Saintclaire and Saintclaire

[2014] FamCA 581

FAMILY COURT OF AUSTRALIA

SAINTCLAIRE & SAINTCLAIRE [2014] FamCA 581

FAMILY LAW – PROPERTY – interim – spousal maintenance – where the husband sought to discharge the current interim spousal maintenance order – where the wife sought enforcement of arrears under the current spousal maintenance order – where the husband submitted that the wife’s income had significantly improved since the interim spousal maintenance order was made – where the husband asserted he did not have a reasonable capacity to make payments – where it was found that the wife still had at least the same need as provided for in the existing order – where this finding might change once there is a full testing of the wife’s financial position – where the husband is in a far superior financial position to the wife and has the capacity to make payments – where it was found that the existing spousal maintenance order continues to be a proper one – the husband’s application for a discharge of the interim spousal maintenance orders is dismissed – an order is made that the husband pay to the wife outstanding arrears of spousal maintenance.
FAMILY LAW – PARENTING – interim – where the wife sought variation of the current interim parenting orders – where there is considerable difference between the parties in relation to what has occurred in respect of the children leading up to the interim hearing – where the wife has not established that there have been significant changes that would warrant a change in the current interim orders – where the wife has not established that the changes she proposed would be in the best interests of the children – the wife’s application for a variation to the interim parenting orders is dismissed – where other orders sought by the wife not supported by uncontroversial facts.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Saintclaire

RESPONDENT: Ms Saintclaire

FILE NUMBER: SYC 7614 of 2010

DATE DELIVERED: 25 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 and 22 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The husband’s Amended Application in a Case filed 16 October 2013 be dismissed.

2. The wife’s applications in her Response filed 29 May 2013, being orders 2, 3, 4, 7, 8, 9, 10, 11 and 12 be dismissed.

3. Order 6 as sought in the wife’s Response filed 29 May 2013 be stood over generally and that application may be restored after the husband’s appeal against orders made by Justice Ryan on 25 June 2013 has been determined.

4. The wife’s contravention application filed 8 July 2013 be dismissed by consent on the basis that the wife was permitted to make an oral application for enforcement of spousal maintenance orders made by Rose J on 21 February 2011.

5. The husband by way of payment of arrears of spousal maintenance (calculated as being 17 weeks from 23 June 2013) pay to the wife the sum of $20,009 and in default the parties do all things and sign all necessary documents to cause Westpac Banking Corporation to pay to the wife from a term deposit which he holds for Mr Saintclaire in the approximate sum of $265,020 the amount of $20,009.

6. The husband is to forthwith pay to the wife any additional arrears in respect of the spousal maintenance order that have accumulated since the date of the hearing, and in the event that the husband does not do so within a period of fourteen days, the wife has liberty to list the matter before me for an order for enforcement.

7. Both parties costs of these proceedings are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saintclaire & Saintclaire 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 7614/2010

Mr Saintclaire

Applicant

And

Ms Saintclaire

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In these interim proceedings, the husband seeks discharge of the current interim spousal maintenance order. The wife seeks enforcement of arrears under the current spousal maintenance order and variation of the current interim parenting order.

APPLICATIONS

1. Several interim applications were listed before me.

2. The husband’s amended application filed 16 October 2013 sought the discharge of interim spousal maintenance orders that were made by Rose J on 22 February 2011. The application also sought the lifting of an injunction restraining the husband from selling a property at Suburb C. That application was not pressed and I note that the parties had agreed that that property could be sold, and it since has been sold.

3. The wife applies in a response, filed 29 May 2013, for amendment to parenting orders made by Ryan J on 3 April 2012 together with additional parenting orders.

4. The wife had filed some material in relation to her assertion that the husband had failed to provide her with articles and personal belongings and effects in accordance with notation B of the orders made by Rose J on 21 February 2011. I did inquire as to what application that material related. No party specifically drew my attention to order 6 as sought in the wife’s response, which is in the following terms:

   That [Mr Saintclaire] compensate me for those articles and personal belonings [sic] and effects which he did not provide to me in accordance with Notation B of the orders made by his Honour Justice Rose made on 21 February 2011.

