FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALDE & SALDE (No.2) | [2019] FCCA 1573 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – conduct of parents –- inter parental conflict – allegations of family violence – significant absence of time spent between the children and father – credit of parties – evidence – risk to children – relationship of children with each parent – therapeutic engagement – views of the children – substantive interim orders – PROPERTY – Final property adjustment – section 75(2) adjustments – consideration of financial and non-financial contributions – Robb & Robb argument. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 4AB, 10B, 10D, 10E, 60B, 60CA, 60DAC, 60CC, 61DA, 65DAA(5), 65DA, 68P, 75(2), 78, 106A Evidence Act 1995 (Cth) ss.135, 136 |
| Cases cited: Stevenson & Hughes (1993) 16 Fam LR 443 Salah & Salah [2016] FamCAFC 100 Kennon & Kennon [1997] FamCA 27 |
| Applicant: | MR SALDE |
| Respondent: | MS SALDE |
| File Number: | WOC 615 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 27 March 2019 |
| Date of Last Submission: | 27 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Losko Stacks Heard McEwan |
| Solicitors for the Respondent: | Ms Monastiriotis Nexus Lawyers |
| Solicitors for the Independent Children's Lawyer: | Mr Horsley Johnson Horsley Lawyers |
ORDERS
That all prior parenting orders with respect to the children:
(a)[X] born … 2001;
(b)[Y] born … 2006; and,
(c)[Z] born … 2010
shall be and are hereby discharged.
Note: No orders are made with respect to [X].
THE COURT ORDERS PENDING FURTHER ORDER:
That the children’s mother Ms Salde shall have sole parental responsibility with respect to major issues decisions relating to [Y] and [Z].
[Y] and [Z] shall live with their mother Ms Salde.
That [Y] and [Z] shall, subject to the balance of these orders, spend time with their father Mr Salde as agreed between the parents from time to time.
[Z] shall then spend time with her father Mr Salde for such periods and with such frequency as can be accommodated by the Town B Children’s Contact Centre and to facilitate such time:
(a)Each parent shall, within 72 hours, contact the Town B supervised contact Centre to arrange the first available and offered intake appointment and shall then attend that appointment and complete all necessary intake and assessment processes required by and to engage the Centre
(b)Ms Salde shall deliver [Z] to and collect [Z] from the Town B Contact Centre at such times and dates as advised by that Centre;
(c)Each parent shall pay one-half of any fees charged…
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- AGLC
- Salde and Salde (No.2) [2019] FCCA 1573
- Case
- [2019] FCCA 1573
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the legal issues surrounding the discharge of prior parenting orders and the establishment of new arrangements. This included deciding on sole parental responsibility for major decisions concerning [Y] and [Z], their living arrangements, and the extent of time they would spend with their father. Furthermore, the court needed to address the sale of the jointly owned property, including the process for agreeing on agents and prices, and the distribution of the net proceeds. The court also considered the need for family therapy to repair relationships and the allocation of costs associated with these proceedings and the children's welfare.
Judge Harman discharged all prior parenting orders concerning [X], [Y], and [Z], noting that no specific orders were made regarding [X]. Pending further orders, the mother, Ms Salde, was granted sole parental responsibility for major decisions concerning [Y] and [Z], who were to live with her. Time with their father, Mr Salde, was to be as agreed between the parents, with specific provisions for [Z] to spend time with her father via a supervised contact centre. Both parents were ordered to engage in family therapy with a therapist nominated by the Independent Children's Lawyer (ICL) to facilitate the repair of the children's relationships with their father, with costs to be shared. The court also made final orders regarding communication between the children and their father, supervision of contact with an adult brother, and ongoing parental obligations concerning address changes, notification of injury or illness, school involvement, and refraining from denigrating the other parent or discussing proceedings in the children's presence or on social media.
On a final basis, the court ordered the sale of the Town E property by private treaty, with detailed provisions for agreeing on an agent and price, or for their appointment by the Presidents of the relevant professional bodies if agreement was not reached. Mr Salde was to maintain the property pending sale. Upon completion, the net proceeds were to be distributed in a specific priority: discharge of the mortgage, adjustment and payment of rates, sale costs, a percentage to Ms Salde, a contribution to the cost of a report by Dr F, and the balance to Mr Salde. Each party was also to contribute to a joint account for therapy costs, with any remaining funds to be distributed equally after therapy completion. By consent, each party was to pay a contribution to the ICL's costs. The court declared each party the sole owner of assets in their possession or control. Provisions were made for a Deputy Registrar to sign documents if a party failed to do so, and financial issues were removed from the hearing list, with parenting proceedings adjourned for mention and directions.
