Reinhard & Reinhard
[2023] FedCFamC1F 267
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reinhard & Reinhard [2023] FedCFamC1F 267
File number(s): SYC 6649 of 2019 Judgment of: ALTOBELLI J Date of judgment: 13 April 2023 Catchwords: FAMILY LAW – PARENTING – Where the father seeks unsupervised time – Where the father seeks suspension of hair follicle testing – Where the father has previous drug and alcohol issues – Where there is a risk of harm to the child – Application dismissed.
FAMILY LAW – PROPERTY – Where both parties seek a partial property settlement – Where the wife seeks for the father’s child support debt to be deducted from the partial property settlement – Where this issue is to be postponed to the final hearing – Interim property order made for each party to receive $200,000.
Legislation: Family Law Act 1975 ss 60B, 60CA, 60CC, 61DA, 65DAA, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 11 April 2023 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Buckley Lawyers Solicitor for the Respondent: Southern Waters Legal Solicitor for the Independent Children's Lawyer: Christina Lam Associates ORDERS
SYC 6649 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR REINHARD
Applicant
AND: MS REINHARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
13 APRIL 2023
THE COURT ORDERS THAT:
1.Within seven days of these orders, the Applicant father (“the father”) and the Respondent mother (“the mother”) are each to receive $200,000 from funds held in the Southern Waters Legal Trust Account.
2.The father’s Application in a Proceeding filed on 22 December 2022 is otherwise dismissed.
3.The mother’s costs are reserved to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reinhard & Reinhard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
INTRODUCTION
There are two issues before the Court: one is financial, and the other relates to parenting. The matter came before the Court on Tuesday, 11 April 2023. The father was the applicant (“the father”), and he was represented by Miss Kennedy of counsel. The mother was the respondent (“the mother”), and she was represented by her solicitor, Ms Tilt. The Independent Children's Lawyer, Ms Lau, appeared for the child. The matter is listed for final hearing before me commencing on 17 July 2023.
THE MATERIAL BEFORE THE COURT
In support of his case, the father relied upon:
(a)Application in a Proceeding filed 22 December 2022;
(b)His affidavit filed 22 December 2022; and
(c)Financial Statement filed 22 December 2022.
In support of her case, the mother relied upon:
(a)Response to Application in a Proceeding filed 3 April 2023;
(b)Her affidavit filed 3 April 2023; and
In support of their case the Independent Children’s Lawyer relied upon:
(a)Outline of Case Document filed 8 April 2023; and
(b)Single Expert Report of Ms D dated 8 October 2021.
THE APPLICABLE LAW
Property
The division of property is dealt with in s 79 of the Family Law Act 1975 (Cth) (“the Act”) and the principles regarding interim property orders are outlined in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”).
Firstly, there must be circumstances which enliven the power to make an interim order. There need not be “compelling circumstances” for the exercise of discretion – an interim order may be made if it would be “appropriate”, with the “overarching consideration” being the interests of justice. The Full Court in Strahan said at [132]:
[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.
Secondly, the Court must have regard to the relevant matter in s 79 of the Act. This second stage necessarily involves a brief and limited consideration. The Full Court in Strahan said at [135]–[139]:
[135]In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.
[137]Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
[138]The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
[139]We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
It must always be borne in mind that the outcome of property settlement at final hearing should not be compromised by an interim property order. The remaining property either needs to be adequate enough to meet the legitimate expectations of both parties at the final hearing, or the interim property order needs to be capable of being reversed or adjusted it if is subsequently considered necessary to do so.
Parenting
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
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.
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;
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.
(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.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
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).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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 separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
DISCUSSION
Property
The financial issue is an interim property settlement. Both parties agreed that there should be a partial property settlement of $200,000 paid to each party. The only issue relates to a debt which the father owed to the Child Support Agency of $42,708.86. This was deducted by the Child Support Agency from funds held in trust for both parties. The mother proposes that this amount be deducted from the funds, so that he only receives $157,291.14. Apparently, the father is now contesting the child support debt.