5. No submissions were made in relation to that application. I do not intend to dismiss that application but stand it over generally. The wife has an extant application for a property settlement order. The husband challenges the jurisdiction of the court to make that order based upon the husband’s assertion that there is a binding financial agreement entered into on 28 September 2009. That financial agreement did not exclude the court’s jurisdiction in relation to spousal maintenance. On 25 June 2013 Justice Ryan set aside the financial agreement. The husband has filed a Notice of Appeal against the setting aside order and that appeal is yet to be heard by the Full Court. If the wife wishes to proceed with her interim application for compensation contained in Order 6 of her application, it is more appropriate that that be dealt with once it is known whether or not her section 79 application will proceed. I will stand that application over generally until after the result of the husband’s appeal against the orders made by Ryan J on 25 June 2013 is known.

6. The wife also applies for the following orders:

   11.That the Local Court proceedings be dismissed with an Order for costs.

   12.That [the husband] pay my costs incurred for the Local Court proceedings.

7. Applications 11 and 12 attracted no comment by either party during submissions. This Court does not have any power to dismiss the Local Court proceedings, although it would have power to injunct the husband from continuing them pending resolution of the outstanding applications in respect of financial matters. In their current form however, those applications must be dismissed.

8. The wife filed an application for the husband to be dealt with for contravention of orders. That application was filed on 8 July 2013. The subject of the wife’s complaint is that the husband ceased to comply with payment under spousal maintenance orders. It was calculated that as at the date of hearing, the noncompliance was 17 weeks which equated to approximately $20,000. At my invitation, the wife agreed to withdraw her contravention application on the basis that I would accept her oral application for the enforcement of the spousal maintenance orders. If the husband is successful in his application to discharge those orders from the date of his application or even the date to which they stand paid, then there will be nothing to enforce. Otherwise, if the orders are to be enforced the wife is to be paid arrears from the smaller term deposit with Westpac in the sum of $265,000.

9. The husband also has filed a contravention application which was listed before me, for mention. The husband complains that the wife has failed to comply with certain parenting orders relating to electronic communication (notwithstanding the fact that apparently he asserts that the wife has failed to comply with making the children available to spend face to face time with him pursuant to the current parenting orders). That application had a future listing and no directions were sought in respect to that application.

DOCUMENTS RELIED UPON

1. The husband relied upon an affidavit filed 24 April 2013; a financial statement filed 24 April 2013 and an affidavit as to interim issues filed 16 October 2013.

2. The wife relied upon an affidavit filed 29 May 2013; a financial statement filed on 29 May 2013 and an affidavit filed 8 July 2013.

THE WIFE’S FINAL PARENTING APPLICATION

1. A preliminary point was taken by the husband that the wife’s application for variation of the parenting orders that were made by consent by Justice Ryan on 3 April 2012 was an application for interim orders in circumstances where no application for final orders had been filed. The wife indicated that she sought final orders in the same terms as her interim application and I entertained her interim application on that basis. An order has been made for her to file an application for final parenting orders.

BACKGROUND

1. The parties commenced cohabitation on 16 July 1996; married in 2009 and separated on 12 September 2010.

2. There are two children of the marriage, L born in 2006 and G born in 2008. The children have lived with the wife and have been in her primary care since separation.

3. The wife lives in rented accommodation at Town D.

4. As indicated, there is an extant application for financial relief filed by the wife on 3 December 2010. As part of that application (order 16), the wife seeks lump sum maintenance of $1 million.

5. The application for final financial relief has not yet been resolved. As also mentioned, the parties entered into a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) (“The Act”). The wife at first instance has successfully obtained an order to set that agreement aside. The husband has appealed that decision and that appeal is yet to be considered by the Full Court. The Docket Registrar has correctly not attempted to list the application for final lump sum spousal maintenance independently of the other financial relief that is sought by the wife.

