RUSHBROOKE & BAUMANN - [2015] FamCA 749

FAMILY COURT OF AUSTRALIA

RUSHBROOKE & BAUMANN

[2015] FamCA 749

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the parties and their three children have been living under one roof in a failed “nesting” arrangement – Where there is high conflict between the parties – Where the eldest son and the wife also have a difficult relationship and the child now lives with the paternal grandparents – Assessment of risk – Best interests of the children – Section 60CC considerations – Orders made for the eldest son to live with the husband – Orders made for the other two children to live with the wife – Appointment of an Independent Children’s Lawyer.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where each party seeks exclusive occupation of the former matrimonial home – Where the wife also seeks lump sum spousal maintenance and a partial property settlement – Where the Court finds the parenting orders made make it appropriate for the wife to have exclusive occupation – Where the Court finds the husband has the capacity to pay periodic spousal maintenance – Where a partial property settlement can be accommodated at final hearing and such an order is in the interests of justice – Orders made.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 72, 74, 75(2), 79, 80

Cowling & Cowling (1998) FLC 92-801
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Grenfell & Grenfell [2010] FamCA 1078
McCrossen & McCrossen (2006) FLC 93-283
Mitchell & Mitchell (1995) FLC 92-601
MRR & GR (2010) FLC 93-424
Sresbodan & Sresbodan and Ors [2013] FamCA 480
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
T & N (2003) FLC 93-172

APPLICANT:

Ms Rushbrooke

RESPONDENT:

Mr Baumann

FILE NUMBER:

SYC

2032

2015

DATE DELIVERED:

10 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

04 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THERESPONDENT:

Uther Webster & Evans

Orders

That pending further order:

Property

The wife is granted the right to occupy the former matrimonial home being the property at B Street, Suburb C, New South Wales (“the Suburb C Property”) to the exclusion of the husband and the husband is restrained from entering into, or remaining upon, the Suburb C Property.
The husband is restrained from approaching within one hundred (100) metres of the Suburb C property except for the purposes of effecting a changeover of the children of the marriage, D born … 2005 (“D”), E born … 2005 (E”) and F born … 2010 (“F”) from the care of the husband to the care of the wife or from the care of the wife to the care of the husband.
The husband continue to pay, as and when they fall due, all outgoings with respect to the Suburb C Property including but not limited to:
(a)       Electricity;
(b)       Water rates;
(c)       Council rates;
(d)       Gas; and
(e)       Home and contents insurance.
The husband pay to the wife, by direct transfer into the wife’s bank account, the amount of $475 per week with the first amount to be paid within seven (7) days of these orders.
Within 28 days of the date of these Orders, the husband pay to the wife, by transfer direct to the wife’s bank account, the amount of $250 000 by way of interim property settlement.

Parenting

The child, D, is to live with the husband and spend time with the wife as agreed by the parties in accordance with the recommendation of Dr G, or any other counsellor appointed jointly by the parties:
The children, E and F, are to live with the wife and spend time with the husband as follows:
(a) Until such time as the husband acquires suitable accommodation which can appropriately house the children:
(i)from the conclusion of school (or 3:30 PM in the event that such day is not a school day) until 7:30 PM on Wednesday, Thursday and Friday; and
(ii)from 8:30 AM until 3:30 PM on Saturday.
(b)Upon the husband obtaining suitable accommodation:
(i)each week, from after school on Wednesday until 12 noon on the following Saturday.
Following the husband’s time with E and F as set out in Order 7 above, the husband is to deliver E and F to the Suburb C Property at the conclusion of the husband’s time with them and the wife is to have such person or persons as she deems appropriate to be present at the changeover to collect the children from the husband.
Provided that the husband has suitable accommodation which can appropriately house the children, E and F are to spend time with the husband during school holidays as follows:
(a)during the 2015 September/October school holiday period, from the conclusion of school on 18 September until 12 midday on 28 September.
(b) during the 2015/2016 Christmas school holiday period:
(i)from the conclusion of school on 15 December until 27 December 2015; and
(ii)from 7 January 2016 until 19 January 2016.
In the event the children’s, E and F, birthdays fall on a day when they are not otherwise spending time with the husband, E and F are to spend time with the husband from 12.00pm to 5.00pm on their respective birthdays, if the children’s birthdays occur on a weekend, and otherwise they are to spend time with the husband from after school to 6.00, if the children’s birthdays occur on a weekday.
In the event the children’s, E and F, birthdays fall on a day they are not otherwise living with the wife, the children are to spend time with the wife from 12.00pm to 5.00, if the children’s birthdays occur on a weekend, and otherwise from after school to 6.00, if the children’s birthdays occur on a weekday.
In the event Mother’s Day falls on a day when E and F are not otherwise living with the wife, they are to spend time with the wife from 12.00pm to 5.00pm on Mother’s Day.
In the event Father’s Day falls on a day when E and F are not otherwise spending time with the husband, they are to spend time with the husband from 12.00pm to 5.00pm on Father’s Day.
Unless otherwise agreed, the parties are to do all acts and things necessary to facilitate the attendance by the child, D, upon Dr G, or any other counsellor appointed jointly by the parties.
The cost of D’s attendance upon Dr G, or any other counsellor appointed jointly by the parties, is to be borne equally by the parties.
Unless otherwise agreed between the parties in writing, the children’s passports are to be held at the husband’s solicitors’ office.
Unless otherwise agreed in writing, provided that at least twenty-one (21) days written notice is given to the other party, either party is at liberty to take the children on an overseas holiday during school holiday periods when the children are in their respective care and provided that the travel does not interfere with the time those children are to be with the other parent.
Further to the Orders made by Senior Registrar Campbell on 24 June 2015, the parties are restrained from doing or saying anything to the children or permitting any other person to do the same in the presence or hearing of the children that is in any way derogatory of the children’s grandparents or detrimental to the relationship the children’s grandparents have with the children, either directly or by telephone or by FaceTime or by any other communications means.
Notwithstanding the parenting arrangements provided for in these Orders, each party is at liberty to attend the children’s sporting and extracurricular activities provided that they do not attend with a person who is not a relative of the children.
Pursuant to s 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.
The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET within fourteen (14) days all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rushbrooke & Baumann 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 SYDNEY

FILE NUMBER: SYC 2032 of 2015

Ms Rushbrooke

Applicant

And

Mr Baumann

Respondent

REASONS FOR JUDGMENT

Introduction

For approximately seven years, the parties to the proceedings and their children have been living under the one roof in an environment of marital discord that their ten year old son, D, has aptly described as "hell". This has had a significant impact on the parties and their children including, most profoundly, D. The impact on D, in particular, is such that the parties are in agreement that this matter is an appropriate case for expedition to finalise parenting issues as soon as possible. The Court agrees and the matter has been set down for a final hearing in respect to parenting matters commencing on 29 February 2016.
The parties are in agreement that they should live separately and apart. Accordingly, the main task before the Court is to consider the Amended Application in a Case filed on behalf of the wife for exclusive occupancy of the former matrimonial home situated at Suburb C. The primary question is which party should have that exclusive occupancy and what arrangements should consequently be made in respect to the children as a result of that issue being determined.
The other matters before the Court concern the wife's application for payment of lump sum spousal maintenance and also for the payment of an amount of $250 000 by way of partial property settlement in respect to the wife's past and anticipated legal costs.
In the context of this interim application, orders will be made for the wife to have exclusive occupancy of the former matrimonial home. The primary reason for that order is that it results in the least disruption to the children’s current living arrangements, pending more detailed consideration of all relevant issues.
It has also been determined that it is appropriate for the husband to make periodic payments to the mother in respect to spousal maintenance as well as a lump sum payment, by way of a partial property distribution, in respect to anticipated legal fees.

