Oakley and Salmon

[2008] FamCA 322

FAMILY COURT OF AUSTRALIA

OAKLEY & SALMON [2008] FamCA 322

FAMILY LAW – CHILDREN – Children and parenting interim issues

Family Law Act 1975 (Cth)

APPLICANT: MS OAKLEY

RESPONDENT: MR SALMON

FILE NUMBER: MLF 1331 of 2006

DATE DELIVERED: 5 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS ELLERAY

SOLICITOR FOR THE APPLICANT: HENAGHAN McLEAN

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the husband and wife and each of the children of the marriage are forthwith to confer with Mr A, Family Court Consultant for the purposes of the preparation of a report pursuant to s11F of the Family Law Act 1975.

2. THAT the further hearing of this matter and the preparation of the report be prepared pursuant to the Children’s Cases Program.

3. THAT in the preparation of his report Mr A have due and proper regard to all matters in the best interests of the children but in particular consider:

   (a)         their wishes;

   (b)         the regularity of travel to and from Singapore;

   (c)whether the children can or should now or at what future date be able to travel unaccompanied by their mother;

   (d)any other restrictions on the travel of the children from Singapore and all related security issues as to their return to Australia;

   (e)other specific matters that both parents may raise in conference.

4. THAT within ten (10) days the husband make, file and serve a substantial affidavit on all children, property and financial issues, both in response to the affidavit of the wife filed 1 May 2008 and otherwise as to ensure all of his facts and circumstances to be relied upon are properly before the Court.

5. THAT if there is any proper reason why the matter is not ready to proceed for a defended hearing before Young J on 23 June 2008 both parties are to notify the associate to Young J in writing and to advise the other at least seven (7) days prior to the hearing date.

6. THAT a telephone mention be otherwise organised in the week preceding the hearing date with both parties and their legal representative (where applicable) to be present.

7. THAT seven (7) days prior to trial both parties are to make, file and serve:

   (a)an updated and specific statement of all orders sought on children, property and financial issues;

   (b)a one (1) page statement of assets and liabilities;

   (c)a list of witnesses to be relied upon and those that are required for cross examination.

8. THAT at all times the husband is to keep the wife advised in writing of his residential and work address, telephone number and e-mail address.

9. THAT proper notice is to be given to the trustee of the husband’s superannuation fund (BT Australia) of any orders sought in these proceedings.

10. THAT all service upon the husband is to be effected by prepaid post to his residential address for service as provided to the Court in his Form 8 document this day.

11. THAT all service of documents by the husband upon the wife’s solicitor is to be forwarded by prepaid post to their address.

IT IS NOTED:

A.       THAT the former matrimonial home is agreed in value at $650,000.

B.THAT there is a dispute as to the value of the Volkswagon Polo motor vehicle where the wife alleges $5,000 and the husband alleges $8,000.

C.THAT the subpoenaed documents from Westpac and National Australia Bank be released to each of the parties or their legal practitioners this day for inspection purposes.

D.THAT the husband this day produced in Court a large black folder containing what he said is to be all relevant financial, property and income documents and that is now available to the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1331 of 2006

MS OAKLEY

Applicant

And

MR SALMON

Respondent

REASONS FOR JUDGMENT

1. The current operative is the order of Guest J of 17 October 2006.  Pursuant to that interim order the children live with the wife.  The wife lives in Melbourne.  The children are to remain in Melbourne.  Melbourne is to be their long‑term domicile and the wife is to effectively be the live-with parent.  There is to be an agreed shared parental arrangement in terms of orders now before the Court.

2. In the current arrangement, the children are entitled to travel to Singapore for holidays on the first and third term holidays, that is, in April and September and half the Christmas holidays.  There is no travel mid year.  Under the current order the husband pays and the wife travels with the children.  The children are 12 and almost 9. 

3. The essence of the dispute is that the children do remain living with the wife in Australia but the husband wants a period in each of the three term holidays and half of Christmas.  He wants the children to travel alone on a direct flight Melbourne to Singapore, the wife to put them on the plane, he meet them at Singapore.  The wife opposes that because she says it is too early and the children would not handle the flight and presumably it is too much responsibility for the 12-year-old to care for the 9-year-old.  The husband says they can do it and there is a significant cost issue because he claims to earn a modest salary and cannot afford to fund the wife to fly to Singapore, whereafter she then uses that as a base to travel the world.  Whether she does or does not, I am not going to investigate.