6. On 22 February 2011 Justice Rose made an interim spousal maintenance order which required the husband to pay the wife $777 on a weekly basis and an additional $400 per week for rent.

THE HUSBAND’S APPLICATION TO DISCHARGE THE SPOUSAL MAINTENANCE ORDER

1. Section 83 of the Act deals with the modification of spousal maintenance orders. S 83(2) of the Act provides that a court shall not make an order decreasing an amount ordered to be paid by a maintenance order unless it is satisfied, amongst other things, that since the order was made the circumstances of the person for whose benefit the order was made have so changed as to justify a change in the order, or, if the circumstances of the person liable to make the payments under the order have so changed as to justify doing so (ss83(2)(a)(i) and (ii)).

2. The affidavit in support of the husband’s application for a discharge of those orders asserts that the wife’s income had significantly improved since the date Rose J made orders in 2011. The husband’s financial statement filed in support of his application also asserts on its face that he did not have a reasonable capacity to continue to make payments. That evidence is expanded in a further affidavit that he filed on 16 October 2013.

3. The husband complained that the wife had not fully disclosed her financial position and had not complied with a notice for her to produce documents at the hearing. The wife had documents on a USB but had left the USB in Town D on the morning of the hearing. She provided documents by email in response to the notice on the second day. No submission was made in relation to those documents and the wife did not seek to tender any further documents that she had sent to the court on the second day.

THE WIFE’S EARNING CAPACITY

1. In relation to the wife’s earning capacity, the husband makes the point that in the reasons for judgment of Rose J, his Honour noted that the wife’s only source of income was the payment of child support and possibly a Government family allowance. That submission accurately records what can be found at [25] and [26] of his Honours reasons. His Honour explains at [30] that since 2 January 2011 the wife had unsuccessfully sought employment in the financial services industry in Town D (that is, the income that she deposed to have in her November 2010 financial statement was no longer being received by her).

2. At paragraph 28, his Honour did note that the wife had a capacity to be professionally employed, that the wife had qualifications for such employment and has a history of employment with a bank, initially on a full time and later, part time basis. That employment ceased in November 2009. In July 2010 the wife commenced part time work in a business established with two other people, and continued up until when she moved to Town D. Justice Rose found that further qualifications were necessary for the wife to obtain employment in Town D. It was on that basis, that at that stage in 2011, his Honour was satisfied that the wife was unable to exercise her capacity for employment.

3. The wife now does receive some income from personal exertion. In her financial statement, the wife estimates that her current total salary or wages before tax is $769 per week.

4. The husband relied on various documents in an attempt to suggest that the wife’s stated income in her financial statement was an underestimate. In the context of this interim hearing, there is no testing of the evidence. I am not satisfied however that the wife is understating her income. In her affidavit filed 29 May 2013 the wife says:

   11. I am currently employed as a contractor to [H Pty Ltd].

   12. My position with that firm is Project Manager.

   13. I receive a fee of $200.00 per day for each day I work.

   ....

   25. I have worked 5 days per week from February this year.

   26. I have been required to take time off work for various reasons including staying home with the children when they are sick, attending school functions and assemblies, school holidays and personal leave and sick leave for myself.

5. In the event that the wife worked a full five days a week, then her gross income would be $1,000 per week. As at the date of the interim hearing the wife had not yet completed tax returns for the 2012 or 2013 financial year. In the context of this interim hearing I am prepared to accept her estimate that her average weekly income is $769 gross.

6. Based upon the evidence I have set out above and accepting the wife’s assertion that her responsibilities for caring for the children mean that she is not able to work a full working week, I accept the wife’s income as stated by her.

THE WIFE’S NEEDS

1. In his judgment in 2011, Rose J referred to the wife’s financial commitments as being set out in her financial statement sworn 30 November 2010, filed 2 December 2010. He recorded that those weekly expenses totalled $827 per week. He accepted the wife’s expenditure, less deduction of $50 for holidays, and concluded that her necessary expenditure at that time was $777 per week (excluding rent). His Honour then went on to estimate that the wife’s need for accommodation for herself and the children could reasonably be assessed at $400 per week.