Orders
Orders of the court
1.
That all prior parenting orders with respect to the children:
(a) [X] born … 2001;
(b) [Y] born … 2006; and,
(c) [Z] born … 2010
shall be and are hereby discharged.
Note: No orders are made with respect to [X].
THE COURT ORDERS PENDING FURTHER ORDER:
2.
That the children’s mother Ms Salde shall have sole parental responsibility with respect to major issues decisions relating to [Y] and [Z].
3.
[Y] and [Z] shall live with their mother Ms Salde.
4.
That [Y] and [Z] shall, subject to the balance of these orders, spend time with their father Mr Salde as agreed between the parents from time to time.
5.
[Z] shall then spend time with her father Mr Salde for such periods and with such frequency as can be accommodated by the Town B Children’s Contact Centre and to facilitate such time:
(a) Each parent shall, within 72 hours, contact the Town B supervised contact Centre to arrange the first available and offered intake appointment and shall then attend that appointment and complete all necessary intake and assessment processes required by and to engage the Centre
(b) Ms Salde shall deliver [Z] to and collect [Z] from the Town B Contact Centre at such times and dates as advised by that Centre;
(c) Each parent shall pay one-half of any fees charged by the Centre.
6.
Each parent shall attend and cause [Y] and [Z] to attend family therapy with a therapist nominated by the ICL and to facilitate such therapy:
(a) Each parent shall, within 7 days of being notified by the ICL of the therapist nominated by them, contact the nominated therapist and complete all necessary intake and assessment processes required by and to engage the therapist to assist and work with the parties and [Y] and [Z] to repair the relationships between [Y] and [Z] and their father;
(b) Each parent shall attend at such times, dates and places as directed by the therapist;
(c) Ms Salde shall ensure that [Y] and [Z] attend upon the therapist as required by the therapist;
(d) Ms Salde shall do all things within his power to encourage [X] to attend upon the therapist as requested by the therapist (noting that [X] will, by the time therapy commences, be an adult);
(e) Ms Salde shall each pay one half of the total costs of the therapy;
(f) The ICL shall be and is hereby authorised to provide to the therapist a copy of the judgement with respect to these orders.
THE COURT ORDERS ON A FINAL BASIS:
7.
Each parent shall facilitate any request made by [Y] and/or [Z] to communicate with their father Mr Salde or their brother [X] by telephone, email or other means.
8.
The father shall ensure that any contact as may occur between [Y] and/or [Z] and their brother Mr C (now an adult and neither party to or the subject of these proceedings) is supervised by him and that [Y] and/or [Z] are not left alone with Mr C.
9.
That until … 2028 (corresponding with [Z]’s 18th birthday) each parent shall:
(a) Provide to the other parent, not less than 28 days written notice (by email) of their intention to change their residential address and including advice of the address to which they shall be moving;
(b) Notify the other parent forthwith and contemporaneous with the event in the case of either [Y] or [Z] experiencing significant injury or illness or being hospitalised and including sufficient detail and authority to enable each parent to speak with and be provide information by any treating doctor;
(c) Do all things, sign all documents and give all consents and authorities necessary to enable each parent to be recorded with any school attended by [Y] and/or [Z] as a parent and so as to enable each parent to obtain directly from the school any reports, information, photos or other materials they may desire;
(d) Refrain from abusing, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person does so;
(e) Refrain from discussing these proceedings or the content of any document filed or tendered in these proceedings with or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person, save the therapist engaged pursuant to these orders, does so;
(f) Refrain from communicating about the children or these proceedings on any social media platform.
10.