I see no reason at this juncture to deal with this child support issue. Nothing was said to me on behalf of the mother that convinces me that I should make an adjustment on an interim basis when that decision could be easily reversed at a final hearing, after all the evidence is presented and tested. Conversely, I see no disadvantage to the mother in postponing any such decision until all the evidence is before the Court. It seems as if there are more than adequate funds available out of which any adjustment for contended debts can be made. An order will be made to the effect that the mother and father receive $200,000 by way of the interim property order.
Parenting
The parenting case is about the child, X, born 2013 (“the child”), who is now 10 years old. The child currently lives with the mother and spends six nights per fortnight with the father during the school term and then during school holidays. The child’s time is supervised by the paternal grandparents.
The mother, the father and the Independent Children's Lawyer agreed, by consent, that the father undertake random Carbohydrate Deficient Transferrin testing (“CDT testing”) at the request of the Independent Children's Lawyer. The concern was about abuse of alcohol, and that arose out of a low range drink driving charge last year, the circumstances of which remain contentious. To the father’s credit, provided he complies with this order, he consented to an order which demonstrates a level of insight into the concerns of both the mother, and the Independent Children's Lawyer, arising out of the incident in question.
The father's time with the child has been supervised by the paternal grandparents since late 2020 and there is every indication that this time for the child has been both safe and enormously satisfying, probably for both of them.
The father proposes significant changes to the current arrangements: firstly, that the requirement for his hair follicle testing be suspended and replaced, as suggested by the Independent Children's Lawyer, with the random urinalysis. Secondly, he proposes that his time with the child forthwith becomes unsupervised. The mother opposes both proposals. The Independent Children's Lawyer agrees that hair follicle testing should be suspended, but replaced with random urinalysis. The Independent Children’s Lawyer does not support the lifting of supervision by the paternal grandparents.
The issue is assessing the risk of harm to the child arising out of, at the very least, his father's past drug and alcohol issues.
Ms D has prepared a single joint expert report dated 8 October 2021, but the parties have agreed that this is to be updated, and interviews are scheduled for May.
Whilst Ms D did in her first report recommend a progression in the child’s time with the father, it was conditional on the father doing certain things that he has not done, particularly in terms of compliance with drug testing. To be frank, the impression created is that the father complied with the drug testing orders when it suited him but now, having completed a series of negative tests (again on his own terms) he contends there is no risk of harm to the child arising out of his drug use.
There is no issue that the child has a meaningful relationship with the father and none of the proposals will disturb that on an interim basis.
The real issue, as I have foreshadowed, is risk of harm. On behalf of the mother it was contended that the father did not comply with hair follicle testing for a period of almost 18 months between late 2020 and mid-2022. The father, through his counsel, did not cavil with this. More recent allegations about alcohol abuse have arisen.
The Court accepts the Independent Children's Lawyer's submissions to the effect that it should adopt a cautious approach given the untested evidence in relation to drug and alcohol abuse.
Of concern to the Court is not just the father's attitude in selective compliance with orders for drug testing, but the inconsistent results that were derived in the period in mid-2020 when, on the one hand, urinalysis results were negative, but on the other hand, a subsequent hair follicle test undertaken proximately to the urine tests indicated illicit drug usage. The Court accepts the submission made on behalf of the mother that, in effect, this casts doubt on the effectiveness of urinalysis testing in the circumstances of this case.
ORDERS
The interim property orders having been made, the father now has a fund of $200,000 available to him, which, even on his evidence, is not all needed to pay for the costs of the imminent hearing. To the extent, therefore, that the cost of hair follicle testing was one reason he advanced in support of his application, it is no longer a valid one.
Given that the relationship between the child and the father is such a meaningful one, even in the circumstances of supervision, the risk considerations prevail and contra-indicate both the removal of the need for supervision, and the suspension of hair follicle testing.
Another reason why the Court considers these orders to be in the child’s best interests is the lack of evidence in the father's case about exactly how, and where, he would care for the child whilst spending time with him, noting that the time includes overnight time.
The orders proposed by the father will be dismissed and the matter stood over to the final hearing. The interim property orders in the sum of $200,000 to each party will be made.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 13 April 2023
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