Background

The husband is 46 years old having been born in Country H in 1969. The wife is 42 years old having been born in Australia in 1972. They have three children, a son, D, and daughter, E, who were born in 2005 and a younger son, F, born in 2010.
The parties were each well represented by experienced senior counsel who were able to propose a joint chronology which, noting some areas of disagreement, was as follows:
·The parties first met in November 2001 and commenced cohabitation in March 2003. They were married in 2003.
·On 2 May 2005, the parties purchased the former matrimonial home for the amount of $3.15 million.
·On 16 May 2005, the husband sold a property acquired by him prior to cohabitation, located at Suburb I, for the sum of $1.3 million.
·In April 2005, the husband received a gift from his father of $1.9 million
·In 2007/2008, initial signs of marital discord arose with the parties seeking independent legal advice at about this time.
·The parties separated on 16 September 2014.
·On 14 November 2014, the parties commenced an arrangement known as "nesting" in relation to the care of their children. This involved an arrangement whereby the parties shared parental responsibility for the children while living under the one roof but individually cared for the children and attended to their needs between 6 pm and 9 pm on alternative nights in the former matrimonial home.
·On 1 April 2015, the husband filed an Initiating Application seeking final parenting and property orders.
·On 8 May 2015, the wife filed a Response to the Initiating Application.
·On 11 May 2015, the wife filed an Application in a Case seeking interim parenting orders.
·On 12 May 2015, the wife filed an Amended Application in a Case seeking the same orders but applying for the matter to be heard on short notice.
·On 12 May 2015, the wife filed a Notice of Child Abuse, Family Violence or Risk of Family Violence – Form 4 (“Notice of Child Abuse”). The wife also asserts that this was the date that the husband commenced sleeping outside of the former matrimonial home but the husband does not agree with this assertion.
·On 15 May 2015, the wife telephoned the police to report that her mobile phone was missing.
·On 16 May 2015, an application for an Apprehended Violence Order was made by the police and the application was listed for mention before the Local Court on 21 May 2015. At the first mention date, the application was adjourned to 25 June 2015.
·On 19 June 2015, the husband filed a Response to the wife's Amended Application in a Case. The husband also filed a Notice of Child Abuse.
·On 22 June 2015, Dr G, who had been engaged by the parties to assist D regarding his attachments and insecurity issues, advised that it was in the interests of D that the parents live separately and apart.
·On 24 June 2015, in proceedings before Senior Registrar Campbell, the parties agreed to interim parenting orders and injunctions, including the appointment of Dr J as a single expert in the parenting proceedings.
·On 25 June 2015, the husband agreed, without admissions, to an interim Apprehended Violence Order. The husband asserted that it was at this point in time that he commenced staying away from the former matrimonial home, given the interim Apprehended Violence Order and his concerns regarding the impact of family conflict upon the children.
·The husband asserted that D also commenced staying away from the former matrimonial home at this time and commenced staying overnight at the parental grandparents’ home. The wife did not agree with this assertion, although she acknowledged that D is now staying with the paternal grandparents.
·On 22 July 2015 the interim Apprehended Violence Order was revoked.
·On 31 July 2015 the wife filed a Further Amended Application in a Case.

The Approach of the Court

Both parties were in agreement that, in considering this application for interim orders concerning children, the Court should be guided by the principles set out by the Full Court in Goode & Goode (2006) FLC 93-286. At [81]-[82] under the subheading "How should interim proceedings be conducted?", the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
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.

Competing Proposals of the Parties

The Further Amended Application in a Case relied upon by the wife sought orders to the following effect:
(1)Until further order, the wife have the right to exclusively occupy the former matrimonial home.
(2)The husband be restrained from approaching within 100 metres of the former matrimonial home except for the purposes of effecting a changeover of the children.
(3)The husband continue to pay all outgoings in respect to the property
(4)The husband pay to the wife the amount of $37 000 by way of lump sum spousal maintenance.
(5)The husband pay to the wife, by way of transfer direct to the wife's bank account, the amount of $250 000 by way of partial property settlement in respect to legal fees.
(6)The wife have sole parental responsibility for making decisions about major long-term issues concerning each of the children.
(7)The husband and the wife have sole parental responsibility for the day to day care, welfare and development of the children while the children are in their respective care.
(8)[D] live with the husband and spend time with the wife in accordance with Order 10.
(9)[E] and [F] live with the wife and spend time with the husband in accordance with Order 11.
(10)In each seven-day period, [D] spend time with the wife from the conclusion of school on Thursday (or 3:30 pm in the event that such day is not a school day) until 3:30 pm on the following Saturday.
(11)In each seven-day period, [E] and [F] spend time with the husband as follows:
(a)From the conclusion of school (or 3:30 pm in the event that such day is not a school day) until 7:30 pm on Wednesday, Thursday and Friday; and
(b)From 8 am until 3:30 pm on Saturday.
(12)The time [E] and [F] spend with the husband, pursuant to Order 11, be supervised and such supervision be provided by a supervision service the parties may agree upon in writing or the Court considers appropriate.
(13)That the husband meet the costs of the supervision.
(14)Following the husband's time with [E] and [F], pursuant to Order 11, the husband drop the children at the former matrimonial home with such changeover to be supervised.
The husband’s Minute of Orders sought orders to the following effect:
(1)That the proceedings be expedited.
(2)That the parties have equal shared parental responsibility for the children of the marriage.
(3)That [D] live with the husband and spend time with the wife as follows, provided only that this time is recommended by [Dr G] [or any other counsellor appointed jointly by the parties]:
(a)From after school Friday until 5 pm Sunday in week one;
(b)From after school Wednesday until before school Friday in week two;
(c)At any other or alternative time as agreed between the parties or as recommended by [Dr G] [or any other counsellor appointed jointly by the parties].
(4)That E and F live with the wife during school term as follows:
(a)in week one, from after school Monday until before school Wednesday and from after school Friday until before school Monday;
(b)in week two, from after school Wednesday until before school Friday.
(5)That [E] and [F] live with the husband at all times that they are not living with the wife, pursuant to Order 4 above.
(6)That notwithstanding the parenting arrangements provided for in Orders 4 and 5 above, each party is at liberty to attend the children's sporting and extracurricular activities.
(7)Contained a table regarding the proposed time that [E] and [F] spend with each parent.
(8)Proposed arrangements for the children to spend time with the husband during the 2015 September/October school holiday
(9)Proposed arrangements for the children to spend time with the wife during the 2015 September/October school holiday
(10)Proposed arrangements for [D] to live with the father and spend time with the mother(subject to being recommended by [Dr G]) during the 2015 September/October and also the December/January school holiday periods
(11)Proposed arrangements in respect to the children's birthdays when they live with the husband.
(12)Proposed arrangements in respect to the children's birthdays when they live with the wife.
(13)Proposed arrangements in respect to Mother's Day.
(14)Proposed arrangements in respect Father's Day.
(15)Proposed arrangements for the 2015/2016 Summer school holiday period in respect to [E] and [F].
(16)Proposed arrangements for school holiday periods commencing from 2016 in respect to [E] and [F].
(17)Proposed that the parties do all acts and things necessary to facilitate the attendance by [D] upon [Dr G] [or any other counsellor appointed jointly by the parties], unless otherwise agreed.
(18)Related to the cost of [D's] treatment.
(19)Related to holding the children's passports.
(20)Related to the possibility of the parties taking the children on overseas holidays during school holiday periods.
(21)That within twenty-one (21) days, provided that the husband complies with Order 22 below, the wife vacate the former matrimonial home.
(22)That, contemporaneously with the wife's vacation of the former matrimonial home, the husband pay to the wife the sum of $36 000, such sum to be categorised by the trial Judge.
(23)That forthwith upon the wife's vacation of the former matrimonial home, pursuant to Order 21 above, the husband be granted exclusive occupancy of the [Suburb C] property pending final orders.
(24)That the husband be restrained from transferring, encumbering or selling the [Suburb C] property pending further order.
(25)That the wife pay the husband's costs of and incidental to these proceedings.