2. His Honour made an order for interim spousal maintenance accordingly.

3. I note in passing that it seems his Honour may not have taken into account the wife’s expenditure, as claimed in the November 2011 financial statement, of life insurance premiums (item 25), other insurance premiums (item 26), motor vehicle registration (item 27), higher purchase/lease agreement payments (item 28), and ANZ bank personal loan repayments (item 29).

4. I do not need to dwell on that given that the wife has now filed an updated financial statement as to her current income and expenditure, and has not herself sought an increase in the order made by his Honour for her maintenance.

5. The husband ceased payments to the wife under the existing orders on 23 June 2013. There is evidence before me that the wife has borrowed monies from her current employer since that time. The wife says that these monies are necessary for her to be able to continue to live.

6. The wife’s current estimate of her necessary expenditure is as follows:

Income tax (there is an additional $100 per tax in Part N)

           $27.00

Rent

           450.00

Life insurance premiums

              92.00

Other insurance premiums

              19.00

              10.00

              31.00

Motor vehicle registration

              18.00

Hire purchase lease agreements (motor vehicle)

           141.00

Total

         $788.00

1. In Part N of her financial statement, the wife says that she has additional expenses of $1,736. In addition, the wife has commitments to repay a loan to the ANZ Bank and repayments on credit cards.

2. I do not have the advantage of any of these figures being tested in cross examination or in submissions. Counsel for the husband made no significant criticism of the claims by the wife apart from pointing out that $75 per week in the wife’s column that related to education expenses including fees and levies clearly related to the children and not to her, and that the $100 per week spending money, relating to money needed by the wife to facilitate the children’s time with their father, was not incurred during the June/July school holidays.

3. Looked at overall and afresh and taking into account my finding in relation to the wife’s current level of income, I am comfortably satisfied that the existing order made by Rose J (in the sum of $1,177 per week) is needed by the wife on an ongoing basis to continue to live whilst this litigation is pending. I have taken a broad brush approach and acknowledge that this result might change once there is a full testing of the wife’s financial position.

HUSBAND’S CAPACITY TO PAY

1. The husband asserts that his financial position has deteriorated since 2011. He now estimates, in his affidavit filed 16 October 2014, that his assets are $4,450,520 and that his liabilities are $2,760,000.

2. The husband’s gross salary is $5,883 per week with bonuses of $577 per week. The husband has an investment property and estimates that he receives $580 per week from that property. The husband also receives $690 per week by way of interest from Westpac. Overall when other benefits from employment are taken into account, the husband’s average weekly income is $8,261. The total personal expenditure asserted by the husband in his financial statement is $9,475 per week. The apparent shortfall in the husband’s expenditure in excess of his income is $1,214 ($9,475 - $8,261).

3. The husband’s claimed expenses include a combined payment to the wife of $2,022 per week, being spousal maintenance payments pursuant to the 2011 order and child support. It was not explained to me as to how that figure is calculated. The husband’s affidavit says that when assessed to pay child support at a rate of $2,200 per month, which is $508 per week, combined with the spousal maintenance order, the liability would seem to be $1,685 ($1177 + $508).

4. So far as I can tell, the overstatement by the husband in relation to the payment of spousal maintenance and child support is in the sum of $337 ($2,022 - $1,685).

5. The other matter of note arising out of the husband’s financial statement is the assertion by him that he is paying mortgage payments to Westpac and ANZ in the sum of $1,500 per week. The note to item 23 indicates that so far as an amount of $770 per week of that sum was concerned, that commitment was a temporary one between April and October 2013 as that part of the husband’s mortgage commitments related to the Melbourne property which had been sold.

