RUSHBROOKE & BAUMANN

Case [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 of 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

  1. 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.

  2. 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.

  3. 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…

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AGLC
RUSHBROOKE & BAUMANN [2015] FamCA 749
Case
[2015] FamCA 749
Decision Date

CaseChat Overview and Summary

In this interim family law proceeding before McClelland J, the parties, a husband and wife, were in high conflict following the breakdown of a "nesting" arrangement where they had continued to live under the same roof with their three children. The eldest son had moved to live with his paternal grandparents due to a difficult relationship with his mother. The wife sought exclusive occupation of the former matrimonial home, lump sum spousal maintenance, and a partial property settlement, while the husband also sought exclusive occupation of the home.

The court was required to determine appropriate interim parenting orders for the three children, considering their best interests and the various section 60CC factors, including the assessment of risk in the high-conflict environment. Additionally, the court had to decide on interim property matters, specifically the exclusive occupation of the former matrimonial home, the husband's capacity to pay spousal maintenance, and whether an interim property settlement was warranted.

McClelland J reasoned that given the parenting orders made, it was appropriate for the wife to have exclusive occupation of the former matrimonial home. The court found the husband had the capacity to pay periodic spousal maintenance and that a partial property settlement could be accommodated at the final hearing, deeming such an order to be in the interests of justice. In relation to parenting, the court made orders for the eldest son to live with the husband and spend time with the wife, while the other two children were ordered to live with the wife and spend time with the husband, with specific arrangements detailed for the transition and holiday periods. An Independent Children's Lawyer was appointed to represent the children's interests.

The court ordered that pending further order, the wife was granted exclusive occupation of the former matrimonial home and the husband was restrained from entering it, save for child changeovers. The husband was ordered to continue paying all outgoings for the property, pay the wife $475 per week by way of periodic spousal maintenance, and pay the wife $250,000 by way of interim property settlement within 28 days. Parenting orders were made as detailed in the judgment, including the appointment of an Independent Children's Lawyer.

Orders

Orders of the court

That pending further order:

Property

1.

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.

2.

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.

3.

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.

4.

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.

5.

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

6.

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:

7.

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.

8.

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.

9.

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.

10.

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.

11.

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.

12.

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.

13.

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.

14.

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.

15.

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.

16.

Unless otherwise agreed between the parties in writing, the children’s passports are to be held at the husband’s solicitors’ office.

17.

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.

18.

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.

19.

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.

20.

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.

21.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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