Issues in Dispute

As noted, the parties were in agreement that it was no longer viable for both parties to reside in the former matrimonial home. The central issue to be determined in these interim proceedings is, pending final determination, which of the parties is to be granted exclusive occupancy of the former matrimonial home.
Related to the first issue is what interim parenting orders should then be made.
The husband disputed the wife's entitlement to spousal maintenance but acknowledged that, if he is granted exclusive occupancy of the former matrimonial home, the wife would require funds to enable her to obtain alternative accommodation. In that respect, senior counsel for the husband acknowledged that, if rehousing of the wife was to occur, the expenses sought by her were not unreasonable. In the event that rehousing did not occur, the husband opposed paying the wife spousal maintenance.
In respect to the wife's application for a partial property settlement to enable her to meet legal costs, senior counsel for the husband argued that any such sum should be staged over a period of time and the entirety of the anticipated costs was not required at this point in time.

Agreed or Uncontested Facts in respect to Parenting

The Court was assisted by the parties reaching agreement on the joint chronology earlier referred to. In addition, the following facts appear to be agreed or, except where noted, not contested:
a)The relationship between the parties is highly conflictual.
b)The "nesting" arrangement which has been in place since November 2014, whereby the parties have shared time with the children on alternative nights in the former matrimonial home, has been a failure.
c)The relationship between D and the wife is in an extremely difficult and even "parlous" state. The wife attributes that situation to the husband’s conduct but this is disputed by the husband.
d)The husband has been living separately from the former matrimonial home since at least 25 June 2015, although the wife claims this occurred as early as 12 May 2015.
e)In the period that the husband has been living away from the former matrimonial home D has been living with his paternal grandparents.
f)The orders initially sought in the wife’s Application in a Case filed 11 May 2015 included the following proposed orders 3 and 4:
3. Until further order, in each seven-day period the children of the marriage live with the respondent mother from 12 noon on Saturday of each week until before school on the following Wednesday morning.
4. Until further order, in each seven-day period the children of the marriage live with the applicant father from after school on Wednesday of each week until 12 noon on the following Saturday. (It was proposed that this time be supervised)
g)By correspondence dated 22 June 2015, Dr G, a child and adult psychoanalyst and consultant social worker engaged by the parties, expressed the following opinions:
…[D] presents as insecurely attached to both his parents: with his father, the insecurity takes the form of separation anxiety; and with his mother, it manifests in rejecting and hostile attitudes and behaviour towards her.
….
…I consider [D's] distress is occurring on a background of interparental conflict.
As a result, Dr G recommended ending the nesting arrangement and suggested:
... that it is in [D's] interests that his parents live in two separate homes as this might allow him to spend time with each parent without, at least in his mind, the continual threat of interparental conflict. I further suggest that, while [D], at first, needs to spend more time with his father, he needs to spend sufficient overnight time with his mother to give him time to settle in her care. The challenge in making a workable parenting arrangement for [D] is to balance his need for contact with his father with the risk of reinforcing his excessive misbeliefs about his mother which I consider is more likely if he spends insufficient time with her. I suggest a gradual step up arrangement might be helpful for [D].
h)In the period since 2008, there has been extensive email exchanges between the parties in which they have expressed concern regarding matters relating to the other party's behaviour.
i)It was acknowledged that the husband has, on occasions, recorded the conduct of the wife by video and tape recording, although the nature and content is disputed. In that respect, in an email sent to the wife by the husband on 28 December 2014 the husband wrote, under the subject heading "Re: taping and recording":
I actually haven't taped anything for ages, but I have been finding that when I mention that I am recording your behaviour has been much better and your anger and viciousness much reduced. So your fear that you are being taped is actually keeping you in check to a degree, which I think is definitely in the kids best interests - which is my main concern at the moment.
Now please stop barraging me with threatening and aggressive messages all the time.[1](Emphasis added)
[1]Affidavit of the wife filed 11 May 2015 at Annexure "N".
j)The parties also acknowledged that D telephoned the ‘Kids Helpline’ on 19 April 2015. The contact record reports D expressing concern regarding his relationship with his mother but significantly records that "[D] said twice through the call that he had thought about suicide and jumping out of a window to get away from it".
k)The parties further acknowledged that on 19 April 2015 D telephoned the New South Wales Department of Family and Community Services. The contact record again notes D's concern regarding his relationship with his mother and also his maternal grandparents as well as the ongoing marital disputation. Significantly, the report similarly notes "[D] (9) display symptoms of persistent fear, reports he wants to kill himself and has thought of jumping out of a window".
l)The current parenting arrangements are that the husband spends time with E and F as follows:
(i)After school until 6 pm during the week as agreed;
(ii)From 6 pm to 9 pm every alternating night;
(iii)Time during the day on the weekend as agreed
m)On 24 June 2015, by consent, Senior Registrar Campbell made orders which included the following;
(1)Until further order, the parties be restrained from assaulting, molesting, harassing or interfering in any manner with the other party;
(2)Until further order the parties be restrained from audio recording and/or video recording the other parent including but not limited to the other party’s interactions with the children.
(3)Until further order, the parties be restrained from discussing these proceedings or the contents of any documents filed in or intended to be used in the proceedings with the children other than with leave of the court. until further order, the parties be restrained from doing or saying anything to the children or permitting any other person to do the same the presence or hearing of the children that is in any way derogatory of the other party or detrimental to the relationship the other party has with the children, either directly or by telephone or by FaceTime or by any other communications means.