4. I have highlighted that there is currently little commonsense and both these parties have to open their eyes and stop trying to put their own position forward and look at the children's position.  The issues that Mr A, Family Consultant, is being asked to consider include:

   (1)the wishes of the children, and that is relevant both as to the time to be spent in Singapore and the mode of travel;

   (2)the regularity of travel to Singapore, should it be four times a year or three times a year or, in her optimal situation, the wife might say none, although that is somewhat unrealistic, given the current interim orders that have been running for 18 months.  

5. I have said to the parties with no pre-judgment that probably there should be a period in Australia where the children can enjoy term holidays with their friends from school and if it were left to me, I would be thinking it would be September because it is closest to exams, as the children head towards the competitive end of their education.  The father can come to Australia a couple of times a year to see the children and I would be more inclined to restructure the current orders, but that is a very preliminary view.  It does not disqualify me.  I have still got an open mind because I do not understand the children's perspective and have not heard the evidence.

6. There is no independent children's lawyer and there will not be for financial and other reasons.  The wife is funding her own case and finances are a critical issue.  The husband has dispensed with his lawyers because of finances and now appears for himself. 

7. The other issue that Mr A will learn from the children is their level of enjoyment in Singapore, what they do and how they spend their time in Singapore. 

8. It does seem from the wife's complaints that when they are there, they are second-class citizens.  They spend time with the husband and his girlfriends or sit in the office while the husband works and she claims they have a miserable time.  The husband's position is directly the opposite and that he is out and about with the children, giving them full‑time care, love, attention and travelling. 

9. An issue that the court will have to decide and Mr A might touch upon is when the children are in Singapore, should they be permitted to holiday nearby, ie, to go to Bali or to go to Kota Kinabalu or Malaysia or wherever; in other words, to be restricted to Singapore or to move around subject to safety and all the issues.

10. That underlines the bigger question of security.  Whilst they have always been returned from Singapore, the wife has a fear that one day the husband might “just do a runner” and how we deal with that, what security there is, because there is no other asset in Australia of the husband's other than the superannuation and/or his equity in the home which he is forgoing on one view, subject to a payment of $80,000 on the other view.  So the children's issues seem to be what are their wishes and are they relevant, how often in Singapore, what do they do in Singapore, do they travel alone with each other to Singapore and can Singapore be a base for some travel.  Overall what is in their best interests.

11. There is a current injunction that the husband is not to obtain a British passport for the children as they would be entitled to because of his nationality.  In the short term, these children do not need a British passport and when they are 18, they can get one themselves and there is probably a real benefit for them having one, but in the interim, whether they need it or not is somewhat of a side issue because they can travel on their Australian passport without disadvantage.  It is not as if they are looking to work in an EC country at the moment.  There may be other issues.  The father can raise that with Mr A.

12. The real issue is this is an 11F report but it is going to be a report to the court.  Mr A needs to know that some years ago, a psychologist, Mr B, did a report.  It is on the file.  It is largely out of date.  I have said for practical reasons I am not going to order an updated report of Mr B.  The old report can be read but it has been overtaken by events.

13. This case is listed for hearing before me on 23 June 2008. Whether it is ready, I do not know. There is much to be done on finances, but on children, there will be an interim report. Now, the debate this morning in Mr A’s absence has been the parents are here, the father has flown from Singapore, he flies out tomorrow; can the children be brought in to meet Mr A this afternoon? That entirely depends on Mr A’s timetable because that has not been arranged. I have said if available, the children should come from their school immediately because the views of a 12-year-old are likely to be relevant but not overpowering. What I am hoping to get is a balanced report that really considers these issues of travel and timetable but it has to be in the context of what has been occurring and long term, what is in their best interests. It really is, without any external visits, a mini report on those issues, so it is probably more than I would normally request in a section 11F consultative-type report because of the father, the travel, and he now being in Melbourne.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: