SAINI & KADE

[2015] FCCA 1838

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAINI & KADE [2015] FCCA 1838

Catchwords:
FAMILY LAW – Interim children’s arrangements – urgent spousal maintenance by way of mortgage payments.

Legislation:

Family Law Act 1975

Applicant: MR SAINI

Respondent: MS KADE

File Number: MLC 1404 of 2015

Judgment of: Judge McGuire

Hearing date: 15 June 2015

Date of Last Submission: 15 June 2015

Delivered at: Melbourne

Delivered on: 15 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Mimmo

Solicitors for the Applicant: Plaza Legal

Counsel for the Respondent: Ms Baczynski

Solicitors for the Respondent: Dave Stagg Tonkin & Co

ORDERS

1. Until further order, the children X born (omitted) 2010 and Y born (omitted) 2012 (“the children”) live with the wife.

2. Until further order, the children spend time and communicate with the husband as follows:

   (a)For a period of six weeks each weekend between Saturday 10.00 am and Sunday 5.00 pm;

   (b)Thereafter each weekend from Friday, 5.00 pm to Sunday 5.00 pm; and

   (c)At such other times as may be agreed between the parties from time to time in writing.

3. For the purposes of these orders changeover for the children take place outside the (omitted) Police Station.

4. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children X born (omitted) 2010 and Y born (omitted) 2012 (“the children”) attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and time or times to be advised for the purposes of the preparation of a family report, such report to be released by 28 January 2016, and:

   (a)The family report to deal with the following matters:

   ·any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   ·the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the children;

   ·the willingness and ability of each of the parents to facilitate and encourage the children’s relationship with the other parent;

   ·the nature of the relationship between the children and the parents;

   ·any family violence within the definition of the Family Law Act which impacts on the living arrangements and parenting capacity of each of the parents;

   ·the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   ·any other matters that the family consultant considers important to the welfare or best interests of the said children.

   (b)The parties send copies of all of their court documents to the family report writer within seven days of being requested to do so by the family report writer.

   (c)The nominated family consultant is permitted to inspect all documents brought to Court under subpoena issued in this matter and previously released for inspection by at least one party.

5. Until further order, the respondent wife have sole occupancy of the former matrimonial home situated at Property W in the State of Victoria.

6. Until further order, the husband meet the mortgage and Council Rates payments on the former matrimonial home as they become due and owing.

7. The matter be adjourned for final hearing on 25 February 2016 at 10.00 am at Melbourne (with an estimated hearing time of two days).

8. Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 14 days prior to the final hearing and the parties shall not file further affidavits after that time without first obtaining leave from Judge McGuire to so do.

9. Each party file and serve a case summary document in an appropriate form not later than seven days prior to the final hearing.

10. The applicant pay the setting down fee not later than seven days prior to the final hearing.

AND THE COURT NOTES THAT:

A.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Saini & Kade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1404 of 2015

MR SAINI

Applicant

And

MS KADE

Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. This application involves two issues. Firstly, an application by the father to spend time with the children X born (omitted) 2010 (five years old) and Y born (omitted) 2012 (two and a half years old) (“the children”) and, secondly, an application by the husband that pending a conciliation conference, there be immediate sale of the former matrimonial home.

2. The husband’s position in respect of the children is that they should spend time with him weekly between Friday and Sunday. Counsel for the father says that he is currently working four days a week although, has the capacity to work five days per week and has a gross income of some $78,000 per annum.

3. The mother proposes that the children spend time with the father on one day per week between 10 am and 5 pm for a period of six weeks and then for time to extend to overnight time.

History

1. This matter has a sad history as set out in the affidavit material. The parties married in India on (omitted) 2008 as an arranged marriage. The mother came from India at 19 years of age and struggles with English. The mother’s affidavit material makes allegations that this is a relationship highlighted by family violence. It is clear from the submissions that I have received today that the bitterness and antagonism between these parties continues.

2. Since the parties separated the mother has been the delegated primary carer of the two young children. 

Ms A’s evidence

1. The Court has been assisted today by a report from Family Consultant Ms A. Ms A had the benefit of interviewing both parents and seeing them with the children. In my view, Ms A’s comments are enlightening, whilst not alleviating the concerns that I have on the material before me, albeit untested, as to the history of family violence in this matter.

2. This is an interim hearing and the Court does not have the benefit of full forensic preparation and testing of the evidence as it would and will have at a trial where the parties will endure cross-examination in the witness box and will have, as I have said, time to properly prepare and bring evidence to Court. 