Submissions

Submissions of the wife

The written and oral submissions of the wife were primarily intended to establish that there was an unacceptable risk in leaving E and F in the unsupervised care of the husband. Specifically, it was argued that the Court should make findings that the husband has engaged in inappropriate conduct, including in the presence of the children. This included the following:
·Denigrating, demeaning and disparaging the wife;
·Being controlling, aggressive, abusive and physically threatening;
·Causing D to alienate his mother, including by using offensive language and failing to intervene when similar conduct is replicated by D;
·Inappropriately discussing the proceedings with the children and encouraging them to take sides with a view to excluding or isolating the wife from the family unit. This included providing the children with electronic communication devices, on condition that the passwords not be disclosed to the wife;
·Inappropriately threatening to call the police for tactical advantage which caused distress to the children;
·Threatening suicide including making such threats in front of the children;
·Melodramatically lying in front of a reversing vehicle;
·Seeking to control and interfere with the wife's attempts to perform her parenting duties during those times she was to spend time with the children under the "nesting arrangement";
·Failing to properly engage with the wife to address issues of concern including those relating to the psychological well-being of the children and most specifically D;
·Deliberately keeping details of important engagements concerning the children from the wife and providing misleading information in respect to other events;
·Failing to properly chastise D even in circumstances where he has physically assaulted the wife;
·Visiting the former matrimonial home with his current girlfriend who advised the wife that the wife should leave the former matrimonial home to enable the husband to visit the children.

Submissions of the husband

Senior counsel on behalf of the husband argued that, in these interim proceedings, it was inappropriate for the Court to make adverse findings about his client’s conduct. Further, it was argued that there is no basis for such findings to be made. In that respect, it was argued:
·No adverse inference should be drawn against the husband because he did not engage in an issue by issue exchange with the wife's emails and correspondence sent by her solicitors. To the extent that there is any evidence as to a style of response by the husband, his emails were relatively brief and civil and they otherwise expressed the view that "your long emails are full of matters that I simply do not accept as the truth and I'm not engaging at that level".[2]
[2]Affidavit of the wife filed 11 May 2015 at Annexure “G”.
·The volume of emails sent by the wife to the husband is reflective of the communication difficulties between the parties; but otherwise the emails sent by the wife to the husband should be regarded as self-serving and being prepared with a view to anticipated litigation and cannot be elevated to evidence of the fact asserted.
·The husband's solicitors determined that it was inappropriate to engage with the wife's solicitors in respect to the minutiae of matters raised by the wife through her own solicitors. This did not reflect a lack of care on the part of the husband or a lack of desire to rectify issues of concern. The nature of the responses does not elevate the assertions made in that correspondence to evidence of facts.
·While the wife gave evidence of recordings having been made by the husband, there was no evidence before the Court regarding the subject matter of any such recordings.
·In any event, the issue of recordings had been addressed in consent orders entered into by the parties on 24 June 2015 and that issue should now be regarded as “done and dusted”.
·In these interim proceedings, it would be unsafe for the Court to rely on evidence in the nature of “cheer squad evidence” from friends and family members of either party.
·It was contrary to authority for the Court to approach this matter on the assumption that, all things being equal, it should continue the status quo on an interim basis.
·In any event there has been no "status quo" established, as result of the husband making a decision to vacate the matrimonial home just one or possibly two months previously.
·The husband's actions in taking the impetus to move out of the former matrimonial home should, instead, be regarded as entirely responsible. It was intended to and did bring about an end a situation of ongoing intense conflict between the husband and the wife and created a situation where the children feel more settled.
·The wife's Amended Application in a Case filed on 12 May 2015 reflected a more practical approach than the position currently adopted by the wife insofar as, in that application, the wife had sought orders giving significant and unsupervised time to the husband.
·While both parties agreed that the level of conflict between the parties represented a risk to the children, there is no evidence of culpability on the part of any party. Any such finding would need to be based upon expert evidence.
·Contrary to the wife’s assertions that the husband has shown disinterest in the welfare of the children, the husband has been proactively engaged in these proceedings and has put forward proposals to address the children’s best interests.
·The husband has also engaged in counselling and shown a willingness to accept the advice of professionals regarding the best interests of the children, including moving out of the former matrimonial home.
·There is no basis, therefore, for the Court to find that E and F would be at risk if they spent overnight time with the husband or that time during the day should be supervised by a stranger.
·The difficulties with the wife's proposals is that they do not address the best interests of D and, in particular, do not have regard to the desirability of maximising the time D spends with his siblings.
·For the foreseeable future, D will primarily be resident with the husband and, on the wife's current proposal, there would be only two afternoons after school per week when D would be in the company of his siblings.
·The stability of the children is best catered for if they all remain in the former matrimonial home and the wife leaves.
·The evidence suggests that E and F are more resilient and greater focus should be put on the more urgent and pressing needs of D.
·It is impractical for the husband to be forced to obtain his own rental accommodation in circumstances where the husband’s application is for a final property settlement which would result in him keeping the former matrimonial home, with a lump sum payment being made to the wife.
·The Court is entitled to have regard to three pieces of objective evidence which are:
oAn email from Ms K of L Psychology to the father dated 29 July 2015[3] which the husband argued was evidence against the “truncated restrictive proposal of the mother.”
oM Contact Report dated 3 April 2015 [4] which, it was argued, showed the husband playing a constructive role in attempting to encourage D to accompany his mother.
oN Org Client Information Management System for Client Details and Events Report dated 9 June 2015 (the helpline enquiry)[5] which showed the husband playing a constructive role in assisting the counsellor to understand the context of D’s concerns and communicating that he is attempting to alleviate some of the stress that D is subject to by indicating that “he intends to move out soon” from the former matrimonial home.

[3] Exhibit 3.

[4]Affidavit of the wife filed 11 May 2015 at Annexure “LL”.

[5] Exhibit 2.

Assessing Risk

As was observed by Moore J in T &N (2003) FLC 93-172,[6] children living in a traumatic environment caused by intense marital conflict can be at risk of suffering a range of psychological and developmental difficulties including suffering from:
[6] For other examples, see Betty & Ogienko [2012] FamCA 61 at [24]; Sampson & Marsh [2007] FamCA 1554 at [20]; Stubbs & Stubbs (No 2) [2011] FamCA 316 at [103]; Cassar & McManus [2007] FamCA 591 at [33] – [34] and Reid & Lynch (2010) FLC 93-448 at 85,099.
·significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives;
·higher levels of aggression;
·higher anxiety, more behaviour problems and lower self-esteem;
·diminished ability to regulate forms of hyper-arousal;
·numbness, emotional constriction, a low frustration threshold;
·nightmares and other sleep disturbances;
·intense and multiple fears;
·regression in developmental achievements; and
·disturbances in peer relations.
It is important to appreciate that the concept of family violence referred to by Moore J is not limited to the infliction of physical harm. Section 4AB(1) of the Act defines family violence as including conduct "that coerces or controls a member of the person's family… or causes the family member to be fearful.”
Even in interim proceedings, the Court is required to have regard to such evidence that is available concerning the potential risk to children. In that respect, in the Full Court in Deiter & Deiter [2011] FamCAFC 82, at [61], said that it is a task that "cannot be postponed until the last piece of evidence is given and tested, and the last submission is made...”[7]
[7] See also George & George [2013] FamCAFC 182 at [21] and more recently Galloway & Duke [2014] FamCA 569 at [15], Dixon & Dixon [2014] FamCA 686 at [22] and Appleby & Appleby [2015] FamCA 138 at [5].
In this case, both parties acknowledged that the children would be at risk of psychological harm if they continue to live in an environment of intense marital discord.
The husband made no allegations that the children would be exposed to physical or psychological risk at times when they are in the care of the wife. However, the wife did make such allegations in respect to times when the children would be in the care of the husband. That risk, it was argued, is that the children would be exposed to a situation where, by his actions and utterances, the husband is likely to engage in conduct that embroils the children in the marital conflict and alienates the children from their mother. The wife argued that this had occurred in respect to D and there was a risk that it would also occur in respect to E and F.
These issues will be considered in the context of matters set out in section 60CC which the Court is required to have regard to.