1. Consequently it can be seen that, without further interrogation of the husband’s financial statement, the husband’s asserted shortfall moves to a surplus of about $1,070 per week ($2022-$508-$1214+$770). This is about $100 short of what the wife needs. A cursory comparison of the Part Ns in the party’s respective financial statements discloses that in some areas where the additional amount can be readily found. For example, the husband claims $200 per week for house and pool cleaning; the wife makes no claim under that category.

2. Looked at overall, the husband is in a far superior financial position to the wife. He enjoys a far superior income and has control over significant assets.

CONCLUSION

1. Although there has clearly been some change in financial circumstances of both parties since 2011 that would warrant a fresh look at the interim spousal maintenance order, I find that the wife still has a need at least of the same sum to that which Justice Rose identified on a different basis and that the husband has the reasonable capacity to meet that need. The existing spousal maintenance order continues to be a proper one. Accordingly, the husband’s application for a discharge of the interim spousal maintenance orders is dismissed.

2. There remains to be considered the question as to whether or not it would be appropriate to discharge the spousal maintenance order during the period from April to October 2013 on the basis that the husband had a commitment of $770 per week by way of funding the mortgage facility for the Melbourne property.

3. The wife during submissions pointed to the fact that there had been a substantial increase on an unexplained basis in the borrowings, in the order of $150,000. The husband deposes to the fact that that was all interest. The wife suggests that that is inherently implausible. I am unable to further make any comment about the husband’s sworn evidence without his assertion being tested.

4. Given the husband’s overall financial resources however, the fact that he had a commitment between April and October to pay $770 per week by way of mortgage repayment (rather than renegotiating an arrangement with the bank pending sale of the Melbourne property), is not sufficient reason for me to partly discharge the interim spousal maintenance order for that period and the order will stand for that period.

ENFORCEMENT OF THE ARREARS OF SPOUSAL MAINTENANCE

1. It was agreed that the order for spousal maintenance had not been paid for a period of 17 weeks and that the arrears were almost in the exact sum of $20,000. I will make an order that the husband pay that amount to the wife within 14 days and in the event he fails to do so, then there will be a default order that Westpac pay that amount to the wife from the smaller term deposit.

2. I am not aware of the history of the husband’s compliance with the spousal maintenance since the date of the hearing but in the event that he has not been paying the amount ordered by Justice Rose, then the wife should have liberty on seven days notice to seek enforcement of any arrears that have accumulated since the hearing before me, in the event that the husband does not otherwise forthwith pay any arrears.

THE WIFE’S INTERIM PARENTING APPLICATION

1. On 3 April 2012 final parenting orders were made by consent in relation to the two children of the marriage by Justice Ryan.

2. Relevantly, those orders were as follows:

   4.1 Every third weekend during each school term from Friday after the conclusion of school to 5:00 pm Sunday commencing from the second Friday of the term and alternating accordingly to the end of the term (with the exception of 2012).

   4.3 From:

   4.3.1 28 June 2012 to 2 July 2012, and

   4.3.2 22 September 2012 to 26 September 2012,

   with changeovers to occur at Sydney airport or another mutually agreed venue not later than 12 Noon on the day the children’s time with the husband commences and not earlier than 4pm on the day the children’s time with the husband concludes with the wife giving the husband four weeks notice of her preferred changeover times within those parameters.

   4.3 Commencing in 2013 for one half of each school holiday period (excluding December / January Christmas holiday period), being the first half in odd numbered years commencing in the year 2013 and each alternate year thereafter, and the second half in even numbered years commencing in the year 2014 and each alternate year thereafter.  [sic – numbering as per consent orders]

   4.4 The “first half” of a school period means from 1pm on the first day following the last day of the school term until 1.00 pm on the Sunday falling closest to the midpoint of the holiday period and the “second half’ of a school holiday period means from 1.00 pm on the Sunday falling closest to the midpoint of the school holiday period until 1.00 pm on the final Saturday of the holiday period.

