SELKIRK & SELKIRK
[2018] FamCA 852
•24 September 2018
FAMILY COURT OF AUSTRALIA
| SELKIRK & SELKIRK | [2018] FamCA 852 |
| FAMILY LAW – CHILDREN – Interim Parenting – Whether the children should spend more time with one parent – Where there are issues of past drug usage – Drug Testing – Ownership of Embryos. FAMILY LAW – PROPERTY – Whether there should be an interim Property distribution. |
| Family Law Act 1975 (Cth) |
| Bearup and Bearup (1993) FLC 92-412; [1993] FamCA 72 Zschokke and Zschokke (1996) FLC 92-693 |
| APPLICANT: | Ms A Selkirk |
| RESPONDENT: | Ms B Selkirk |
| FILE NUMBER: | SYC | 7972 | of | 2016 |
| DATE DELIVERED: | 24 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 17 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson & Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | SWAAB Attorneys |
COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Tiyce & Lawyers |
Orders
The Amended Application in a Case filed by the applicant on 1 August 2018 and the Response to an Application in a Case filed by the respondent on 6 June 2018 are dismissed.
The orders of 4 April 2017 and 13 June 2018 are to continue pending further order subject only to any variation of same set out in these orders.
Pending further order neither parent is to allow the children or any of them to view or participate in any manner in the use of any video game which is rated greater than “PG”. Where any of the children is permitted to participate in the use or observation of a video game which is rated “PG” then one of the parents must be present during the whole of the time any of the children is engaged in the use or observation of the video game to ensure any part thereof is excluded from view by any of the children, should the parent determine it is not age appropriate for the children.
I expedite the hearing of the final Application and Response to the Final Application in this matter.
The court recommends that the parties forthwith appoint a single expert, being a duly qualified child and family psychiatrist, to prepare a Family Report for the final hearing.
The court recommends that if the case has not been allocated a first day hearing date by the end of March 2019, the parties jointly agree to undertake further drug testing in the manner prescribed by the order of 13 June 2018 on the first Monday in April 2019 and the first Monday in July 2019.
Pending further order the respondent is restrained from having any of the children share her bed whilst there is any other adult person in that bed with her.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Selkirk & Selkirk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7972/2016
| Ms A Selkirk |
Applicant
And
| Ms B Selkirk |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the Court is one calling for a variation to consent interim parenting orders made by Justice Rees on 4 April 2017.
The applicant is the mother, Ms A Selkirk. The respondent is also the mother, Ms B Selkirk. The children are X (“X”) born … 2010; Y (“Y”) born … 2010 (“the boys”) and Z (“Z”) born … 2014, (collectively “the children”). The applicant gave birth to all three children. X and Y were born using an embryo biologically that of the applicant and Z born using an embryo biologically that of the respondent.
Prior to the orders of 4 April 2017, the children had been living with the applicant.
The orders made on 4 April 2017 required the children live with the applicant and spend time with the respondent. Other provisions were made.
Background
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The applicant was born in 1974 and is 44 years of age. The respondent was born in 1974 and is also 44 years of age.
The parties’ relationship commenced in 2006 and they began cohabitating in early 2007. They were married in 2008 in Country B and separated in October 2016.
There were three children of the relationship. X and Y, born in 2010, born to the applicant, from her embryo and an anonymous sperm donor. Z, born in 2014, was born to the applicant, from the respondent’s embryo, and from the same anonymous sperm donor.
The applicant resides at the former matrimonial home, at C Street, Suburb D.
The respondent resides at E Street, Suburb F when she has the children. She and the children share the residence with Ms G, her colleague and friend. When she does not have the children, she resides at a friend’s place in Suburb H or with Ms G.
Issues
The issues identified at the hearing were:
Ongoing illicit drug testing as established through the consent orders of 4 April 2017;
The nature of the respondent’s living arrangements and whether it should impact the existing orders for the children to live with the respondent; and
The existing restraint prohibiting the children being exposed to M rated video games and whether it should be discharged.
Further issues identified, but left for resolution at the final hearing were:
The sale of the former matrimonial home;
The transfer of respondent’s embryos at Fertility First.
Relevant Law
Legal principles
In relation to the process to be adopted by the court in considering interim parenting orders, the Full Court has said in Goode & Goode (2006) FLC 93-286 the following:
How should interim proceedings be conducted?
[81] In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Evidence
The applicant’s evidence
The applicant sought to rely upon the following documents:
·Applicant’s Amended Initiating Application filed on 15 December 2016;
·Applicant’s Amended Application in a Case filed 1 August 2018;
·Applicant’s affidavit filed 8 August 2018, including documents tendered as exhibited to the affidavit;
·Applicant’s affidavit filed 15 August 2018;
·Affidavit of Ms J, mother of the applicant, filed 1 August 2018;
·Financial Statement of the applicant, filed 12 June 2018;
·Child Responsive Program Memorandum, filed 21 June 2017.
I permitted the applicant to rely upon all the above listed documents.
The applicant relied on her affidavit sworn on the 8 August 2018, and her affidavit sworn 15 August 2018, which set out the following evidence.
The applicant set out events which occurred in the lead up to the parties’ final separation, which included illicit drug use by both parties. The applicant reported that from 2015, the parties used illicit substances together on a number of occasions. She reported that the respondent purchased increasing quantities of cocaine, and reportedly sold both cocaine and Oxycontin during 2016. At home, these drugs were kept in a safe, or locked filing cabinet, to which the applicant purportedly did not have access. In July of 2016, the applicant made clear to the respondent that she did not want illicit substances in the house.
The applicant reported concerns that the respondent had developed a serious drug problem. These concerns were from a number of hair follicle tests which had returned positive results for cocaine. The applicant said she was concerned the respondent’s Post-Traumatic Stress Disorder made her particularly vulnerable when using these illicit substances, and might therefore impact her capacity to care for the children.
The applicant said she had not used illicit substance since October 2016. She annexed to her affidavit of 8 August 2018 a copy of all random drug and alcohol testing undertaken during the period of Interim Orders. These tests sufficiently show the applicant was not under the influence of alcohol or illicit substances during the time such tests were undertaken.