Limited ability to resolve controversial factual issues

It is the responsibility of the Court to regard the best interests of the child as a paramount consideration in parenting matters.[8] It must do this even in circumstances where, in interim proceedings, the evidence of witnesses has not been tested through a process of cross examination and where there is limited expert evidence before the Court.
[8] Section 60CA of the Family Law Act 1975 (Cth).
In that context, in Cowling & Cowling (1998) FLC 92-801 the Full Court said at 85,006:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Further guidance is obtained in the decision of the Full Court in Goode (supra) where it was said that where findings are not possible, the Court should look to 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.”[9](Emphasis added)
[9] Goode & Goode (2006) FLC 93-286 at 80,901.
The phrase “the current circumstances of the parties and their children” is not to be taken as suggesting that the Court should apply a presumption of maintaining the “status quo” in interim parenting cases. That is clearly not the case. In that respect, the Full Court, in Goode (supra) said that even where there is a "status quo or well settled environment" the Court’s task must nonetheless "follow the structure of the Act". However, as noted by the Full Court:
…That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests.[10]
[10] Ibid at 80,902.

Accordingly, without determining whether a situation of “status quo” exists, it is entirely proper for the Court, when evaluating the matters set out in section 60CC, to have regard to “the current circumstances of the parties and their children”. That is not to say, of course, that those circumstances are the only consideration.

Section 60CC

Primary considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.

Both parties acknowledge that it is appropriate for the children of the marriage to maintain their relationship with both parents. The wife argues however that the husband’s time with the children should be supervised. This will be addressed in discussing section 60CC(2)(a).
This consideration has been relevant to the Court deciding that it is appropriate for the children to have overnight time with the husband, if and when he acquires or rents his own accommodation which is suitable to house the children. It has also been relevant in determining that, subject to expert advice concerning D, the children should spend week about time with their parents during school holidays.

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that the Court is to give greater weight to this consideration than that set out in (2)(a).

There has been no issue between the parties that the children, and in particular D, have been affected by the intense and protracted marital discord that has impacted upon their home life. Accordingly, an order is made to confirm the existing arrangement of the parties living apart by making an order for the mother to have exclusive occupation of the former matrimonial home.
The most controversial issue for the Court to consider is whether E and F will be exposed to risk, as contemplated by section 60CC(2)(b), at such times that they are in the care of the husband.
In assessing risk, the email sent by the husband to the wife dated 28 December 2014, as extracted above, has caused the Court considerable concern. While it will be the subject of argument at final hearing, the phrase “So your fear that you are being taped is actually keeping you in check to a degree” is suggestive of inappropriate controlling behaviour on the part of the husband.
For the purpose of these interim proceedings, the Court has noted the assurance of senior counsel for the husband on the husband’s behalf that this issue has been dealt with in the interim orders made by Senior Registrar Campbell on 24 June 2015, to which earlier reference has been made.
The orders of Senior Registrar Campbell also restrain both parties from "doing or saying anything to the children ... that is in any way derogatory of the other party or detrimental to the relationship the other party has with the children."
The presumed efficacy of those orders is a significant factor in assessing the issue of risk in this matter. The Court expects that those orders will be complied with.
On that basis the Court has determined that, pending further hearing, the father's time with the children does not require supervision.

Additional considerations

Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any other 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.

There is little evidence before the Court regarding the views of E and F. In that respect the report of Dr J, when it becomes available, will be of great assistance in giving consideration to section 60CC(3)(a). Otherwise, at this time, this consideration cannot be applied in respect to E and F.
D has, however, expressed a clear preference not to reside with his mother at this point in time. His wishes in that respect will be respected.

Section 60CC(3)(b)requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

An encouraging factor in this matter is that both the wife and husband appear to have very supportive families. Those broader support networks will hopefully play a constructive role in assisting the parties and the children to emerge and recover from what has been a very unfortunate period for them.
In that context, the Court would be very concerned if either party intentionally engaged in conduct intended to sever or adversely affect the children’s relationships with either of the paternal or maternal grandparents. An order is therefore made to injunct either party from denigrating the others parties parents or detrimentally affecting either of the grandparents’ relationship with the children
The other tremendously important people in each of the children’s lives are their respective siblings. There is some difficulty in framing an order that maximises the children’s time with each other, because D's time with the wife, on a final basis, will be subject to expert advice. Nevertheless, this consideration has been relevant in providing for the children to have overnight time with each other when the husband is able to obtain suitable accommodation.

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.

There is no dispute that each parent has participated in the major long-term issues concerning the children and each parent has and continues to want to spend time with the children.

Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.

Neither party has alleged that the other party has failed to fulfil their parental obligations to physically and financially maintain their children.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

The wife argued that, particularly in circumstances where the Court has granted expedition for the final hearing of the parenting matters, a cautious approach should be taken to making interim orders. On that basis, the wife argued that it would be in the best interests of the children for the current arrangements to continue. Those current arrangements are E and F living with the wife in the former matrimonial home and spending time with the husband as noted above.
While the wife wishes to increase the amount of time she spends with D, she acknowledges difficulties in that respect. Accordingly, the wife is prepared to have regard to expert advice regarding the appropriate way forward in increasing the amount of time that D spends with her.
The wife pointed out that neither E or F have lived away from their current home and argued it would be unsafe to make an order resulting in such an outcome in these interim proceedings.
The wife argued that she is the primary care giver of F and E and accordingly, orders should be made for the children to live with her and spend time with the husband. At this stage, it unnecessary to determine whether the wife remains the primary care giver in respect to E but that finding is made in respect to F.
The Court has therefore determined that the current arrangements that are in place for E and F, where they now live with the mother in the matrimonial home, should continue.

Section 60CC(3)(e) requires the Court to consider 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.

This is not a relevant consideration save in so far as it will be necessary for the husband to obtain suitable accommodation if the time E and F spend with him is to be increased.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

The conflictual relationship between the parties has unquestionably been contrary to the emotional needs of the children, but, at this interim stage, the Court is not in a position to determine issues of individual culpability.
The Court is encouraged that the parties are in agreement in respect to obtaining professional advice to address the emotional needs of the children and, in particular D. The positive input of the children's grandparents has also been referred to.
Further, the parties have agreed to consent orders, as made by Senior Registrar Campbell on 24 June 2015. Those orders established a framework intended to prevent the children from being further embroiled in these proceedings.
Those orders will continue in place pending the Court obtaining expert advice regarding the capacity of each of the parents to provide for the psychological needs of the children.

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

D’s special needs have been discussed.

