Seaton and Sedgwick

[2016] FCCA 1749

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEATON & SEDGWICK [2016] FCCA 1749

Catchwords:
FAMILY LAW – Interim parenting orders – with whom the children live with – with whom the children spend time – where there are allegations made by the father against the mother of alcohol abuse – best interests of the children – partial property settlement.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3)

Applicant: MR SEATON

Respondent: MS SEDGWICK

File Number: MLC 5032 of 2016

Judgment of: Judge McNab

Hearing date: 7 July 2016

Date of Last Submission: 7 July 2016

Delivered at: Melbourne

Delivered on: 7 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Crozier-Durham

Solicitors for the Applicant: Beaumont Lawyers

Counsel for the Respondent: Ms L Colla

Solicitors for the Respondent: Alpass & Associates

ORDERS

1. Until 5:00pm 27 July 2016 or until further order:

   (a)The mother be restrained by herself, her servants and/or agents from removing the children X (“X”) born (omitted) 2009 and Y (“Y”) born (omitted) 2011 (“the children”) from the (omitted) or (omitted) areas or more than 35 kilometres from the residence of the father and from changing X’s school or Y’s kindergarten;

   (b)The children are to live with the father; and

   (c)The father and mother have equal shared parental responsibility for the children.

2. The children spend time with the mother as follows:

   (a)During school term each alternate weekend from the conclusion of school/kindergarten on Friday to 6:00pm each Sunday from 15 July 2016;

   (b)For one half of all gazetted school holiday periods at times to be agreed and in default of agreement for the first half;

   (c)For one half of the long school holidays at times to be agreed and in default of agreement for the first half in off numbered years and the second half in even numbered years;

   (d)From 7pm of Christmas Eve until 3:00pm on Christmas Day in 2017 and in each alternate year thereafter;

   (e)From 3:00pm on Christmas Day until 3pm Boxing Day in 2016 and in each alternate year thereafter;

   (f)From 3:00pm on Christmas Day until 3:00pm Boxing Day in 2016 and in each alternate year thereafter;

   (g)If Mother’s Day falls on a weekend when the children are not otherwise to spend time with the mother from the conclusion of school /kindergarten on Friday until 6:00pm on Sunday; and

   (h)As may otherwise be agreed between the parties.

3. Changeovers occur at the information area in the main street of (omitted) at 5:00pm on Fridays and 6:00pm on Sundays.

4. In the event that Father’s Day falls on a weekend when the children would otherwise be spending time with the mother, the mother’s time be suspended for that weekend.

5. The party who has care of the children forthwith notify the other part of any significant illness or injury suffered by the children or either of them, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other parent to communicate with such professional if necessary.

6. Each of the parties provide the other with their contact address and telephone numbers and inform the other of any change in such address or telephone number as soon as practicable.

7. The father authorise the school attended by X and the kindergarten attended by Y to provide the mother with notices, newsletters, reports, photographs and other information normally provided to parents in relation to children and authorise such bodies to communicate with the other party about the children’s progress.

8. Both parties be permitted to attend/participate in school or extracurricular activities, functions and/or events normally attended by parents.

9. The father forthwith:

   (a)Provide a withdrawal of Caveat No. (omitted) encumbering the property at Property H (“Property H”);

   (b)Sign all documents necessary to authorise the (omitted) Bank to discharge Mortgage No. (omitted) encumbering Property H if same has not already occurred; and

   (c)The sum of $60,000 from the proceeds of sale of Property H be paid to the mother forthwith the balance to be held in an interest bearing account by the solicitors for the wife in trust and not to be released to either party until further order, with such sum to be characterised by this honourable Court by way of partial payment of the property settlement between the parties. There be no access by either party to the balance of the sum until further order.

10. Pursuant to section 11F of the Family Law Act 1975, the parties and the children X (“X”) born (omitted) 2009 and Y (“Y”) born (omitted) 2011 (“the children”) attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference on 27 July 2016 and:

    (a)the father and the children to attend at 9:00am; and

    (b)the mother to attend at 10:00am,

    at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.

11. Pursuant to Order 12 above the Family Consultant shall provide an oral report on 27 July 2016 at 2:15pm in the duty list at the Federal Circuit Court at Melbourne.

12. The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Deputy Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on 13 October 2016 at 9:15am.

13. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 14 days before the conciliation conference, copies of:

    (a)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

    (b)the financial statements relevant to the investments of each of the parties joint and several;

    (c)details of any entitlement received or expected to be received by either party by way of inheritance;

    (d)details of any shares and/or accounts held by either party in any bank or other financial institution and documents evidencing such entitlements;

    (e)any other document required by way of disclosure pursuant to the Court rules;

    (f)a copy of the actual terms of orders required to give effect to their settlement proposal; and

    (g)written confirmation by each party or their solicitor that:

    (i)all relevant documents have been exchanged between the parties; and

    (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

14. In the event that the matter does not settle at the conference and the parties have not complied with orders 15 (a) to (g), the Registrar is directed to contact the chambers of Judge McNab, prior to the end of the Conciliation Conference, in order to urgently list the matter before Judge McNab for further directions and submissions with respect to costs.

15. The matter be adjourned to Federal Circuit Court of Australia on

    
    10 November 2016

    at 10:00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

16. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the Court) AND:

    (a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and

    (b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and

    AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

    (c)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

    (d)the party has first obtained leave of the Court.

17. Not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:

PROPERTY

(a)         a list of the material relied upon;

(b)        a brief chronology listing significant events;

(c)        a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(d)        main contentions on disputes as to:

             (i)     inclusion of items in the   pool; and

            (ii)     the value of times where the value is in dispute.

(e)        list of contributions claimed or contended for and the percentage assessment on contributions contended for;

(f)         list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;

(g)        other relevant contentions to determining a ‘just and equitable’ division of property; and

(h)        the actual orders sought.

PARENTING

(a)         a list of the material relied upon;

(b)        a brief chronology listing significant events;

(c)        a list of significant factual issues requiring determination;

(d)        a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (sec 60cc factors);

(e)        a list of the considerations relevant to the operation of s.65daa;

(f)      a list of other contentions relevant to the decision; and

 (g)       the actual orders sought.

1. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.

2. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the  Family Law (Fees) Regulation 2012.

3. Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

1. 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 Seaton & Sedgwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5032 of 2016

MR SEATON

Applicant

And

MS SEDGWICK

Respondent

REASONS FOR JUDGMENT

Background

1. I have before me an application in a case filed 27 June 2016 filed by the respondent father. The orders sought are set out in the application but the principle order that concerned the court today was Order 1 of the application that sought to restrain the mother from relocating with the children of the relationship X (“X”) born (omitted) 2009 and Y (“Y”) born (omitted) 2011 (“the children”) to (omitted) Victoria, or any location more than 35 kilometres from the residence of the father. Further orders sought were for the children live with the father; that the mother and father retain equal shared responsibility for making decisions with regard to the children. Consequential orders sought in relation to time that the mother would spend with the children are set out in the application.

2. The evidence filed on behalf of the father that I have to consider in this application is the affidavit of Mr Seaton sworn 31 May 2016; an affidavit of Mr Seaton sworn 27 June 2016 and an affidavit of Mr Hume, the father’s solicitor, sworn 27 June 2016. The affidavits disclose that over a period of time since at least March 2016 the father by himself or his solicitors have been seeking response from the mother that she not relocate with the children to (omitted). A letter dated 2 March 2016 from the father’s solicitor sought undertakings that she not, save for the written consent of the father or by court order relocate with the children to (omitted) or any other area significantly different from the area in which the children currently live. There was a series of requests for such undertakings, none of which were forthcoming.

3. I have also had regard to the affidavit material sworn by the mother which is an affidavit of the 9 June 2016 and an affidavit of 1 July 2016. In the affidavit of 9 June 2016 she deposes to the fact that she sold the former family home in Property H (the “Property H”) on the 21 May 2016 and the sale was scheduled to take place on 5 July 2016. She also deposes in her affidavit that her partner Mr D had looked around for a property in (omitted) and they signed a contract purchasing a property in that town in May this year. That property is to settle on 5 July 2016.

4. The affidavit of the father of the 31 May 2016 made some allegations that the mother had a problem with alcohol. The mother in her affidavit of 9 June 2016 denied the allegation and indeed accused the father of having an issue with alcohol and I refer to paragraph 43 of her affidavit in that regard.

5. The affidavit of the father sworn 27 June 2016, made specific allegations in respect to the mother’s problematic consumption of alcohol and to a great extent those allegations have not been responded to. Furthermore, there is no answering material to principal allegations that there have been decisions made by the mother in relation to where the children are to live without any consultation with the father. There have been significant decisions made in relation to the property of the relationship without any consultation with the father. Looking at this matter on an interim basis only, in my view there is significant and unchallenged evidence that the wife has not respected the obligations that come with equal shared parental responsibility.

6. In considering the application I have regard to the best interests of the children and specific regard to the matters arising out of s.60CC(2) of the Family Law Act 1975 (“the Act”) which provides:

   (2)   The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. There are additional considerations set out at s.60CC(3) of the Act.

8. In relation to this matter, the submissions made by counsel for the father concentrated on the failure on the part of the mother to make any attempt to consult with the father before making the unilateral decision to relocate the children to either (omitted) or in the interim to (omitted). The father’s counsel emphasised that the move to (omitted) or (omitted) would not only be a move into a new family, into a new home, into an new school and kindergarten, it also created a circumstance where the father had to travel a significant distance in order to maintain contact with the children. The submission was also made that he was in a position to look after the children given the hours that he worked, the assistance he had from his partner, the maternal grandmother of the children and the sister of the mother (all of whom live nearby to the father).

9. Reference was made, with some restraint and sensitivity in my opinion, to the matters that were raised in the affidavit of Mr Seaton of

   
   

   27 June 2016 where he referred to text messages from the mother on

   
   

   21 June 2016. They showed that the father had been contacted by the mother and told that she would agree to the children living with him permanently, provided that he agreed to settle all the property matters between them on the basis that she paid him the sum of $20,000.

10. Further, there is the evidence of text messages between the mother and her sister to the effect that she was going to give “custody” of the children to the father. At paragraph 6 of her affidavit the mother says those texts were sent at a very low point in her life.

11. Ms Colla, counsel for the mother, made submissions that:

    a)there were no allegations that the children were not adequately cared for either prior to or post separation;

    b)there are no allegations of abuse made by either of the parents against the other; and

    c)there has been a level of cooperation between the parents in relation to organising access of the other to the children; and

    d)It was significant that the father has not sought any undertaking in his proposed orders that the mother refrain from consuming alcohol either in the presence of the children or otherwise.

12. Weighing up all those matters and taking into account all the material that has been filed on behalf of the mother in the affidavit, in my view, it is appropriate to order on an interim basis that the children reside with the father in accordance with the orders proposed by the father which have been provided to the court. I think it is appropriate that the orders in relation to interim parenting that are set out in paragraphs 1 to 12 of that minute be made. I make those orders having regard to the matters that I am required to have regard to in s.60CC(3) and I have averted to those matters in my reasons and in the discussion with counsel for the parties prior to these reasons being delivered. I accept the submission, made with some force by counsel for the mother, that as the children reside with the mother, it would be a significant step to interfere with that arrangement even on an interim basis.

13. In my opinion, it is in the best interest of the children that the orders proposed by the father be made for the reasons that I have outlined below.

14. I make this finding on the basis that:

    a)the mother has, in relation to the living arrangements of the children, unilaterally made very significant decisions about where the children are to live without consultation with the father. This was done in circumstances where the father was clearly interested, concerned and affected by the issue;

    b)the relocation of the mother to (omitted) is very significant for all concerned but particularly the children for the reasons outlined in paragraph 8 above;

    c)the wife apparently has a significant problem with alcohol which she has not addressed in her evidence. Nor does she put any material before the court that would adequately allay the father’s or the court’s concerns about her alcohol use;

    d)the mother has previously indicated to the father that the children should live with him;

    e)the father has given evidence that he is able to obtain assistance from his partner, the maternal grandmother of the children and the wife’s sister and the children will be in a settled environment; and

    f)these orders are interim only and the matter is before the Court on 27 July 2016 for the purposes of obtaining a s.11F memorandum and parenting issues can be revisited on that date.

Property

1. The mother proposed orders in relation to dealing with proceeds of sale of the Property H property. In my view, it is appropriate that the sum of $60,000 from the proceeds of sale of the Property H property be paid to the mother forthwith and the balance to be held on trust in an interest bearing account by the solicitors for the mother and not to be released to either party until further order. This sum is to be characterised by the Court as a partial payment of the property settlement between the parties. There be no access by either party to the balance of the sum until further order. I explained the rationale for this order in the course of the hearing. The wife has established the efficacy of making such an order, that being that the sum was required to complete the purchase of the (omitted) property and it does not prejudice the husband’s interests in the property of the relationship.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 21 July 2016