3. It flows from that that it is difficult for the Court to make findings of disputed fact and credit. What the Court is left with is the uncontroversial evidence of the parties and the independent insightful evidence of Ms A.

4. Having said that, I am still obliged to make orders which have the children’s best interests as my paramount consideration. In determining those interests of the children, I am to reference the probative evidence and the parties’ proposals to the factors set out in section 60CC(2) and (3) of the Family Law Act1975 (Cth) (“the Act”).

5. Section 60CC(2)(b) of the Act deals with issues of family violence and abuse of children. Where the mother might raise her concerns with the family consultant as to the potential for some form of sexual abuse, the material before me does not bear that and, in fact, the position put by the mother is difficult to rationalise any such fears that she might hold. She seeks orders for unconditional time for the children with the father including overnight time. As I have said, I find that proposal difficult to reconcile any fears that she might hold that these children are at danger of being sexually abused.

6. She conveys to the family consultant her own alleged history of family violence at the hands of the husband. In my view, this cannot relate to or be mitigated by any cultural or other claims.  Nevertheless, the orders that I am asked to make are in respect of the children, not the mother herself. Although, having said that, this mother needs to be confident and trusting when her young children leave her care into the care of the father.

7. Ms A’s observations were of a comfortable and enjoyable relationship between the children and their father and I am given some confidence by those observations.  Not unusually in matters such as this, the mother’s Counsel urges a more conservative, cautious approach in respect of the children’s time with their father.  Conversely, and also not unusually, the father seeks a more generous regime of time with the children.  I place some weight on, as I have said, the insightful and independent view of the family consultant.

8. These children are young and need to be introduced to their father as their carer in his household and I am of the view that there should be a regime of time that starts in accordance with Ms A’s recommendations being, that the children spend one night per week with their father before moving to two nights per week. Given the father’s work commitments this should happen on a weekend and I propose that the children spend time with him weekly in the interim.  I will again dwell there to say that it is unlikely that such an arrangement will continue in the long term, given that in the future these children will need to enjoy weekend time with the mother as well.

9. I am of the view that the children should spend time with their father firstly, from 10 am on Saturdays until 5 pm on Sundays.  That should be for a period of six weeks, and then that time will continue from the Friday afternoon.  I propose Friday at 5 pm until Sundays at 5 pm.

Property application.

1. In respect of the financial mattes, the husband seeks an order that the former matrimonial home be sold. The wife and the children have been living in the home and the husband has been paying rent for himself in alternative accommodation.

2. There is confusion on the sworn material before me filed in respect of the father’s financial circumstances.  I now understand, contrary to his sworn financial statement, that he has an annual income of some $78,000 a year.  I am satisfied that he has been voluntarily limiting his working week to four days a week when he can work five days per week.  It is clear that the wife has not been gainfully employed, and it is clear that the husband has been meeting the mortgage payments during the duration of the parties’ relationship. 

3. As I have said, the husband has an obligation to evidence the assertions he makes in respect of his capacity or incapacity for financial contribution and he bears that responsibility. I am told that the husband is not paying formal child support for the children at this stage, although he appears to be paying support in lieu to the wife by contributions towards car payments and other outgoings.

4. These children are accommodated in the former matrimonial home. The wife does not work. She does not receive formal child support, and I take this to be effectively an application for urgent spousal maintenance under section 77 of the Family Law Act 1975 (Cth) (“the Act”). It is not insignificant that the husband comes to this Court and in his affidavit material sets out his devotion for his children and his wish to provide them with the best that he can, given his circumstances and the unfortunate breakdown of his relationship with their mother.

5. The husband is in gainful employment.  He says that he has an income of $78,000 per annum.  His only additional expense would be the rental on his own home.  His own material is at times ambiguous and sometimes contrary in respect of his ongoing expenses and a prime example being, that he swears to the fact of having a credit card liability of $12,000 of which he pays $1000 per week as a minimum payment.  Frankly, I do not accept that sworn evidence. Even a cursory examination of his financial statement, but without testing, gives some doubts as to the veracity of some entries and hence to his capacity to the wife’s needs.

6. These parties are to attend a conciliation conference in August of this year. 

7. I am of the view, in all of the circumstances, this being an urgent application for spousal maintenance, that the wife should be accommodated by the husband meeting the mortgage costs on the home until further order or until the parties reach an alternative arrangement. I make that finding and those orders in light of the fact that this matter is progressing and will soon have the benefit of a conciliation conference.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  4 August 2015