Section 60CC(3)(h) requires the Court to consider if the child is an Aboriginal child or a Torres Strait Islander child.

This is not a relevant consideration in this matter.

Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

On the evidence, the Court concludes that both parents have acted responsibly in terms of attending to the physical needs of their children. However, both parents have failed to prevent their children from being exposed to and detrimentally affected by their ongoing discord. In these proceedings, it has not been possible to make findings that irresponsible conduct on the part of either parent should influence the interim orders that will be made pending final hearing.

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family.

No allegation has been made that either party has engaged in family violence in respect to the children. However, the wife has made serious allegations that the husband has engaged in abusive and controlling behaviour towards her.
The Court has been unable to make findings in respect to those allegations in these interim proceedings. It is noted that the husband and wife may come into contact when there is a changeover of the children spending time with each them. Pending more detailed consideration of the allegations, the orders confirm the wife’s entitlement to have such person as she requires to be present at those changeovers and, if she desires, to act as an intermediatory at the point of changeover.

Section 60CC(3)(k) requires the Court to consider if a family violence order applies , or has applied, to the child or a member of the child’s family and any relevant inferences that can be drawn.

There was, but is no longer, an Apprehended Violence Order that applied to the husband. That order was entered into by consent and no inferences are drawn from that Order in these interim proceedings.

Section 60CC(3)(l) requires the Court to consider 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.

These are interim proceedings pending final determination of appropriate parenting orders. Accordingly this consideration is not relevant at this stage.

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.

The Court does not rely upon any further considerations in addition to those which have been discussed.

Parental Responsibility

Section 61DA relevantly provides:
(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.
In these interim proceedings, it is not possible to make a determination in respect to significant issues of fact, including whether abusive and or violent conduct has occurred. In those circumstances the Court does not make a finding pursuant to section 61DA(3), that the application of the presumption would be inappropriate. Therefore the default position, that the presumption that the parents have equal shared parental responsibility for the children, applies.
In these interim proceedings the evidence is not such that the Court is satisfied, in accordance with sub-section 61DA(4), that the presumption of equal shared parental responsibility would not be in the interests of the children or any of them.
As the presumption has not been rebutted, the Court’s task is then to apply section 65DAA(1) by considering whether an order for the children spend equal time with each of the parents is contrary to the children’s best interests and whether such an order is reasonable practicable, having regard to s 60CC.
The High Court in MRR & GR (2010) FLC 93-424 has confirmed that the Court must consider each of these questions, that is, is it in the child’s best interests and is it reasonably practicable, before an order can be made for equal time or for substantial and significant time.
The husband sought orders which would provide for the children (other than D) to live with each parent for equal periods of time. This proposition is strongly opposed by the wife who has made serious allegations that the husband has engaged in abusive and controlling behaviour. There is currently no expert evidence before the Court to provide guidance as to what is in the best interests of the children.
Both parties agree that it would not be appropriate for D to spend equal time with both parents at this stage.
The wife has been and remains the primary carer of F. Both F and E have lived with the wife since the husband has moved out from the former matrimonial home and, with the exception of holidays, they have slept each night at that location.
It is common ground that E and F also appear to be benefitting from the decrease in tension since the husband vacated the former matrimonial home. In all the circumstances, having regard to the section 60CC considerations which have been discussed, it is determined, that pending final hearing, it is in E and F’s best interests for them to live predominantly with the wife.
As equal time is inappropriate, section 65DAA(2) then requires the Court to consider whether making an order for the children, E and F, to live with wife and spend substantial and significant time with the husband is both in the children’s best interests and is reasonably practicable, having regard to one or more of the matters in s 60CC.
Section 65DAA(3) provides that 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.
Section 65DAA(5), which sets out what the Court must have regard to in considering what is reasonably practicable, is as follows:
(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.
Despite the poor relationship between them, it is encouraging that both parents seem to accept that the children would benefit from an ongoing relationship with the other parent.
If the parties comply with the Orders they agreed to on 24 June 2015, it is possible that E and F will have a positive relationship with both parents. Clearly much more work is required to re-build D's relationship with his mother. Both parties agree to be guided by professional advice in that respect.
In these circumstances the Court finds that it is in the best interests of E and F that, pending final determination of this matter, there be an order for them to spend substantial and significant time with the husband.
The one practical difficulty that presents at this time is that the husband does not currently have permanent accommodation of his own. This will remain the case because, as noted, the Court orders that, pending final hearing, the wife is to have exclusive occupation of the former matrimonial home.
Orders will therefore provide for the current arrangements for the children to spend time with each parent to continue until such time as the husband acquires or rents his own accommodation which is suitable to house the children when they are to spend time with him. When that occurs, the time F and E spend with their father will be substantially in accordance with the orders originally sought by the wife in her Amended Application in a Case filed 12 May 2015.
Provided the husband is able to secure permanent or temporary accommodation, provision will also be made for the children to spend an approximately equivalent time with each parent during school holidays.
The children should also spend time with each of their parents on special days, including Mother’s Day, Father’s Day and their birthdays.

Exclusive Occupation

The case law in respect to exclusive occupation orders has been usefully summarised in the decision of Dawe J in Grenfell & Grenfell.[11] As both parties in this matter acknowledge that one or the other of them should have exclusive occupation of the former matrimonial home, it is unnecessary to undertake a detailed analysis of the cases referred to by Dawe J in that case. There must nonetheless be “an appropriate factual base” supporting the orders which are made.[12]
[11] [2010] FamCA 1078 at [70]-[77].
[12] S & S [2002] FamCA 59 at [40].

Pursuant to the orders the Court makes, the children will live predominantly with their mother. The husband says there is an advantage to him having exclusive occupation of the former matrimonial home. The husband refers to the final property orders that he is seeking, which provide for him to retain the former matrimonial home and pay a lump sum amount to the wife. Senior counsel for the husband argued that, given that the property settlement proposal sought by the husband is a likely outcome, it is sensible to make those arrangements now. It was submitted that it would be a waste of resources, for instance, for the husband to be required to establish and furnish a temporary home in circumstances where the husband believes he will be returning to live in the former matrimonial home.
The wife disputed that the husband’s property settlement proposal is inevitable and accordingly, the burden of furnishing a new home would potentially have consequences for both parties.
The husband advanced an argument that his returning as the exclusive occupant of the former matrimonial home would enable D to leave his paternal grandparents and return to his childhood home. However, the Court also needs to consider the welfare and needs of F and E who will be predominantly living with the wife.
In that respect, the physical separation of the parents has been a significant change for the children. Change in their housing would be another significant change. It would mean less time spent in a familiar environment. The Court would also like to consider evidence regarding the impact of any such change on the children’s circle of friends and broader support networks before requiring such a change. That evidence is not before the Court in these interim proceedings.
For these reasons, the Court considers that it is appropriate for the wife to have exclusive occupation of the former matrimonial home.