The applicant set out her concerns in relation to the respondent indulging in continued drug use. Her complaints related to:
·The respondent having not undertaken her drug tests in a ‘controlled, chain-of-custody environment’;
·The drug tests returning a positive result for cocaine in June, September and December of 2017, and March of 2018; and
·The possible dilution of urinalysis testing on 8 January 2018.
The applicant said that she believed the respondent has ceased using cocaine following the applicant filing the current Application in a Case.
The applicant said that all her drug tests carried out as prescribed by the court orders have proved negative to illicit substances. She seeks to be now relieved from having to take further testing.
The applicant set out the history of her own and the respondent’s drug use.
The drug testing orders which are in place, the applicant says are either not being complied with by the respondent or need to be further defined to ensure the testing is effective. The applicant alleges the respondent is not engaging in drug testing which are not secure “chain of custody” tests. The applicant alleges she is aware that the respondent’s friend Ms G has also in recent times participated in hair follicle drug testing. She is concerned this means Ms G may have been using/consuming illicit drugs.
The applicant set out her concerns about the current living circumstances of the respondent and in particular whether the accommodation is adequate for the children. She makes complaints in relation to:
·The accommodation provided in the form of the 1 bedroom Suburb K Unit, which houses the three children, the respondent, Ms G, and animals.
·The sleeping arrangements with Ms G when the children are with the respondent.
·The close proximity of living room to the television, without an internal door, will expose the children to scary movies or noises from the television.
·The children are permitted to watch or participate with games on audio visual devices which are age inappropriate.
·The respondent’s living arrangement does not provide a quiet space to sleep and undertake homework tasks.
The applicant made further complaints regarding the respondent’s parenting:
·The children are tired and lacking in sleep, with the use of iPad and games being allowed in bed.
·Lack of sleep has had detrimental impacts on the children’s behaviour, with the children appearing agitated, emotional and resulted in the use of inappropriate or aggressive language.
·The children have experienced nightmares following exposure to “scary movies.”
·Contrary to interim orders, the children have been exposed to, or played video games or movies rated “M” or above.
·The respondent denigrated the applicant in front of the children.
The applicant’s evidence in relation to the parenting orders sought to be varied is, in my view, excessive and provided in far more detail than is necessary to support an interim application which, on the criteria adopted by the court in Sydney for “duty list matters” i.e., can be determined within two hours of hearing and reading time.
The applicant put forward the following reasons as to why the Suburb D property should be retained.
·The children are settled in the property, and are within walking distance to close friends and their school.
·It provides the only stable living environment.
·The Suburb D property is in the local catchment area for Suburb D Public School and Suburb D Arts School. All three children are presently enrolled in Suburb D Public School for 2019, which is conditional on their living in the catchment area.
·The applicant seeks a final order for the property to be transferred to her.
·The applicant’s financial contributions to the acquisition, renovation and maintenance of the property have been extensive and far greater than those of the respondent.
Again, the evidence relied upon by the applicant in her affidavit in support of her case to oppose the sale of the former matrimonial home pending the final determination is excessive and far too detailed for an interim application.
The applicant made further complaint regarding the orders sought by the respondent with regards to the stored embryos.
·She asserts that both parties signed a document stating that in the event of separation, the embryos would be discarded and no longer used by either party.
The affidavit of the applicant’s mother confirms the applicant’s assertions about contributions made of a financial nature during the parties’ cohabitation and marriage. There also support for the applicant’s assertions on parenting matters.
The Amended Initiating Application filed by the applicant on 3 April 2017 seeks parenting and property orders. The property order sought includes a transfer of the Suburb D property to the applicant.
The Financial Statement filed by the applicant on 12 June 2018 states an income of $913 per week. Of that sum $621 is sourced from Government benefits. The applicant receives child support of $290 per week.
The respondent’s evidence
The respondent provided a list of documents she sought to rely upon. Those documents are as follows
·Amended Response to Initiating Application filed 29 March 2017;
·Response to Application in a Case filed 6 June 2018;
·Affidavit of the respondent filed 1 August 2018;
·Affidavit of the respondent filed 16 August 2018;
·Affidavit of Ms G filed 1 August 2018;
·Respondent’s Financial Statement, filed 6 August 2018;
·Report of Dr L dated 11 June 2018;
·Child Responsive Program Memorandum, filed 21 June 2017;
·Affidavit of the applicant filed 22 December 2016 paragraph 60;
·Letter lifted from N Court File signed by Leading Senior Constable M.
The respondent was permitted to rely upon these documents.
The respondent relied on her affidavit signed 3 July 2018 and filed 1 August 2018, which set out the following evidence.
The respondent reported concerns about the applicant’s former drug use, which included a history of drug addiction to heroin and amphetamines. The respondent admitted to the use of cocaine together prior to their separation, but expressed concerns following an incident in which the applicant used cocaine when caring for the children alone.
The respondent described the accommodation which she currently enjoys when the children stay with her. The property is owned/rented by the respondent’s friend Ms G. The respondent is satisfied the overnight facilities in the accommodation are satisfactory for the children and herself.
The accommodation the respondent currently has for the children is temporary.
The respondent reported she had not used any illicit drugs since October 2016, and says that the hair follicle analysis that tested positive for cocaine in March 2017, June 2017, September 2017, December 2017 and March 2018, were misleading results.
The respondent denied allegations that the drug testing from April 2017, which tested negative to cocaine and steroids, did not follow the ‘chain of custody’.
The respondent said that the hair follicle testing for 14 December 2016 and 1 March 2017 produced a positive result for cocaine and cocaine metabolites. The tests dated 1 June, 1 September and 1 December 2017 and 1 March 2018 showed positive result for cocaine but not cocaine metabolites. The respondent cannot explain why that is, given she has not ingested the drug since October 2016.
The respondent undertook further testing on 26 April 2018 and that proved negative to cocaine and steroids. That test was able to retrospectively test to 19 July 2017. Such a result was contradictory to the positive results which the respondent had produced during that period as above recited.