   4.5 From December / January Christmas Holidays 2013 / 2014 from 12 noon Boxing Day for a period of fourteen (14) consecutive days.

   5. The husband may at his election reduce the time he spends with the children pursuant to Order 4 by providing the wife with at least four weeks notice of his intention to do so and will spend time with the children in accordance with the notice. For example the husband may elect to spend time with the children between 10.00am and 4pm on the Sunday at [Town D] instead of a full weekend if he can’t fly them back to Sydney or may spend one week during the school holidays with them if he cannot organise more leave from work.

3. The wife in her interim application seeks that these orders be amended as follows:

   2.The orders made on 3 April 2012 by the honourable Justice Ryan in relation to the children be amended as follows:

   Order 4.1 Every third weekend during each school term from 10.00am Sunday until 4.00pm the same day in [Town D].

   Order 4.3 Commencing in 2013 for a period of five consecutive days each school holiday period (excluding December/January Christmas holiday periods).

   Order 4.4 be deleted

   Order 4.5 relates to a period which has passed.

4. The wife also seeks the following orders:

   3. That [Mr Saintclaire] diligently comply with the children’s medication regime whilst they are in his care.

   4. That [Mr Saintclaire], in person, spend the time designated by the orders with the children and not utilise the services of a babysitter or any other person whilst the children are meant to be spending time with him.

   7. That [Mr Saintclaire] comply with Order 21 of the Orders made by Her Honour Justice Ryan on 3 April 2012.

   8. That neither child be exposed to any adult behaviour of a sexual or inappropriate nature.

   9. That [Mr Saintclaire] be restrained from taking the children overseas unless the court is satisfied that he has developed an appropriate parental relationship with both children.

   10. That whilst the children are with [Mr Saintclaire] he take particular care to ensure their safety and wellbeing at all times and in particular avoid sunburn.

5. There is considerable difference between the parties in relation to what has occurred in respect of the children in the period leading up to the interim hearing. I am unable to resolve those differences on an interim basis.

6. At paragraph 41 of her affidavit the wife says that the husband flies into Town D on an average of, but irregularly, every fifth week to spend time with the children between 10am and 4pm on a Sunday. The husband denies that is so, saying there were only two occasions, one in August 2012 and one in October 2012 where contact visits were cancelled and the husband says both of those were cancelled by the wife.

7. The wife complains that the husband has not attended special events for the children. The husband complains that the wife has provided him with no invitations to do so.

8. The wife says the last occasion the husband spent time with the children was on Mother’s Day, Sunday 12 May 2013. The husband agrees that he did not see the children between Sunday 12 May 2013 and Sunday 15 September 2013, he says his time with the children only recommenced prior to the interim hearing after his lawyers intervened to make arrangements on his behalf. The husband says that he was unable to see the children when he was scheduled to on 2 June 2013 because he was committed to a university lecture and that that is within the contemplation of order 5 of the final parent orders.

9. The wife alleged that she did not receive a proposal from the husband for the husband to spend time with the children during the June 2013 school holidays. The husband has produced emails which would seem to indicate that he had made such an arrangement. The wife asserted that she had not had an opportunity to respond to that evidence and I am unsure without further testing as to what the true position is in relation to the June 2013 school holidays (apart from the agreed fact that the husband did not see the children during those holidays). As I have already noted, the husband’s contravention application extant at the date of the interim hearing, does not complain about any failure by the wife to facilitate face to face time.

10. There is an issue between the parties as to whether or not the husband has availed himself of the opportunity under order 9 of the 2012 orders to communicate with the children. The husband has made a complaint about that and it is the subject of a contravention application which has been listed at a date subsequent to this interim hearing.

11. The wife makes a general complaint of the husband being tardy in relation to electronic communication and the children being disappointed when those scheduled events do not take place.

12. The wife also makes more general complaints about the husband’s care for the children, particularly in relation to the use of creams to control G’s eczema. The wife makes one specific complaint about G suffering an injury to her head on a tile floor whilst in her husband’s care.