Spousal Maintenance

The Relevant Law

Section 74(1) empowers the Court to "make such order as it considers proper for the provision of maintenance in accordance with this Part".
Section 72, establishes what the Full Court has described as “a threshold question” before the power in section 74 may be exercised.[13] In that respect, in Mitchell & Mitchell (1995) FLC 92-601, the Full Court said:
That threshold is whether the applicant “is unable to support herself or himself adequately” by reason of the matters set out in (a), (b) or (c) of [section 72], but “having regard to any relevant matter referred to in subsection 75 (2)”.[14]
[13]Mitchell & Mitchell(1995) FLC 92-601 at 81,996..
[14]Ibid at 81,996.
In McCrossen & McCrossen (2006) FLC 93-283,the Full Court, after referring to a number of earlier authorities, said that the question as to whether or not a person is able to support themselves “adequately”:
…is not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.[15]
[15]at 80,839 referring to Mitchell & Mitchell (1995) FLC 92-601at 81,995..
Once the applicant crosses the evidentiary threshold of establishing the requisite financial need, it is necessary to then establish that the respondent has a capacity to pay.[16]
[16]Zadenev & Zadenev [2013] FamCA 838 at [25].
The evidentiary requirements in respect to interim applications for spousal maintenance were considered by the Full Court in The Marriage of Redman.[17] In that case, the Full Court said that it was appropriate to maintain “some flexibility in approach.”[18]
[17](1987) FLC 91-805.
[18] Ibid at 76,081referring to Nygh J.

Consideration

As a result of the orders which the Court proposes to make, F and E will be primarily in the care of their mother, at least on an interim basis. Accordingly, as both children are the under 18 years of age, the requirements set out in section 72(1)(a) are satisfied. The issue then becomes whether the wife can support herself adequately.
In that respect, senior counsel for the wife referred to the wife’s financial statement.[19] The wife discloses her average weekly earnings as $1 780 and her expenditure as $1 712. She further discloses assets of $20 600 by way of a credit balance in her bank account. To use the words of senior counsel, “there is not a lot of fat there” and he submitted that, given her commitments to her children, the wife is unable to support herself adequately.
[19]Financial statement of the wife filed 23 June 2015.
In terms of other relevant matters referred to in subsection 75(2), the wife’s submissions were to the following effect:
·In terms of section 75(2)(b), the competing financial resources of each party favour the interim property orders being made.
·This includes the fact, as at 23 June 2015, the wife had approximately $20 624.[20]
·The wife does not have any other additional financial resources by way of funds in bank accounts.[21]
·The wife has incurred further legal costs since that time.
·By way of comparison, the wife’s counsel noted that as at 30 July 2015 the husband had approximately $17 700 by way of funds in bank accounts, as well a $640 000 in share holdings.[22]
·It was also submitted that the husband has an interest in a beneficiary account with the Baumann Family Trust worth $69 797 and a loan account worth $4 583.[23].
·Senior counsel for the wife submitted that the wife continues to have the primary care and control of two of the three children of the marriage. While this was disputed by the husband, the Court notes that it has determined the wife has substantial caring responsibilities in respect to E and has primary care of F.
·The wife’s income is mostly, if not completely, expended on her expenses and the children’s expenses.[24]
·As result of responsibilities for caring for E and F, the wife is currently working part-time in clinical curriculum development and works approximately 15 hours per week.[25]
[20]Ibid at items 35 and 37.
[21] Ibid at item 57.
[22] Financial statement of the husband filed 30 July 2015 at items 37 and 38.
[23] Ibid at items 56 and 57.
[24]Financial statement of the wife filed 23 June 2015.
[25]Affidavit of the wife filed 11 May 2015 at paragraph 55.
In addressing the section 75(2) factors, the husband noted that he is currently earning an income that is less than the wife,[26] and argued that an accumulation of ongoing financial responsibilities will place him in a position of undue hardship. These include:
·Obtaining funds to meet any interim property order will require the liquidation of shares which will have taxation consequences for the husband.
·The husband is currently meeting the costs associated with the former matrimonial home.[27]
·As result of expenses exceeding income, the husband is living off capital which is being depleted at the rate of $5 000 per week.[28]
·The husband is also meeting the children’s private school fees in the sum of $1 289 per week and these expenses are also being met from capital.[29]
·The husband has himself incurred substantial legal fees and will require access to realisable funds to also meet his own expenses, which will also include responding to a forensic accounting exercise initiated by the wife.[30]
[26]Financial statement of the husband filed 30 July 2015.
[27]Ibid at Part N.
[28]Ibid at Part O.
[29]Ibid at Part N.
[30]Affidavit of Mr O filed 3 August 2015 at paragraphs 5 and 9.
Further, senior counsel for the husband referred to the wife’s medical qualifications and argued that the wife is not fully exploiting her earning capacity and therefore has not established that she is unable to adequately support herself.
Having considered the material referred to by both parties, the Court is satisfied that the wife has established that she cannot adequately support herself and that the husband has the capacity to pay spousal maintenance, for the following reasons:
·While there is a question mark regarding the husband’s income and expenditure, it is not disputed that as at July 2015 he had the capacity to draw upon and investment portfolio to the value of approximately $640 000.[31]
·As noted, the wife has the care of two children of the marriage who have not attained the age of eighteen years.[32]
·Both parties are highly qualified and have been relatively high income earners and, emotional stresses aside, have enjoyed a comfortable standard of living. In so far as it is reasonably practicable, both are entitled to maintain a standard of living that in all the circumstances is reasonable.[33]
·For a substantial period of their lives, the wife has had the primary care of twins who are now ten years old. The wife now has the primary care of F. While there was limited opportunity to do so in these interim proceedings, it is reasonable to infer that the wife’s family responsibilities have impacted upon her ability to spend the necessary time in the workforce to maintain the currency of professional skills, and hence her earning capacity.[34]
·The wife has a desire to continue in her role as a carer of her children and primary carer of F.[35]
[31]Section 75(2)(b).
[32] Section 75(2)(c).
[33]Section 75(2)(g).
[34] Section 75(2)(k).
[35]Section 75(2)(l).
On the basis of evidence available in these interim proceedings, the Court is not satisfied that it is appropriate for a lump sum amount to be awarded in respect to spousal maintenance. There has been no suggestion that the husband will not comply with an order to make periodic payments. There also remains considerable uncertainty as to when the application for final property orders will be heard. Instead the Court will order periodic payments in the sum of $475 per week, as sought in the alternative by the wife, in accordance with the financial needs of the wife reflected in her financial statement.