On 28 May 2018 McClelland J made an order appointing Dr L as a single expert on the topic of drug testing.
On 13 June 2018 further consent orders were made in relation to drug testing. The orders numbered 24 and 25 of 4 April 2017 were discharged and further order for each of the parties to undergo three centimetres of hair strand testing for detection of cannabinoids, amphetamines, methamphetamines and opiates. The testing was to take place on 1 September 2018 and 1 December 2018.
The respondent set out what occurred with the collection of hair from herself for testing on 26 April 2018. The hair sample was collected by Dr O. After collection the sample bag was sealed and signed and then posted by the respondent (via her friend Ms G) to the testing site.
The respondent addressed her use of video games. She likes to play video games with the children and they seem happy to join in. The respondent said that prior to separation the applicant and she allowed the children to watch and play some “M” and “R” rated video games.
The respondent said that on 10 July 2016 the applicant raised with her a concern about the boys playing “M” rated games. The applicant asked that the boys only play the games under the respondent’s supervision. Since that time the respondent said that is what has happened.
The respondent seeks to continue allowing the children to play the video games which she identified in her affidavit. She said ‘“video gaming” has become an integral part of the boys’ social networks.”
The respondent sought orders for the sale of the former matrimonial home, stating she was unable to improve her financial circumstances without access to the equity she owns in the house.
She was concerned that expenses for the Suburb D premises were paid out of a joint account that has been substantially diminished since the orders were made. Expenditure includes:
·Mortgage repayments (interest only);
·Home and contents insurance;
·Y and X’s occupational therapy and speech therapy costs;
·Internet;
·Electricity;
·Gas;
·Water; and
·Council rates
The respondent obtained an appraisal of the former matrimonial home. If sold at lowest estimate, there would be a $1,718,752.87 surplus after sale, and once the mortgage was discharged. She sought a sum of $140,000 be released to both parties, by way of partial property settlement.
The respondent believed she could find a multiple bedroom property in close proximity to the children’s existing schooling.
The respondent outlined the loans she had undertaken this year. On May 30 2018, the respondent used Ms G’s credit card to pay $3000 for hair follicle testing. She paid an additional $366 for a specialist doctor’s consultation on 20 June 2018.
On 13 June 2018, the respondent’s grandmother, Ms P, loaned the respondent $10,000 for legal fees pursuant to these proceedings. As the cheque was not able to clear in time for the interim hearing, Ms G loaned the respondent an additional $10,000. These funds actually belonged to Ms G’s brother.
Once Ms P’s funds cleared, the respondent immediately transferred the $10,000 back to Ms G. Ms P has since loaned the respondent an additional $45,000 that must be repaid as soon as possible. The respondent noted that, if she included the funds lent to the applicant and respondent during their relationship, the respondent now owed Ms P approximately $317,855.
The respondent raised concerns about the current orders in place regarding the use of video games that have a “M” rating. Prior to separation, she and the applicant had allowed the use of these video games with careful parental supervision.
She noted that video games are an important shared interest between herself and the children. While she noted that video games with an M rating could cover a wide range of content that may – or may not – be appropriate, she sought orders that would allow her to apply parental discretion in what games the children may play.
The respondent reported that she is available to care for the children on Saturday mornings. She notes that at present, the children are cared for by a nanny until the respondent collects them at 12.00 p.m.
The respondent sought orders to have her embryos held at Fertility First to be transferred back to her name.
·She was recently diagnosed with low-grade squamous intraepithelial lesions (cancerous cells) on her cervix.
·It was recommended by medical professionals that should she decide to have another child, she should use embryos created during the IVF egg collection at age 39, to reduce the risk of birth defects.
·Should the respondent decide to have a child, it was in her view that it was in the children’s best interests for them to have siblings that were genetically related to them.
Submissions
The applicant’s submissions
The applicant submitted that existing parenting orders, made by consent on 4 April 2017 should be temporarily suspended pending such time that the respondent gained more suitable accommodation arrangements.
She submitted that the respondent’s current accommodation in Suburb K, which she shares with Ms G when she has the children, is not suitable.
The appellant relied on the case of Bearup and Bearup [1993] FamCA 72, which stipulated that utmost caution must be exercised in considering the sale of matrimonial property prior to hearing substantive applications. As the applicant has sought, since the initiation of proceedings, the transfer of the former matrimonial home to her name, any interim decision regarding the property would likely be an order against her.
The applicant expressed concern at the positive drug test results.
The applicant further submitted concerns regarding the chain of custody during such testing. She said the 9cm hair follicle tests, intended to test for illicit substances back to 2017, gave different results to drug tests taken during 2017, and thus raised concerns about the legitimacy of the results. She submitted the chain of custody of the hair samples was unsound, with the respondent taking possession of the sample before laboratory testing. Earlier samples covering the exact same period produce a positive samples, and this one (with questionable chain of custody) produced a negative result.
As a result, she submitted there should be a further order that if, at any time, the respondent tests positive to an illicit substance in ongoing drug tests, the respondent’s time with the children should cease.
As for further orders sought by the respondent, particularly in regards to property orders, the applicant relied on the case of Marello & Marello (No. 2) [2011] FamCA 799. She submitted that the party seeking discharge or modification of an undertaking given at an interlocutory stage of proceedings carries the onus to establish that the continued enforcement of the undertaking would be unjust in the circumstances of the case. Justice Kent noted in that case that one’s starting point must be that the correctness of the undertaking when given is assumed, and implied a strong supposition that orders originally agreed to should remain
Besides the change of parenting agreement as a result of the drug test results and accommodation, the applicant hoped to maintain the majority of the consent orders, with particular regards to the financial and property agreements.
She noted that, with regards to the injunctive order, that required the respondent to remain 25 meters from the former matrimonial home, provided her comfort, and sees no reason why that order should be set aside prior to the final hearing.
She sought a change in parenting orders, partly due to the positive drug test results. She submitted that the report omitted to outline the probability that a positive results was caused by reasons other than taking the illicit substances. She sought ongoing drug testing, with the respondent’s time with the children conditional on a negative result using the correct chain of custody during testing.
The applicant submitted that the respondent’s outline of the loan agreement with her grandmother did not reconcile with her understanding of the loan agreement.
The respondent’s submissions
The respondent address the existing consent orders from 4 April 2017. She noted that, at the time they were entered into, the children were a lot younger than they are now. It was clearly the intention of both the parents that the children should spend regular time with both parents.
She emphasised that the drug testing was initiated by herself, noting the applicant’s struggles with drug addiction in the past. The respondent’s concern lead her to seek drug testing of both parties. Both the respondent and applicant have been frank about their drug use in 2016.
The respondent proceeded to provide reasonable explanations for the positive drug test results tendered before the court. The applicant and respondent were tested in different facilities. The respondent relied on the expert report of Dr L, who highlighted the different levels that each lab had in returning a positive or negative drug test result.
While the respondent accepts that the test from December 2016 returned a positive result for cocaine and cocaine metabolites – as was expected due to recent illicit drug use with the applicant – the second test in March 2017 showed substantially reduced amounts of cocaine and benzoylecgonine (metabolites). She submits that the number returned in the test result would be considered a negative result at the lab used by the applicant. In the June 2017 test, there were no metabolites present, and even lower levels of cocaine recorded.
The respondent relied on page 10 of Dr L’s report, which stipulated that any measurement of cocaine under 500pg/mg and 50pg/mg of metabolites should be considered a negative result. All of the tests, with the exception of December 2016, showed no cocaine metabolites, and returned a result that would be considered negative by Dr L, or the laboratory used by the applicant.
The respondent also submitted it was of equal significance that these results have been available to the applicant, with no request for change of parenting circumstances.
The respondent noted that submitting a 9 cm hair follicle sample to the lab used by the applicant was designed to alleviate her concerns of any alleged ongoing drug use by the respondent. Further, she submits that she followed the exact same chain of custody as the applicant.
The respondent noted that the application of the applicant sought a cessation the respondent’s overnight stay with the children, on the basis of both the issues with drug testing, and concerns regarding the respondent’s accommodation.
She directed the Court’s attention towards pictures and layout of the accommodation that she stays in with the children, as part of the tender bundle to the affidavit of Ms G.
She submitted that her current accommodation does not pose any risk to the children. She noted that without access to the former matrimonial home, or the equity from that asset, she had limited resources made available to her in which to seek alternative accommodation arrangements.
The respondent recognised that there are factual controversies ongoing which have an impact on the property pool between the parties. However, the respondent also asserted that she needed access to her equity of the property as a means to gain independent accommodation, as per the wishes of the applicant. She is entitled to this property settlement.
As the applicant was using the joint bank account as a means to maintain the former matrimonial home, the respondent believed the applicant had shown no capacity to maintain the property, and thus selling the property was in the interests of both parties.
While not common to make interim property orders to sell the former matrimonial home, the respondent submitted that without evidence regarding the applicant’s ability to retain the property, that it was ‘churlish’ to criticise the respondent’s current housing situation for the children. Therefore, she submitted that the applicant hand over equity, or release the money being used to pay for the mortgage.
Contrary to the wishes of the applicant, the respondent sought more time with the children, to an entire alternate weekend. In recognition that the children are older than when initial consent orders were made, she submitted that adding the Friday night to give the children the whole weekend with the respondent is more tenable. She submitted that there are objective advantages to a more equal division of time between the parents, which might include easier handovers at school.
The respondent also noted that both parents were very involved in day-to-day parenting activities prior to separation.
In addition to the parenting application, the respondent sought the removal of the undertaking of Order 27 from the consent orders of 4 April 2017 that restricted the access of the respondent to the former matrimonial home. She enquired about its continued application in the absence of any evidence for its necessary continuation.
She sought a lift of the video game injunction, noting that government guidelines are designed to allow parental responsibility and discretion. She submitted that she would not expose children to video games that are inappropriate for them.
While recognising that the destruction of embryos being kept at Fertility First was a matter for final hearings, the respondent submitted that the embryos transferred back under her name, after they were mistakenly transferred to the applicant. These embryos are the respondent’s genetic material.
Section 60CC Considerations
Primary considerations
In addressing the considerations set out in sub-section 60CC(2), I take into consideration the terms of sub-section 60CC(2A), which requires me to give greater weight to considerations set out in paragraph (2)(b).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
The evidence shows these parents have agreed to an order for equal shared parental responsibility. That carries with it a presumption which I will address later in these reasons.
The children now live primarily with the application who occupies the Suburb D property which is also a subject of dispute between the parties. The orders of 4 April 2017 provide for the boys to spend time with the respondent each Wednesday from after school until school time the next day and each alternate weekend from midday Saturday to school time on Monday AND for Z to spend time with the respondent from 9.00 a.m. on Wednesday to 9.30 a.m. Thursday each week and each alternate weekend from midday Saturday to 9.30 a.m. on Monday.
In addition to the school term time the respondent is to spend with the children she also spends time with them during school holidays and on other specified occasions.
The time which the respondent spends with the children fulfils the definition of significant and substantial under the Act.
The respondent is seeking an extension of her time with the children to five nights per fortnight. That would be achieved by commencing the children's alternate weekend time with her on Friday after school rather than midday on Saturday. The extension of time is opposed by the applicant.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The applicant raises a complaint that the children are exposed to video games which are not suitable for them to watch/participate in. I understand that the applicant is alleging it is harmful, or may be harmful, to the children. Further, the applicant says that the respondent has returned positive drug tests during the last 12 months and that the children would be at risk if they were in her care while she was affected or using illicit drugs. Both parties have a conceded drug use past.
The current interim orders of the court provide for the parties to each undertake drug testing.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The only reliable evidence as to the wishes of the children is contained in the “Child Responsive Program Memorandum”. The children are aged almost eight and four. The weight the court could give to any reliably reported wishes is limited.
The report provided by the Family Consultant which has been marked as exhibit X2 recites that X is said by the parents to have higher needs than Y, his twin. He is said to display some anger and aggression on occasions “when things don’t go his way.” The respondent denied X displays anger when with her. She says X was traumatised by the incident when the police attended at the former matrimonial home in October 2016.
The Family Consultant reports X perceives his relationship with each of his parents positively. He would like his parents to be back together.
The statements made by X to the Family Consultant about the configuration he would like to live in suggest he has been exposed to parental conflict and discussion about what each would like as an outcome. He told the Family Consultant that “Mummy (the applicant) stole the house from Mum (the respondent) because Mum paid for it.” On their face it is suggested the respondent has been injudicious with her statements about the parental conflict within the hearing of X.
Y is said by the applicant to be thriving at school. The respondent told the Family Consultant that Y is sad because he cannot spend more time with her.
The Family Consultant said Y perceives his relationship with each parent positively. He told the Family Consultant that the respondent lets him play video games any day, however, the applicant only allows it in school holiday time.
Y reported to the Family Consultant that the respondent has to pay rent. He noted that the applicant had more days with the children than the respondent. He told the Family Consultant he thought the children should spend seven days with each parent. He was aware that the respondent would like that but the applicant would not.
Z was seen by the Family Consultant. The applicant told the Family Consultant that Z was excited to spend time with the respondent and excited to return. The respondent said that Z “gets very upset when leaving her.”
The Family Consultant opined that Z feels sad when leaving the respondent and wishes she had more time to play with her.
The Family Consultant cautioned against the ability to be able to determine if the children's stated wishes genuinely represent their wish as opposed to reciting what they have been exposed to by one or both parents.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The evidence supports a finding at this time that each of the children have a good and close relationship with each parent.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Each of the parents has, I am satisfied, taken every available opportunity to spend time with and communicate with each of the children as the court orders have permitted. There is no complaint about either party failing to participate in making decisions about long-term issues apart for the issue about the amount of time the children spend with each parent.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There is very little evidence about this matter of financial support. The applicant and the children live in the former matrimonial home. The respondent is moving to have the property sold and an interim distribution to each party.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This matter only arises for consideration in the circumstance that the respondent is seeking extended time with the children beyond that contained in the current orders of the court. The only evidence which can reliably inform this consideration is the report of the Family Consultant.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no practical difficulty asserted in this matter.
(f)the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Each of the parents has alleged the other may have a diminished capacity either as a consequence of addiction/use of illicit substances or because of mental health issues. Those matters need to be assessed by a properly qualified single expert as recommended by the Family Consultant.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are still young. There are two boys (the twins) and a younger daughter. The children have been born to same sex parents. There is no evidence before the court to support any conclusion that their lifestyle or expectations in life will be adversely impacted upon or further promoted by that fact. It is simply sufficient to note that aspect of the background of the children.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This section is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that each of the parents has a proper attitude to the children and to the responsibilities of parenthood, subject only to the matters set out in these reasons.
(j)any family violence involving the child or a member of the child’s family
The applicant told the Family Consultant she felt controlled by the respondent throughout their relationship. She described how the respondent had displayed rage and contempt towards her. She claimed the respondent had threatened to use the applicant’s past against her in the court proceedings. She said that on one occasion she had been choked by the respondent who then threatened to kill her if she sought to leave the home. The applicant said she has an ongoing fear of the respondent, however, she did not think the respondent would harm the children.
The respondent denied she had been violent or controlling. She described her behaviour as uncontrolled with anger towards the respondent. She said that the applicant had approached her in an aggressive manner and the respondent had pushed her away.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
The Family Consultant in her report exhibit X2 stated that an interim AVO had been taken out against the respondent. There had been a defended proceeding and judgment was due on 11 July 2017.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
(m)any other fact or circumstance that the court thinks is relevant
The respondent alleged to the Family Consultant that the applicant might have or has had mental health problems. She described the applicant as experiencing “extreme moods”.
The respondent reported to the Family Consultant that she has suffered PTSD in 2006 while working. She experienced a relapse in 2011.
The applicant raised her concern about the respondent’s mental health when speaking to the Family Consultant.
The applicant outlined her concerns for the psychological health of the children in the care of the respondent because of her use of video gaming and exposing the children to same. She is also concerned the respondent will expose the children to inappropriate sexual images and behaviour.
In relation to the “co-parenting relationship,” the Family Consultant says the parents correspond by email which is reported to be civil. The Family Consultant set out each parent’s perception of the roles they play in the children's lives and the motives of the other in the proceedings.
Under the heading “Evaluation” the Family Consultant sets out her concern for the psychological health of the children if the parents or either of them is speaking to the children about the parental disputes. The Family Consultant said each parent has raised numerous risk factors associated with the other. She said there may be a possibility of risk to the children.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that.
Section 65DAA
SECTION 65DAA(1)-(4)
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the parties close to equal shared time with the children and I find that to be in their interests.
SECTION 65DAA(5)
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. The section also requires the court to consider other configurations of time for the children to live with and spend with each parent or relevant person.
Determination of the identified issues.
Is the accommodation provided by the respondent for the children when they are in her care unsuitable, in any aspect?
The concern of the applicant about this matter is the cramped nature of the accommodation and the possibility that the respondent will have the children, or any of them share a bed with herself and her friend Ms G.
The children are now still young. What is suitable for children of the subject ages may not be suitable for older children. The respondent has described in detail the layout and facilities in the accommodation she now has for the children. She has emphasised that this accommodation is temporary and that when she can afford more spacious accommodation she will avail herself of it.
I can see nothing unacceptable about the accommodation the respondent is providing for the children when they are with her.
Rationally, it cannot be the case that children must be accommodated in circumstances where the housing is spacious and each child has his/her own bedroom. To have a rule to that effect would eliminate a significant group of people from ever having overnight time with their children.
Until the nature of the relationship between the respondent and Ms G is specifically defined by the respondent, (i.e. is she in a committed and intended long term relationship with Ms G as “a couple” or are they merely friends?) it may be inappropriate for the children to share a bed with them or see them in passionate embraces or actions. Clearly the respondent sees that as appropriate because she has said that she does not sleep in the same bed as Ms G when the children are staying. The respondent has said Ms G sleeps on the lounge.
Whether it is or is not appropriate for the respondent to be sharing a bed with Ms G and one of the children, it is a circumstance which is troubling for the applicant and until the whole of the parenting arrangement and the nature of the familial relationships can be properly assessed it is preferable to avoid antagonistic behaviour by either party.
I do not propose to make an order restraining the respondent from sharing her bed with any other person, however, until there is evidence which the trial judge can assess as to the impact upon the children, I do propose to restrain the respondent from sharing her bed with any of the children whilst at the same time sharing it with another person. In so doing I note that it is the respondent’s case that she has not done this in the past and I assume, would not do so pending the determination of the final parenting orders to be made in this case.
Should the respondent be restrained from allowing the children to use video games rated “M”?
I have not viewed the video games covers or screen shots which the respondent annexed to her affidavit. I considered that would not inform me further.
The use of young children of video games which are rated above their allocated age group is a subject of wide discussion reported through radio and television news stations. I am no expert in relation to whether the use of those games is harmful to young children, however, there is at least anecdotal evidence that it is. I would not sanction a circumstance where these subject children are permitted to use such video games without the advice of a single expert engaged to assess the children and consider that aspect of their care and development in the light of experience and expert knowledge on the subject.
If common sense is the yard stick for the determination of such an issue then it would suggest the games rated “M” are so rated for a good reasons. It seems somewhat short sighted to experiment with exposing the children to that rated level of video games on the basis that some other parents permit their children of similar age to partake in the use of same.
I propose to order neither parent allow the children or any of them to view or participate in any manner in the use of any video game which is rated greater than “PG”.
Should there be any variation of the order of 13 June 2018 in relation to Drug screening for either parent?
On 13 June 2018 an order was made for the parties to engage in drug testing on 1 September 2018 and 1 December 2018. That is just two months prior to the further hearing before me.
Notwithstanding that the order was made by consent, the applicant now seeks to further amend the order. The concern of the applicant appears to be that “the chain of custody” aspects of the testing may not be sufficient. Further, testing is sought into the 2019 year.
The respondent opposes the order sought and relies upon a report from a single expert which has been marked as exhibit X1. The expert opines that test results showing concentration for cocaine of 500pg/mg. need to be disregarded as possibly representing external contamination or one off use rather than evidence of regular drug use.
No cross-examination of the expert was sought or permitted.
Added to the possible confusion about whether the respondent has been using cocaine or other illicit drugs was a negative test result for testing after the dates of reported positive testing where that later testing is stated to be referrable to a period embodying the positive test results. That circumstance has caused the applicant to state a concern that it was not the respondent’s hair which was tested.
This matter has been before the court now since December 2016. The case must be shortly to be placed into a judge’s docket. The parties should anticipate that would occur prior to the middle of 2019. The drug testing provisions now set out in the orders of 13 June 2018 should be sufficient to cover the parties’ possible return to use of illicit drugs before the case is called on before the trial judge. I do not propose to change the orders pending the trial dates being allocated. I will recommend that if the case has not been allocated a first day hearing date by the end of March 2019 that they jointly agree to undertake a further testing on the first Monday in April 2019.
Should there be any variation to the time the children spend with each parent?
There are significant allegations made by each of the parents against the other which, if proved to be true, would be counter-intuitive to unmonitored parenting of the children. There is evidence contained in the statements made by the children to the Family Consultant which suggest the children have been spoken to or exposed to the views of at least the respondent about the time they should spend with her. There are significant differences between the parents about the appropriateness of the children engaging in or observing video gaming in the respondent’s care. There is an issue as to the long term and immediate impact upon the children's psychological health and development of any use of video gaming.
It is difficult to see how any judge, charged with the responsibility of making orders which are in the best interests of these children to proceed to further alter the time the children spend with each parent without the assistance of a report from a single expert child and family psychiatrist. To that end the parties are urged to engage the services of such an expert to prepare a jointly commissioned report.
Having regard to all of the matters set out above I conclude it is in the best interests of the children at this time to make no change to the current orders setting out the time they spend with each parent.
Should there be any order made in relation to the embryos of the parties which are in storage?
The respondent seeks an order that the embryos which contain her biological DNA be transferred to her. The applicant opposes that citing an agreement that the embryos would be destroyed when the parties entered into an agreement with Fertility First on 7 May 2009.
The respondent says that the embryos stored by Fertility First will have their tenth anniversary on 7 May 2019 and at that time the agreement entered into between the parties and that organisation provides for the embryos remaining to “revert to the Institutionalised Ethics Committee of Fertility First for destruction only”. There is another agreement 29 March 2012 and again on 22 February 2013. The agreement executed on 22 February 2013 appears to relate to the collection of DNA ova from the respondent. As such the time for the collection of any spare embryo created from that DNA would not expire until 2023.
The agreement with Fertility First provides for any stored embryos to be “discarded” in the event of a relationship breakdown between the parties.
The determination of the dispute between the parties about any embryo with the respondent’s DNA will require a decision on the force and effect of the parties’ agreement about what is to happen to any stored embryos now that there is no issue that the parties have separated. I note the agreement makes no provision for what is to happen should there have been a clear separation and then at a later time a reconciliation such that the parties wish to have a stored embryo embedded.
I decline to deal with this issue as should I decide in favour of the applicant then the embryos may be destroyed on the strength of an interim determination. In such circumstances the interim determination would be effectively a final decision.
Should there be an order for interim property distribution?
This issue requires firstly a consideration of the proper approach to the determination of an interim property application.
In Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 the Full Court (Boland, Thackray & O’Ryan JJ) found that the trial judge had erred in determining that the applicant for an interim property order needed to establish “compelling circumstances” for the court to exercise its discretion and make such an order. In that case it was not a matter of contest that the applicant would ultimately be found to be entitled to an order which would be greater than the amount she sought as an interim order to cover prospective costs.
In the joint judgment of Boland and O’Ryan JJ their Honours said:
144. The trial Judge approached the issues from the perspective that the Wife had to establish compelling circumstances. … However all that his Honour was required to consider was whether it was an appropriate case to make an interim order for property settlement because the Wife required funds to defray legal costs and expenses of the pending proceedings. It did not require a detailed inquiry into the conduct of the litigation on the part of the Wife. We accept that his Honour was in error in the approach that he adopted.
Their Honours continued:
145. … Because his Honour was satisfied that the Wife had a need for funds to pay legal costs and that she did not have the funds to pay those costs it was an appropriate case to exercise the jurisdiction to make an interim order for property settlement.
At paragraph 147, their Honours said
147. Although we are of the opinion that the trial Judge was in error in relation to the approach he took to consideration of the procedural step, we accept that there may be circumstances where there is a need to examine in some detail a claim for amounts to defray legal costs and expenses, if, for example, it was contended that an application lacked bona fides and was simply being used as a means of obtaining funds by way of an interim property settlement order. However, this was not such a case.
At paragraph 149 their Honours said:
149. Thus the trial Judge found:
1.The Husband was able to pay his legal costs and expenses.
2. The Husband was in a position of considerable financial strength.
3. If the order sought by the Wife was made there was no issue that the remaining property would be sufficient to meet the claims of the parties when an order was made exhausting the jurisdiction.
As a result of these findings all that his Honour had to do was to determine whether in the circumstances it was an appropriate case to exercise the discretion to make an interim order. There was also no controversy about the impact the order sought by the Wife may have when the s 79 power was exhausted. It was contended by the Husband that the Wife could secure her costs other than by an interim property settlement. However, the trial Judge, for reasons which we need not repeat, rejected this contention.
Boland and O’Ryan JJ raised some criticism of one aspect of the trial judge’s process of determination when they said, at 152, “During his consideration of the amount to award to the Wife at no point did the trial Judge say anything about the provisions of s 79(4) of the Act or even give them ‘at least some brief consideration’: Zschokke at 83,216.”
At 155 their Honours said:
155. Once it is determined there are appropriate circumstances then the substantive stage should ordinarily be readily capable of resolution for the reasons we have explained. As the jurisdiction is being exercised pursuant to s 79 of the Act it is wrong to take an approach that a part of a legitimate entitlement of an applicant should be deferred until the final hearing.
Their Honours concluded:
158.For reasons we have already given we accept that the trial Judge “erred in principle in confining the circumstances of the discretion to order an interim property settlement to ‘compelling’ circumstances rather than simply to a proper case in all the circumstances”.
The third member of the bench was Thackray J. His separate judgment led to his conclusion that the order proposed by Boland and O’Ryan JJ should be made. He did, however, address at length the aspect of “compelling circumstances” which had been the subject of complaint by the appellant about the determination reached by the trial judge.
Thackray J referred to portions of the trial judges’ reasons. In particular, he stated as follows:
177.His Honour recorded that the applicable legal principles were to be found in the decision of the Full Court in Harris and Harris (1993) FLC 92-378, from which he quoted the following passage… :
…
(1) The exercise of the power should be confined to cases where the circumstances presented at that time are compelling. As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings. …
His Honour proceeded to identify that the trial judge had also referred to the decision of the Full Court in Zschokke and Zschokke (1996) FLC 92-693. He said:
178. [The trial judge] went on to note that the Full Court in Zschokke and Zschokke (1996) FLC 92‑693 had identified three factors as being relevant to the making of orders for interim property settlement or interim costs, namely:
·a position of relative financial strength on the part of the respondent;
·the respondent’s capacity to meet his own litigation costs; and
·an inability on the part of the applicant to pay her costs.
His Honour continued:
180.… [The trial judge] therefore concluded that the only issue was whether the Wife had “established compelling circumstances”. He went on to note that the Husband contended that even if the circumstances were “compelling”, a discretion remained to refuse to grant the relief sought.
His Honour in addressing the “Proposed Grounds of Appeal” said:
198.Although there were a number of grounds, the Wife’s senior counsel submitted that the fundamental error was that his Honour should not have applied a test of “compelling circumstances”, but instead should have determined whether this was a “proper case in all the circumstances” for an interim order to be made as requested”.
Under the heading “Discussion” Thackray J referred to particular portions of the decision by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578, the Full Court decision in Zschokke, and the provisions of ss 79 and 80 of the Act.
At paragraphs 218 and 219 Thackray J considered what had been said in Harris outside of the phrase “compelling circumstances”. He noted that the Court had also used the words “appropriate circumstances” and “a proper case”. He stated:
219.… It should also be observed that the Full Court in Harris used other, less rigorous, formulations in describing when an interim order might be made. For example, the Court referred to interim orders being made in “appropriate circumstances” (at 79,928) and in “a proper case” (at 79,929). Similarly, Nygh J in Burridge and Burridge (1980) FLC 90-902 at 75,679 referred to an order being made under s 80(2)(h) if the “justice of the case so requires”.
His Honour then said:
220.Accordingly, I accept the submissions of senior counsel for the wife that:
·s 80 confers a “free standing and unfettered discretion to entertain an application for an interim property settlement”;
·it is “contrary to proper judicial practice to confine the jurisdiction … by artificial formulae”; and
·the only limits on the application of s 80 “are the usual limits on the exercise of a judicial discretion”.
In paragraph 222, Thackray J adopted the view expressed by Reithmuller FM in Wenz v Archer (2008) 40 FamLR 212 at [55] where his Honour said:
Whilst the phrase “compelling circumstances” is often referred to, it appears to me that this is simply descriptive of the need for there to be matters that weigh sufficiently against the benefits of having only one exercise of a s 79 power, rather than generating a new test of “compelling circumstances” which is not referred to in s 79…
His Honour then reached the following conclusions:
223. Riethmuller FM was alluding in this passage to the view expressed by the Full Court in Harris that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of s. 79 proceedings”. In this regard it is important to note that s 80(1) is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion.
224.In every defended case one of the parties will claim they are entitled to a payment or transfer of property from the other party. In many cases the other party will acknowledge they are likely to be ordered to transfer property or make a payment. That, however, could not of itself be sufficient to make it appropriate for the Court to make an interim order. Circumstances may change radically during the course of proceedings, as has been seen with recent severe fluctuations in the market. The personal circumstances of the parties may change dramatically. Furthermore, although a party may anticipate ultimately being ordered to transfer property or make a payment, they may legitimately expect to obtain an order for costs against the other party which will be satisfied from funds or property that would otherwise have been transferred.
225.These sorts of considerations provide a strong basis upon which the Court should maintain its traditional stance that there should ordinarily be only one hearing of disputes concerning alteration of property issues. I accept the submission of senior counsel for the wife that something out of the usual course would need to be established before the Court could be expected to devote its resources to resolution of disputes about interim alteration of property interests. However, once the Court has determined that it is appropriate to embark upon the hearing of an interim dispute, it has no alternative other than to exercise (or decline to exercise) the power to make an interim order by application of the relevant provisions of the legislation.
226.In my view, the two step approach advocated by senior counsel for the Wife aptly encapsulates the way the Court should approach an application for interim property settlement. The Court must first identify circumstances that make it appropriate to give consideration to exercising its power to make an interim order. It is at this stage that the Court has regard to the policy consideration that it is generally in the interest of the parties and the Court for there to be only one exercise of the s 79 power. However, once the Court has determined that the interests of justice require it to exercise the power, the conditions on which the power is to be exercised are governed only by the obligation to make an order that is “appropriate” and to ensure that the proposed order is “just and equitable” by reference to the matters set out in s 79(4).
227.I accept the submission of senior counsel for the Wife that in applications designed to secure funds for legal costs it is appropriate for the Court to give consideration to whether the claim for costs is “genuine” – i.e. that a party is not bringing an interim application on a pretext. However, once the Court is satisfied the claim is genuine, it should not “take a narrow view of the costs budget”. I also agree that “it is dangerous for the Court to put itself in the solicitor’s chair [especially in a case where] there are 182 boxes of materials to go through”.
In Marchant & Marchant (2012) FLC 93-520 the Full Court again visited the pathway to be taken in the determination of an interim property application under ss 79 and 80 of the Act. The Full Court stated:
24. In Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466 (“Strahan”), the Full Court (Boland, Thackray and O’Ryan JJ) undertook a comprehensive review of the authorities and identified relevant principles and guidelines to be followed in respect of interim property orders pursuant to ss 79 and 80(1)(h) of the Act.
25. It follows from the joint judgment of Boland and O’Ryan JJ in Strahan that there are two stages to the hearing of such an application and that the first question on an application for such an order is whether the Court should exercise its discretion to entertain the application. Whilst it is not necessary for an applicant to establish compelling circumstances for that question to receive an affirmative answer, it is necessary to establish that it would be appropriate for the Court to exercise the power and the, “…overarching consideration…” as to appropriateness is the interests of justice. Recognising that in the context of s 79 proceedings, the interests of justice will usually be best served by one single and final determination of property orders, it will not be appropriate to exercise the power merely because, on such a final determination, the applicant would receive the interim property sought or in excess of that sought. [Emphasis added]
In this case, the applicant in her amended Initiating Application seeks an order for the property at Suburb D being the former matrimonial home to be transferred to her. She sets out her contributions to the acquisition of the property which, if substantiated, must be seen as substantial. The respondent also claims she has made substantial financial contributions to the acquisition and maintenance of the former matrimonial home.
Each of the parties is claiming a substantial contribution as a home maker and parent.
The applicant appears to be mounting a case for a significant adjustment under s 75(2) (or s 90SF depending upon whether the marriage the parties went through in Country B was a valid marriage under Country B law and can also be recognised under Australian law as a valid marriage) based upon her greater care of the children and the disparity in earning capacity between she and the respondent.
The respondent’s case for an interim order is based upon her evidence that she is financially handicapped in not being able to acquire or rent better accommodation in which to house the children when they are in her care and no doubt she will need funds to pay for her legal representative.
This case does not meet the requirement for the exercise of discretion to make an interim order for the sale of the former matrimonial home as such an order would mean the applicant’s application for a final order, that the title to the property be transferred to her, could not proceed.
In the circumstances the proper approach, in my view is to expedite the proceeding. There are other reasons why the proceeding should be expedited. Those reasons include that there are urgent aspects of the parenting case which need determination. There is also the circumstance where a capital sum of the parties is being applied to meet the mortgage commitment associated with the former matrimonial home and when that sum has expired then it will probably mean the mortgagee will take action to sell the property and retrieve its capital.
I propose therefore to refuse the respondent’s application for an order for the sale of the former matrimonial home and to order that the proceeding be expedited.
The matter has been in the court for almost two years and should be approaching a time when it would be taken into a judge’s docket and allocated a hearing date.
Determination
Having regard to all the above I propose to make the orders foreshadowed below.
The Orders to be made
I propose to expedite the final hearing in this matter. I consider the matter is probably reaching a point when it would be expected to be placed before a trial judge for final hearing in any event.
I do not propose to disturb or vary the parenting orders made 4 April 2017 other than to restrain the respondent from allowing any of the subject children to share a bed with her while she is sharing a bed with any other person, and further to restrain either party from allowing any of the children to view or be actively involved in any video game which is rated above “PG”. Further if the children are viewing or being active with a video game rated “PG” then the parent must be present at all times.
For my part, I would think the better course for each parent is to allow only “G” rated video games for the children until such time as an expert’s opinion as to the possible impact upon their children has been obtained.
I do not propose to make any variation to the drug testing orders made on 13 June 2018 herein.
I propose to recommend that the parties appoint a single expert child and family psychiatrist (as recommended by the Family Consultant) to prepare a Family Report for the court and that upon release of the report, in the absence of agreement after the parties have undergone a voluntary mediation attempting to resolve all issues, the matter be expedited in the event of it not having been allocated to a judges docket beforehand.
I will make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 24 September 2018.
Associate:
Date: 24 September 2018
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