That each of the parties shall forthwith do all things, sign all documents, give all consents, authorities and instructions as are necessary to list for sale an sell the property known as and situated at Street D, Town E by private treaty and at a price, using an real estate agent and solicitor/conveyancer agreed between them and, further and in the event that the parties have not agreed on:
(a) A listing agent by close of business 19 April 2019, then either party may make application to the President for the time being of the Real Estate Institute of NSW for the appointment of an agent and upon the President making an appointment each party shall then do all things, sign all documents and give all consents and authorities as are necessary to retain and instruct that agent including signing a listing agreement and providing such co-operation and assistance as is necessary to allow the property to be listed, advertised, marketed and shown;
(b) A listing and sale price by close of business 19 April, 2019, then either party may request the listing agent to provide written advice as to a realistically achievable sale price on the basis of an eager but not over anxious vendor and the property shall then be listed for sale at a price that is 105% of the price advised by the agent (or at the price at the lower end of any range of price) and the parties shall accept any offer for purchase at or in excess of 95% of the listing price;
(c) A solicitor or conveyancer by close of business 19 April, 2019 then either party may make application to the President for the time being of the Law Society of NSW for the appointment of a solicitor to act on sale and upon the President making an appointment each party shall then do all things, sign all documents and give all consents and authorities as are necessary to retain and instruct that solicitor including signing a costs/retainer agreement and providing such co-operation and assistance as is necessary to allow a contract for sale to be prepared and the property to be sold and conveyed.
11.
That pending the sale of the Town E property Mr Salde shall:
(a) Maintain the property in a neat, fit and proper state of repair and attend to any necessary maintenance and repairs of the property as may be necessary to maintain the property;
(b) Keep the property insured for its full insurable value at all times;
(c) Make all principal and interest payments as and when they fall due with respect to the mortgage encumbering the property;
(d) Make all payments as and when they fall due with respect to Council and Water Rates relating to the property.
12.
Upon completion of any sale of the Town E property as required by these orders, then each of the parties shall do all things, sign all documents and give all consents, authorities and instructions as are necessary to then cause the net proceeds of sale resulting to be distributed as follows and in the following priority:
(a) In discharge of the mortgage encumbering the property;
(b) In adjustment and payment of Council and Water rates;
(c) In payment of sale costs including agent’s commission, auctioneer’s fees and solicitor/conveyancer fees.
(d) In payment to Ms Salde of an amount equal to 37.7% of the nett proceeds then remaining and provided that Ms Salde shall give all instructions and authorities necessary to cause a sum of $5,000 and $1,650 respectively ($6,650 in total) to be deducted from those monies and applied in accordance with orders 14 and 15 hereof;
(e) In payment to Ms Salde of a sum equal to one half of the cost of the report of Dr F and in compliance with order 1(d) of the orders made by consent 23 October, 2017;
(f) As to the balance then remaining to Mr Salde and provided that Mr Salde shall give all instructions and authorities necessary to cause a sum of $5,000 and $1,650 respectively ($6,650 in total) to be deducted from those monies and applied in accordance with orders 14 and 15 hereof.
13.
That upon completion of the sale of the Town E property each party shall cause a sum of $5,000 each ($10,000 in total) to be placed into an account to be opened in the joint names of the parties and which account shall require the consent, authority and/or signature of both parties to effect withdrawals therefrom and:
(a) Those funds shall be used for the sole purpose of paying the costs of the therapist to be engaged pursuant to these orders such that each party shall be restrained from dealing with those monies other than for that purpose; and,
(b) Upon completion of the therapeutic process, as confirmed in writing by the therapist, and in the event that any funds remain within the account then each of the parties shall do all things, sign all documents and give all consents and authorities necessary to close the account and to distribute any remaining funds equally between the parties.
14.
By consent, each party shall, within 72 hours of settlement of the sale of the Town E property, pay to the Legal Aid Commission of NSW a sum of $1,650 as a contribution to the costs of the Independent Children’s Lawyer.
15.
Pursuant to s78 of the Family Law Act 1975 each party shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the other of:
(a) Any motor vehicle in their possession or registered their name.
(b) Any funds held by them whether in cash or on deposit with any financial institution.
(c) All items of furniture, furnishings and contents in respect to custody and control.
(d) All and any items of personalty to other property of any nature in the possession, custody or control of each party respectively.
16.
In the event that either party should fail, neglect or refuse to sign and document required by or to give effect to these orders that, pursuant to s.106A Family Law Act 1975, a Deputy Registrar of the Federal Circuit Court Parramatta shall be and is hereby authorised and directed to sign such document on behalf of and in the place of the party who has failed, neglected or refused to sign and to thereafter do all acts and things necessary to give force, effect and validity to that document.
17.
Remove all financial issues from the list of cases awaiting hearing.
18.
Adjourn balance of parenting proceedings for mention and directions 9:30am 20 September, 2019.
19.
NOTE: On 20 September 2019 and if all parenting issues are not resolved, directions will be made to advance the proceedings to further and final hearing date/s as soon as practicable.
20.
Pursuant to s.65DA(2) and s.62B, 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 parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
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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