Interim Property distribution

The Relevant Law

The relevant case law, in respect to interim property settlements, was summarised by Fowler J in Sresbodan & Sresbodan and Ors.[36] Drawing upon his Honour’s analysis, and some additional authorities as noted below, the following principles are relevant to the Court’s consideration of the application in this matter:
[36][2013] FamCA 480 at [35]-[43].
·Together, sections 79 and s 80(1)(h) confer a power on the Court to make orders for interim property settlement.
·Section 79 confers a discreet power to make orders for property settlement. The Court may exercise the power conferred by section 79 through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[37]
[37]Gabel v Yardley as cited in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,640.
·Section 80 is not in itself a source of jurisdiction for such an order to be made. Rather, the section is an “enabling provision” that provides various ways in which the general power in section 79 may be exercised in individual cases.[38] This includes, by section 80(1)(h), making “a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”.
[38]Davidson & Davidson (No.2) (1994) FLC 92-469 and Yunghanns & Yunghanns and Ors (1999) FLC 92-836.
·There are two stages to the hearing of an application for interim property orders:[39]
[39]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,657.
oThe first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for partial property settlement before a final hearing. At this stage the “overarching consideration” is the interests of justice.
oThe second stage is the “substantive step” where the provisions of section 79 must be considered and applied but with limitations given that it is not the final hearing.
·Once the Court has determined that “the interests of justice require it to exercise the power”, that is completing the first stage, “the conditions on which the power is to be exercised [in the second stage] are governed only by the obligation to make an order that is “appropriate” and to ensure that the proposed order is “just and equitable” by reference to the matters set out in s 79(4).[40]
[40]Ibid at 85,657.
·There is no barrier or threshold requiring an applicant to establish “compelling circumstances” at either the first or second stages of the Court’s consideration.[41]
[41]Ibid at 85,646.
·Given that the party is effectively seeking access to their own funds, it is unnecessary for there to be “any detailed inquiry as to the purpose for which the funds are to used.”[42]
[42]Felice & Felice [2011] FamCA 162 at [12].
·Sufficient particulars must nonetheless be provided to enable the Court to determine:
othat the application is “genuine,”[43] and
[43]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,657.
oto “identify the circumstances that make it appropriate to give consideration to exercising its power.”[44]
[44]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,657 and see also Stresbodan & Sresbodan and Ors [2013] FamCA 480 at [51].
·While the usual section 79 considerations apply to that second stage, a detailed analysis of those considerations is not required in an interim hearing.
·Nevertheless, because the very nature of an interim hearing as such the Court is not in a position to properly evaluate the evidence, the Court should take a conservative approach, including in respect to determining whether there are likely to be sufficient resources of the parties to accommodate any “adjustment issue”.[45]
·After completion of the first two stages, it is then necessary to focus on that “adjustment issue”. That is, “whether an interim property order would give a party so much that it could not be adjusted on a final hearing.” [46]
·As a related issue, such an order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power.”[47]
·In that respect, the interim order “must be capable of variation or reversal without resort to s 79A of the Act or appeal.”[48]
·An applicant is required to show more “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”.[49]
·The exercise of the jurisdiction should be conducted in the context of and with an appreciation that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of section 79 proceedings.”[50]
·The overriding consideration at all stages of the process is that the Court is satisfied that it is just and equitable to make the order in circumstances before the Court.[51]
·In evaluating the competing contentions it is necessary to have some regard to the fact that, in family law proceedings, one party may have the predominance of resources.[52]
·In terms of legal fees, the Court will be prepared to entertain an application for interim property orders when the party with access to the least resources requires funds to conduct their own litigation, that is, to effectively even out the legal playing field. [53]
[45]Harris & Harris (1993) FLC92-378 at 79,929-79,930.
[46]Harris & Harris (1993) FLC 92-378 at 79,930 and its importance was also stressed by the Full Court in Zschokke & Zschokke; (1996) FLC 92-693.
[47]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,646 citing Finn J in Gabel v Yardley (2008) FLC 93-386.
[48] Ibid at 85,646 citing Bryant CJ and Coleman J in Gabel v Yardley(2008) FLC 93-386.
[49] Ibid at 85,646.
[50] Ibid at 85,656 citing Harris & Harris (1993) FLC 92-378.
[51] Ibid at 85, 657.
[52] Ibid at 85,643.
[53]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 and a number of subsequent cases referring to Strahan.

Consideration

In written submissions filed by the parties after the conclusion of the hearing, the husband acknowledged that “the wife will in all likelihood receive property of a greater value than $250 000” which is sought by the wife by way of an interim property order. However, the husband noted that the amount “may not be received in cash and there may be difficulties in terms of adjustments”.
The wife argued that, providing the Court is satisfied that the wife will receive a property settlement in excess of $250 000, in whatever form, then the “clawback” issue referred to in Zschokke & Zschokke[54] was satisfied.
[54](1996) FLC 92-693.
Having regard to the financial statements filed by the parties, the Court is satisfied that the property of the parties is capable of alteration or adjustment at final hearing, such that the interim property order of $250 000 sought by the wife can be accommodated within any final distribution and the husband will not be unjustly deprived of any legitimate entitlement.
The next requirement is for the Court to consider whether the interests of justice require it to exercise the power to make an interim property order. In that respect, the Court notes that, while the husband’s income is stated in his amended financial statement to be now less than that of the wife, he remains in a significantly superior financial position and has access to a share portfolio in the order of $640 000.
In that context in Strahan (supra), Boland and O’Ryan JJ noted:
In Poletti and Poletti Nygh J, when describing an application for “interim costs”, referred to the reasons of the Full Court in Wilson and Wilson and said it is a “situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case”: see also In the Marriage of Polletti at 796 per the Full Court (Ellis, Strauss and Butler JJ). The Full Court in Zschokke at 83,220 made a number of relevant remarks about the “desirability of legal representation for both parties in family law proceedings.[55](References omitted)
[55] at 85,631.
As regrettable as the marital discord has been, the reality is that both parties have incurred substantial litigation expenses and will be likely to incur further expense in properly preparing and presenting their respective cases at final hearing. It is important that, in so far as it is reasonably practicable, both parties have an equivalent capacity to do that.
The Court is therefore satisfied that the interests of justice are such that it is appropriate to make an interim property order to enable the wife to meet her legal expenses.
In terms of the second stage of the process, it is necessary to consider what order is “appropriate” and to ensure that the proposed order is “just and equitable” by reference to the matters set out in s 79(4).[56] In doing so it is not necessary, in these interim proceedings, for a detailed analysis to be undertaken.
[56]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,657.
In terms of section 79(4), the Court has had regard to the parties’ respective contributions to the marriage, household and property, both financial and non-financial. While detailed consideration is not possible in these interim proceedings, the parties are in agreement that the respective contributions of the parties are such that it will be “just and equitable” for the property interests of the parties to be adjusted at final hearing pursuant to section 79 of the Act.

In so far as section 79(4)(e) requires the Court to have regard to section 75(2) factors, the Court refers to the submissions of the parties discussed above.
Having regard to the submissions of the parties, in the context of section 79(4) of the Act, the Court is of the opinion that it is just and equitable to make the interim property order as sought by the wife for a partial property distribution to enable her to meet her legal costs.
The wife’s legal representative filed an affidavit, in the proceedings, attesting to the legal costs incurred by the wife to date and the legal costs likely to be incurred by her in the future. The Court accepts that the total amount that the wife will likely incur in respect those legal costs will be in the order of $250 000.

Conclusion

The parties acknowledge that it is important they address the trauma that their marital discord has caused for their children. On that basis, the Court has granted the joint application for expedition of the parenting proceedings. The interim parenting orders which the Court proposes to make are intended to establish a framework for the exercise of parental responsibility until the final hearing in February/March 2016. In the meantime, the Court encourages the parties to continue to draw upon professional advice for themselves and their children as well as the broader support of their respective families.
This judgment sets out the reasons for the interim orders which are set out at the commencement of this judgment. In considering what final orders to make, the Court will be influenced by the conduct of the parties that has occurred to date and also the conduct of the parties in complying with these Orders as well as the consent orders the parties have previously agreed to.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 10 September 2015.

Associate:

Date: 09 September 2015