not addressed in submissions.
As I indicated during the hearing I will list the matter for trial on 13 and 14 December 2018.
For these reasons I will make the orders appearing at the beginning of these reasons.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 7 December 2017
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