13. In relation to the additional parenting orders which the wife seeks, they did not attract a great deal of specific attention during the interim hearing. The husband resists all of these variations to parenting orders as sought by the wife on an interim basis. The husband gives some explanation in relation to some of the specific complaints made against him in respect of his care of the children while they were with him.

14. As a threshold issue, even though the orders are pending further order, the wife needs to establish some significant change in circumstances from when the interim consent orders in relation to the children were made (see Rice and Asplund (1979) FLC 90-725 and the cases that have followed it). In the context of this hearing, on the papers, the wife has not established that there have been significant changes in circumstances that would warrant a change in the current interim orders. Nor has she established that the changes she proposed would be in the best interests of the children. The uncontroversial facts are limited in their scope. In the context of this limited application the wife has not established that there has been a significant change in circumstance that would allow me to interfere, on an interim basis, with final orders that were made by consent in 2012.

15. I dismiss her application in that regard.

16. The wife has not established that the husband does not diligently comply with the children’s medication regime whilst the children are in his care.

17. In respect of order 4 which seeks that the husband not utilise the services of a babysitter when the children are in his care, the wife gives the following evidence in her affidavit filed 29 May 2013: At [54] the wife states that “both the children have informed me that rather than spend time with them [the husband] utilised the services of babysitters to look after them during the period he was meant to spend time with them.”; and at [60] the wife says “On both occasions when the children have spent extended time with [Mr Saintclaire] he has engaged the services of babysitters for periods of 8-10 hours per day for the majority of the time the children have been in his care.”

18. The husband says at [46] of his affidavit filed 16 October 2013 ‘…[i] admit that there was one occasion when I had to arrange for a nanny at short notice. I was only given 40 minutes notice of the children travelling to Sydney last school holidays, and as I had a working commitment at that time I arranged for the Nanny, [Ms F], who has known the children since birth and with whom the children have an existing and close relationship.”

19. The husband also asserts at [52] although the nanny assists him from time to time, he remains primarily available to care for the children when they are with him.

20. I am not prepared to make order 4.

21. The wife’s application for order 7 seems to seek an order that the husband comply with an existing order. Such an application is otiose.

22. In respect of an order that neither child be exposed to any adult behaviour of a sexual or inappropriate nature (order 8), the wife gives no evidence to support this in her affidavit.

23. In relation to order 9 sought by the wife, she gives the following evidence in her affidavit to support an order that the husband be restrained from taking the children overseas unless the court is satisfied he has developed an appropriate parental relationship with both children: [58] “[G] has returned from her extended time with her father in an upset state and has experienced nightmares, is unable to settle on her own and wets her pants” and at [55] she asserts “When I have spoken to [G] while she has been spending time with [Mr Saintclaire] on extended periods she has been distraught and crying, requesting she be able to come home”.

24. The husband asserts he has not observed that behaviour when the children have been in his care. He also says that the children are not unsettled when in his care and there have been no incidents when [G] has wet her pants while with him since the October 2012 orders were made.

25. The wife also refers to frequent occasions where the children have invited the husband to events and he has not attended, and also, that the husband has not made himself available to spend time with the children on several occasions. In response, the husband says in his affidavit filed 16 October 2013 that he has never received invitations and has been unaware of any occasions the wife refers to and he also asserts he has forwarded proposals to the wife for the children to spend time with him during the June school holidays.

26. I am unable to resolve differences in the evidence. The wife has not established that the husband is a flight risk. Without more, I would not make order 9.

27. As to the specific order sought in relation to sun cream (order 10), the wife asserts the children have been returned to her on at least three occasions with sun burn. The husband says he always applies sun cream to the children and makes sure they wear hats and appropriate clothing in the sun. He concedes that there was a one off occasion on an unseasonably 45 degree day in Town D, at the pool, where L sustained a small degree of sun burn. I am unable to resolve the differences in that evidence and I will not make order 10 as sought.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 July 2014.

Associate: 

Date:  25 July 2014