POURDIS & POURDIS

FAMILY COURT OF AUSTRALIA

POURDIS & POURDIS

[2012] FamCA 65

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the father seeks orders that his supervised time with the children be increased to include overnight periods – where there are concerns about the father’s use of drugs – where there are allegations of domestic violence against the father – where there are concerns about the impact of a significant change in the children’s care arrangements – best interests – where the Court held that a variation to previous orders was not appropriate at this stage of the proceedings – previous orders continued.

FAMILY LAW - SPOUSAL MAINTENANCE – interim orders – application by the mother seeking spousal maintenance in the sum of $1,850 per week – where the father says that he does not have the capacity to make payment of any sum to the mother – where the father says that he does not have an income – where the mother has established a need for spousal maintenance – where the Court was not satisfied that the father has the capacity to pay spouse maintenance – application dismissed.

FAMILY LAW - PROPERTY – interim orders – application by the mother seeking orders for partial property settlement – where the father says that he does not have the capacity to make payment of any sum to the mother – where the mother would be entitled to a significant property settlement at trial – just and equitable – where the Court was satisfied that the father was able to draw upon significant assets and financial resources – orders that the father pay $100,000 to the mother by way of interim property settlement.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 75 & 79

Goode & Goode (2006) FLC 93-286
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Ms Pourdis

RESPONDENT:

Mr Pourdis

INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid

FILE NUMBER:

DNC

552

2010

DATE DELIVERED:

24 February 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video-link to Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

10 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke, QC

SOLICITOR FOR THE RESPONDENT:

Bowen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stagg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid

Orders

Within 21 days from today the father pay to the mother the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] by way of interim property settlement.
The Applications in a Case filed by the mother on 28 June 2011 and 4 July 2011 are dismissed.
The Response to Application in a Case filed on 7 July 2011 by the father is dismissed.
The question of costs reserved to the trial Judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 552 of 2010

Ms Pourdis

Applicant

And

Mr Pourdis

Respondent

REASONS FOR JUDGMENT

Introduction

The father, Mr Pourdis, seeks a variation of the interim orders concerning the times and conditions upon which he spends with the children S who was born in April 2007 and T who was born in January 2010.
The mother seeks further orders which could be described as spouse maintenance and further funds to be paid to her by way of partial property settlement.
The mother seeks orders that she receive the benefit of rental income from an apartment at K Street, Darwin and that such an order be backdated to 18 May 2011, being the date of Federal Magistrate Turner’s previous orders.
Hearing
At the hearing before me on 10 October 2011 the father was represented by Ms Pyke, QC, the mother by Ms Farmer and the Independent Children’s Lawyer by Mr Stagg.
In relation to the children’s issues the following documents are relied upon:
·    Mother’s Affidavit filed 26 November 2010 (Doc 2)
·    Mother’s Affidavit filed 6 May 2011 (Doc 18)
·    Father’s Affidavit filed 13 May 2011 (Doc 22)
·    Mother’s Affidavit filed 4 July 2011 (Doc 32)
·    Father’s Affidavit filed 7 July 2011 (Doc 35)
·    Family Report authored by Mr V dated 23 September 2011 (Doc 50)
·    Orders sought by the mother filed 27 September 2011 (Doc 55)
·    Father’s Affidavit filed 28 September 2011 (Doc 56)
·    Minutes of Orders sought by the Independent Children’s Lawyer filed 28 September 2011 (Doc 57)
·    Chronology prepared by the Independent Children’s Lawyer filed 28 September 2011 (Doc 58)
·    Orders sought by the father (Amended: Parenting Issues) filed 10 October 2011 (Doc 60)
In relation to financial issues the parties relied upon the following documents:
·    Husband’s Financial Statement filed 10 January 2011 (Doc 6)
·    Husband’s Affidavit filed 10 January 2011 (Doc 7)
·    Husband’s Affidavit filed 13 May 2011 (Doc 21)
·    Wife’s Financial Statement filed on 9 June 2011 (Doc 22)
·    Wife’s Affidavit filed 4 July 2011 (Doc 32)
·    Husband’s Affidavit filed 7 July 2011 (Doc 35)
·    Husband’s Affidavit filed 4 August 2011 (Doc 39)
·    Husband’s Financial Statement filed on 4 August 2011 (Doc 40)
·    Report of Single Expert, Mr C, contained within Affidavit filed 23 September 2011 (Doc 51)
·    Orders sought by the wife filed 27 September 2011 (Doc 55)
·    Husband’s Affidavit filed 28 September 2011 (Doc 56)
This was an interim hearing where the parties sought to rely upon the affidavit material only. Oral evidence was not given. The Court is not in a position to determine the veracity of much of the written statements of the parties and their witnesses until trial.

Background

The father was born in 1979 and is now aged 32, nearly 33. The mother was born in 1982 and is therefore aged 29, nearly 30.
The parties married in August 2005. S, the first child of the parties, was born in April 2007 and is aged four nearly five. The parties first separated in late 2009 when the mother was pregnant and expecting their second child. The parties later reconciled. T was born in January 2010 and is now aged two.
The mother alleges that following significant issues concerning the father’s mental health and drug abuse the parties separated for the last occasion on 19 August 2010.
Following the mother’s allegations of domestic violence, the police obtained on her behalf a Domestic Violence Order in August 2010 which was confirmed for six months from 17 September 2010.
In late November 2010 the mother commenced proceedings in the Federal Magistrates Court seeking spousal maintenance and property settlement orders.
In January 2011 the mother made arrangements for the paternal grandparents and the father to spend time with the children at the father’s brother’s home in Suburb B on Wednesdays, Fridays and Sunday afternoons.
The mother makes allegations about the inappropriate behaviour of the father and ongoing concerns about his drug use.
In May 2011 the father was arrested by the Northern Territory Police. He was taken from the former matrimonial home and held briefly on charges concerning possession of drugs.
On 18 May 2011, Federal Magistrate Turner made detailed Consent Orders in the property settlement proceedings by way of disclosure and injunctions.
On 18 May 2011, Federal Magistrate Turner also made Orders which provided that the children live with the mother and spend supervised time with the father each Wednesday and Friday from 4.00 pm to 6.30 pm and Sunday from 4.00 pm to 6.30 pm (including time on Father’s Day) on condition that the time the father spent with the children was to be supervised by the paternal grandparents. Other ancillary orders were also made, together with orders that the father undertake random drug testing within 24 hours of the request.
Following those orders the mother’s solicitors requested that the father undergo drug testing in May 2011 (immediately after the order was made); 2 June 2011 and 27 June 2011.
Correspondence between the solicitor for the father and solicitor for the mother appears annexed to the affidavit of the solicitor for the mother filed on 21 September 2011 which indicates that none of the drug tests were carried out in accordance with the requests made pursuant to the Court Order. By letter of 9 June 2011 the father’s solicitors advised the mother’s solicitors that “I advised my client’s instructions that he has been unable to submit to the requested by you drug tests due to being sick”.
On 15 June 2011 the father’s criminal charges in relation to possession of amphetamines were withdrawn and dismissed by the Court.
On 17 June 2011 an incident occurred during handover of the children. The father alleges that the mother stabbed him in the shoulder with her car keys hurting his arm. The mother alleges that an incident occurred whereby the father twisted the mother’s right-hand, forcing her to the ground whilst she had the young child T in her arms.
On 29 June 2011 an order was made that the children S and T be separately represented. On that date orders were also made that the father undergo random, supervised drug-testing within 24 hours of a request being made by the Independent Children’s Lawyer.
On 1 July 2011, Ms Palavra filed her Notice of Address for Service as the Independent Children’s Lawyer.
The Independent Children’s Lawyer wrote to the solicitor for the father on 5 July 2011, 3 August 2011 and the 1 September 2011 requesting that the father undergo random supervised drug-testing pursuant to the order of 29 June 2011.
The affidavit of Mr Stagg filed on 22 September 2011 indicates that no drug testing results were received in response to any of the requests made pursuant to the Family Court orders.
On 29 September 2011 orders were made by consent (as amended on 10 October 2011) which dealt with complex issues concerning the Bank of Queensland and payment of constructions costs concerning the premises at S Street, Suburb W.
Since the separation of the parties the mother has resided with her parents and younger brother (aged 22) at her parents’ home. The mother seeks to be provided with funds for her support and to enable her to live in separate accommodation.
Following upon the mother’s application for child support, an assessment was carried out in November 2010. The mother maintains that she has not received any child support from the father.
The mother maintains that there are difficulties with the arrangement whereby she lives with her parents and brother, which impact upon the care of the children and her relationship with her family.
The mother also maintains that although ordered to pay $250 per week to her as “spousal maintenance” the father has not paid the amount regularly. She sought the enforcement of payments due from the father by way of arrears of spousal maintenance.
The mother maintains that the father has significant assets and financial resources mainly connected with the business of construction. The former matrimonial home at F Street, Suburb B was valued by the single expert, M Valuers, in June 2011 at $1,000,000. The mortgage on the former matrimonial home was asserted to be $302,000. There are other substantial assets and business interests in various companies and trust entities, together with substantial bank accounts.
The mother seeks further sums by way of interim property settlement, including sufficient funds for her legal representation and related accountant fees for trial.
The father maintained that he did not have access to funds to pay the orders sought by the mother.
At the end of the hearing before the Court in early October 2011, counsel for the father advised that the father had been recharged with offences previously discontinued by the police. Counsel also said that the father was not now in possession of the $30,000 cash which the police had seized when he was initially charged.

Orders sought
(a)Children’s Issues

By the document the father filed on 10 October 2011, the father sought that the orders made on 18 May 2011 in relation to the children be discharged and replaced with the following:
“1.That the orders for parenting of the children made on 18 May 2011 be discharged and replaced with the following:
(1)That the husband shall spend time with the children as follows:
(a)from 4.30 (sic) Wednesday until 8 am Thursday, if a school day, and 5 pm if a non-school day in each week;
(b)from 4 pm Saturday until 5 pm Sunday week 1 & 2;
(c)from 4 pm Saturday until 8 am Monday week 3 until further order;
(d)time on Christmas Eve (Saturday) to be suspended by the children being returned to the mother’s care at 5 pm on Christmas Day;
(e)time on New Year’s Eve to be suspended with the children to be delivered to the father on Sunday 1.1.12 at 4 pm, to enable the mother to celebrate her name day.”
(2)The changeover to occur at the paternal grandparents’ residence at [… L Street, Suburb B] until 20.11.2011, and thereafter at [… B Street, Suburb C], or as otherwise agreed to between the father, mother, and paternal grandparents and uncle.
(3)That the time spent with the father is to be supervised by either the paternal Grandmother […] and/or paternal Grandfather […] and/or Paternal Uncle Mr A.
(4)That upon the father producing 3 negative drug testing results, the time to be spent with the children is to be unsupervised.
(5)That the mother and the father shall be at liberty to telephone the children at all reasonable times whilst the children are spending time with the other parent.
(6)That in the event that the mother is unable to care for the children, the husband shall be the first option to do so.
(7)That the father shall not use illicit substances no less than 24 hours prior to and during the time he is spending with the children.
(8)That within 7 days of the date of these orders the father shall provide the document “Should I Supervise Contact?” to each of his parents, […], and […] and his brother [Mr A], such document to be provided to the solicitor for the father by the Independent Children’s Lawyer.”
The mother opposed these orders and sought the continuation of the orders of 18 May 2011 pending the delivery of judgment following trial.
The Independent Children’s Lawyer filed proposed Minutes of Order on 28 September 2011 which proposed the following orders:
“1.Upon the father providing the Independent Children’s Lawyer with the results of a drug urinalysis testing, Order 2 of the Orders made on 18 May 2011, be discharged and substituted with the following Order:
That the father spend time with the children at [… L Street, Suburb B], as follows:-
i.from 4.30 pm Wednesday until 8.00 am Thursday and from 12.00 noon to 6.30 pm Sunday each week;
ii.upon the father providing 6 clear drug screens in response to requests for drug screening from the Independent Children’s Lawyer:
a)from 4.30pm (sic) Wednesday until 8.00 am Thursday each week;
b)for a period of 3 months, from 4.30 pm Friday until 12 noon Saturday each alternate weekend;
c)for a period of 3 months from the conclusion of the period under Order 2(ii)(b), from 4.30 pm Friday until 12.00 noon Sunday each alternate weekend;
d)from the conclusion of the period under Order 2(ii)(c) and thereafter, from 4.30 pm Friday until 6.30 pm Sunday each alternate weekend.
2. The father be restrained from consuming illicit substances 7 days prior to and during such times that the children spend time in his care.
3. Within 7 days of the date of these Orders the father shall provide the document “Should I Supervise Contact” to each of his parents, […], and […], such document to be provided to the solicitor for the father by the Independent Children’s Solicitor.

4. Within 14 days of the date of these Orders the father shall cause to be filed affidavits from his parents, [the paternal grandmother] and [the paternal grandfather], addressing the following matters:
i.confirming that they have read and considered the contents of the document “Should I Supervise Contact?”
ii.their preparedness to supervise the time the children spend with the father in accordance with these Orders.
iii.their understanding of what is required in supervising the time the children spend with the father under these Orders, including but not limited to their understanding of the following:
a)the necessity of intervening on behalf of the children if an issue or situation arises which relates to their protection from harm, whether it be emotional, physical or psychological during the course of the time with their father;
b)the necessity of being present and available during the whole period of the time with their father;
c)the necessity of not leaving the children alone in the presence of their father during the time they spend with him;
d)the necessity of being able to hear and see the interaction between the children and their father at all time;
e)how they will intervene in the event that a situation arises where they consider that the children’s safety or well being are at risk or there is a risk of physical, emotional or psychological harm to them whilst spending time with their father;
f)what action they will take should they consider that one or both children should be removed from a situation involving their father;
g)what action they should take should they become aware that the father has used illicit substances in contravention of Order 2.

5. In the event that the father provides a positive drug urinalysis result, or the father does not provide a drug urinalysis result, after being requested by the Independent Children’s Lawyer, after commencement of time under Order 1(ii), the time the children spend with the father under Order 1(ii) will be suspended until further order.
6. There be liberty to relist the matter on 48 hours notice to the other parties on issues arising from the implementation of these Orders.”

(b) Financial Issues

The mother sought the various orders made by Federal Magistrate Turner and Justice Burr continue pending the trial.
The mother also sought the following financial orders:
“2.That from the date of orders the wife be entitled to receive the benefit of all rental, currently in the sum of $550 per week, and any other income from [… K Street, Darwin], NT to the exclusion of the husband, with the wife to make arrangements with the tenant to secure receipt of the rental income.
3.That forthwith the husband pay to the wife the rental income obtained by him from [… K Street, Darwin], NT in the sum of $550 per week from the date of orders made by Federal Magistrate Turner 18 May 2011.
4.That the husband continue to meet or cause to be paid all expenses including but not limited to mortgage payments, rates, body corporate levies, utilities and maintenance relating to [… K Street, Darwin], NT.
5.That the husband forthwith cause to be electronically transferred to the wife’s Australia and New Zealand Banking Group Limited account BSB […] number […]:
(a)Fuel for motor vehicle driven by the wife                $627.20
(b)Excess for insurance claims for repairs to the
wife’s motor vehicle  $1,000.00
(c)Repairs to central locking and new key for the
wife’s motor vehicle  $448.40
(d)Arrears and additional lump sum spousal
maintenance since the orders made on 19 January
2011$7,250.00
Total$9,325.60
6.That the husband pay to the wife the sum of $1,850 per week by way of spousal maintenance (subject to order 1).
Application in a Case 28 June 2011
7.That the husband pay the wife’s costs of the application on an indemnity basis – see order 10 Justice Burr 29 June 2011.
Application in a Case 04 July 2011 (Amended on 27 September 2011)
Orders sought against the husband:
8.That the husband execute at the direction of the wife all documents including Sales Agency Agreement, Contract of Sale and Transfer of Lot and do all acts and things necessary at the direction of the wife to sell [… F Street, Suburb B] by private treaty or auction at a price to be agreed between the parties and in default of agreement at a price to be nominated by the President for the time being of the Real Estate Institute of the Northern Territory.
9.That within 7 days of the date of orders the husband vacate [… F Street, Suburb B], NT (“the former matrimonial home”) provide all keys and other access items and deliver up the former matrimonial home to the wife’s solicitors.
10.That pending sale of the former matrimonial the husband continue to meet or cause to be paid all expenses including but not limited to mortgage payments, rates, body corporate levies, utilities for the former matrimonial home.
11.That pursuant to s.106A of the Family Law Act in the event the husband fails, refuses or neglects to comply with a direction of the wife for execution of documents referred to at order 1, the registrar (sic) or a deputy registrar (sic) of the Family Court of Australia at Darwin be appointed to execute the deed or instrument in the name of the husband and do all acts and things necessary to give validity and operation to the deed or instrument and that the husband pay the costs of the wife on a solicitor/own client basis in relation to obtaining of the registrar’s (sic) signature.
12.That the proceeds from the sale of the former matrimonial home the following costs and expenses be met:
i)Mortgage to Bank of Queensland;
ii)Sales agents commission, expenses and conveyancing costs;
iii)$30,000 nett to the wife’s Australia and New Zealand Banking Group Limited account BSB […] number […] such sum to be utilised by the wife for rental of superior accommodation until final hearing;
iv)$15,000 nett to the wife’s Australia and New Zealand Banking Group Limited account BSB […] number […] such sum to be utilised by the wife for furniture and household goods;
v)$150,000 nett to Withnalls Lawyers Trust account at Bank SA BSB […] number […] for legal professional fees and disbursements including costs of an accountant for a report with respect to the husband’s wastage and extravagant use of funds post separation;
vi)Any nett balance proceeds be distributed equally between the husband and the wife.
13.That such sums referred to at order 12 i) to vi) inclusive be brought to account by the court as a partial property settlement upon final resolution of this proceeding.
14.That the wife’s nominated accountant be granted access within 7 days of any request and obtain copies of all and any invoices, general ledgers, cheque books, loan account documentation, any MYOB or QuickBook ledger entries and access to all source documents for [P Pty Ltd] income and expenditure from 01 July 2010 to date.
15.That the husband pay the wife’s costs of this application on an indemnity basis, such costs to be considered during the trial of the proceedings.”

The father sought the following orders: (Document 34).
“8.That the husband shall do all things and acts and sign all documents to assign to the wife the whole right title and in interest in respect of the motor vehicle […] Mazda […] for the wife’s sole use and benefit absolutely.
9.That upon the transfer, the wife shall be responsible for all costs associated with the said motor vehicle.
10.That the wife retain the sum of $60,000 for her sole use and benefit absolutely, being a total sum of $13,000 for taxation return and $47,000 being the money owing from her parents for the […] work done to construct the parents’ investment units, such funds to be utilised for the purpose of child support and spousal maintenance.”
By way of Reply filed on 4 August 2011 the mother opposed all of the orders save paragraph 4.
The Law
(a) Children’s issues
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains a large number of sections which apply to both final and interim orders in relation to children. In this particular matter the most relevant sections are the provisions of s 60B, s 60CA, s 60CC and s 65DAA.
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii)    to develop a positive appreciation of that culture.
Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Section 60CC(3) provides:
Section 60CC(3)
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Section 65DAA provides;
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

The procedure for interim hearings was discussed in Goode & Goode (2006) FLC 93-286. At paragraph 68 of that judgment the Full Court said:
“... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
(b) Financial issues
The provisions of s 79 and s 75 set out the main considerations in relation to interim property settlement and spouse maintenance.
The decision of the Full Court in Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 also of assists in interim spouse maintenance and partial or interim property settlement matters.
Discussion
(a) Children’s issues
The significant matters to be considered in this matter are the primary considerations. The Court must balance the benefit to the children of a meaningful relationship with both of the parents and the need to protect the children. There is considerable dispute as to the background facts which should form the basis of the decision in this matter. These background facts have not been checked by the testing of the evidence of the parties.
A significant factor also to be considered in this matter is the young ages of the children, particularly the child T.
In the documents before the Court there is some variation in the type of drug alleged to be used by the father. The mother alleges the drug use by the father is “ice”, whilst the father alleges it is “amphetamines”.
In the Family Consultant’s Report of Mr V, it is noted that the father acknowledged taking “amphetamines” as recently as a month and a half before the interview and that the father admitted at one stage using “around 3 grams of amphetamines a day”.
Paragraph 52 of the report said:
“…To place the boys in the potential situation of somehow being relied on as curative for the father would be putting too much developmentally emotional and cognitive pressure on them at their respective ages.”
The Court accepts that it is significant that none of the six requests for drug screening over an extended period were the subject of compliance by the father. The information provided to the Family Consultant and reported in the Family Report suggests that the father has informed the Family Consultant that he has reduced his high level use of amphetamines, but not ceased the use. The father’s affidavit of 28 September 2011 (document 56) suggests that he has not ceased use of the drugs but rather that he does not see it as a significant issue in his care of the children.

“9. … The wife knew that I was using drugs at that time, and I might have been under the influence of drugs when she left the children in my care. I believe that the wife left the children in my care, because she knew that I did not represent a danger to the children’s well being.

…
12. … I believe that should I spend more meaningful times (sic) with my children, I would then be able to eliminate stress in my life, and to provide negative drug testing results.”

The Court accepts that ongoing supervision by the paternal grandparents will provide some protection in a physical sense for the children if the father continues to use illicit drugs, either during or before the time he spends with the children. His ability to establish a meaningful relationship, or continue to maintain a meaningful relationship with the two young children, could be affected by ongoing drug use by the father whether or not such continued drug use actually occurs during his time with the children.
The father referred to recent drug free times, however the Court considers it of significance that the father has failed to comply with the requests by the mother’s solicitors or the Independent Children’s Lawyer for any of the drug tests.
The Court also notes that the father is now suggesting that he undergo drug testing before being permitted to have unsupervised time with the children.
In paragraph 27 of the Family Consultant’s Report, Mr V states:
“27.There was a potential domestic violence issue raised by the mother. Her account was that on one occasion towards the effective end of their marriage (it was unclear whether this was before or after their initial separation), he had “strangled” her in front of [S]. The father denied any violence. It would be highly likely that such claimed domestic violence, if it did occur in this way, emerged from “ice” usage (given the mother’s rather glowing description of the pre-ice [father]), since such rage like behaviour has been typically associated with “ice” particularly in the excessive amounts he admitted to taking at one stage of his life.
28.Continued usage of “ice” or “amphetamines” by the father, especially if it were to intensify, could open up the possibility of further rage like violence, perhaps directed towards the children on occasion. Even once would constitute grave risk. The father claimed the mother once “made up a story” about him pushing her onto the floor and standing over her – apparently witnesses (he did not name them) did not agree with her version of events. The father argued he would not be needing to use amphetamines in the near future.”
The Court is not able to determine at this stage the dispute between the parties about the recent altercations in the presence of the children’s handover, nor the basis of the allegations of inappropriate behaviour of the father when communicating with the mother.
The allegations of the mother are however of such a nature as to bring about the need to exercise caution when considering what is in the best interests of the children on this interim basis before the significant issues can be determined by the Court.
Paragraph 50 of the Family Report of Mr V said:
“…The father I engaged at interview could be someone who might interact rather more inappropriately with the children unsupervised, if only for his acutely negative commentary and bitter emotional state regarding the mother.”
The proposed increase of the time the father spends with the children to include significant periods overnight raises substantial and significant issues concerning the father’s capacity to provide appropriate care for the children which cannot be determined on an interim basis.
The effect of the orders sought and the separation of the children, in particular, the young child T, spending overnight time away from the mother are significant. T has not lived in the household of the father overnight since he was six months old. He is now at a developmental age where separation from his mother into the overnight care of his father or paternal grandparents, is likely to be a significant change. Again, such determination of the impact of this change is one that cannot be made based on the untested documentary material before the Court.
Taking into account all of the factors raised by each of the parties and the Independent Children’s Lawyer the Court is not able to determine that the orders sought by the father are in the best interests of the children at this stage.
The orders reached by consent of the parties in May 2011, providing for the father to spend supervised time with the children should continue pending the Court’s ability to determine the issues after testing all of the relevant evidence.

(b) Financial issues

The mother sought spouse maintenance by way of interim order of $1,850 per week or $1,300 per week should she be granted the order she sought in relation to the rental income of the K Street, Darwin property ($550) being paid to her. She also sought orders by way of enforcement of the spouse maintenance order made on 19 January 2011. At that time the arrears outstanding were in excess of $9,000.

The father maintained that he did not have the capacity to make payment of any sum to the mother. He maintained in the Financial Statements and Affidavits filed by him that he did not have an income. He maintained that he was totally reliant upon his father to pay all his expenses.
There is a dispute between the parties about the practicality of the mother and the children continuing to reside with her parents and other family members.
There is also dispute about the access the father has to assets, income and financial resources.
In response to the father’s assertion that he had no capacity to pay any amount to the mother, counsel for the mother referred to a significant number of documents in relation to the father’s available funds and the use of funds. It was asserted that from the bank statements and credit card accounts of the father and various connected financial entities, the father had spent significantly large sums of money.
The mother has established a need for financial support, regardless of whether she continues to reside with her parents or move to other accommodation.
The Court was asked to draw the conclusion from these documents that the father had the capacity to pay, notwithstanding the assertion by the father that he had no capacity.
The father maintained that the rental received from the property at K Street, Darwin, was not being paid as there was an “arrangement” with the third party to offset the use of that property against construction costs.
The Court notes that the mother asserts that the father has recently obtained a motor vehicle worth approximately $96,000 without finance.
The Financial Statement filed by the father on 4 August 2011 asserts that he has no income, personal expenditure of $1,688 per week, total property of $1,048,939.40, superannuation of $61,539 but liabilities totalling $2,288,468.70 and financial resources of $2,017,500. The financial resources were described as “[Family Trust 1] trading as [P Pty Ltd]” amount “not known” and [Family Trust 2] $2,017,500.
The numerous facts to be determined by the Court in relation to the capacity to pay make it difficult for the Court to calculate on an interim basis the amount to be paid for any interim property settlement.
The Court acknowledges that the outcome will not provide the mother and the children with full financial support pending the conclusion of the financial proceedings. One of factors to be taken into account in the overall determination of financial issues will be the support provided by each of the parties for the necessary maintenance of the parties and the children both before and since the proceedings have commenced.
The Orders of Federal Magistrate Turner and Justice Burr continue save as previously amended.
All of the factors, particularly her future need, suggest the mother will be entitled to a significant property settlement.
However the evidence presented at this interim stage does not permit the Court to make the necessary finding that the father has the capacity to pay spouse maintenance.
The large sums of money moving from the accounts operated by the father, his control of significant assets and his substantial financial resources are sufficient to establish a capacity to pay a sum to the mother. (The purchase of an expensive car assists in that determination).
Considering all of the factors in s 79 and s 75 an interim property settlement of $100,000 paid within 21 days is a just and equitable order.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 February 2012.

Associate:

Date: 24 February 2012

[2012] FamCA 65

24 February 2012

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