Seyforth and Melvin

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEYFORTH & MELVIN

[2013] FCCA 2190

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9, 3 & 2 – family report prepared but matter not as yet allocated for final hearing – recommendations of report contentious – nature of interim hearing – arrangement for oldest child to spend time with father – weight to be given to views of child as expressed to report writer – arrangements previously fixed by earlier consent order – parties have mistrustful relationship – family violence – best interests. De facto property proceedings – interim property settlement application – matters to be considered.

Legislation:

Family Law Act 1975, ss.4AB; 60CA; 60CC; 61DA; 75(2); 79; 90SF; 90SM

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Strahan v Strahan (2010) 42 FamLR 203
Harris & Harris (1993) FLC 92-378
Wenz v Archer (2009) 40 Fam LR 212

Applicant:

MS SEYFORTH

Respondent:

MR MELVIN

File Number:

ADC 442 of 2013

Judgment of:

Judge Brown

Hearing date:

9 December 2013

Date of Last Submission:

9 December 2013

Delivered at:

Adelaide

Delivered on:

16 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms DuBarry

Solicitors for the Applicant:

Doconade Legal & Migration

Counsel for the Respondents:

Mr Jordan

Solicitors for the Respondents:

Diane Myers Pty Ltd

Counsel for the Independent Children's Lawyer:

Mr Eid

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

This matter be listed for final hearing before Judge Brown on 28, 29, 30, 31 July & 1 August 2014 at 10.00am NOTING 5 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence she proposes to rely on at trial twenty-eight (28) days prior to the hearing.
The respondent file and serve all affidavit evidence he proposes to rely on at trial fourteen (14) days prior to the hearing
On or before fourteen (14) days prior to the hearing the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee is required pursuant to the Family Law (Fees) Regulations 2012.

UNTIL FURTHER OR OTHER ORDER:

The mother is authorised and directed by this order to pay the child X’s school fees for 2014, at (omitted) College, from the trust fund controlled by her.
Order 6(iii)(c) of the orders made on 26 March 2013 be varied to far as the 2013/2014 school year is concerned and X spend time with her father for this period as follows:
(a)From the end of term four 2013 until 4:00pm on 17 December 2013;
(b)From 4:00pm on 24 December 2013 until 4:00pm on 28 December 2013;
(c)From 4:00pm on 10 January until 4:00pm on 17 January 2014; and
(d)From 4:00pm on 24 January until 4:00pm on 26 January 2014.
But otherwise the child spend time with the mother for the remainder of the holiday, subject to order (8) hereof.
In addition to the time the father spend time with the children X, Y and Z each Sunday between 10:00am and 4:00pm and on the 25^th of December 2013 between 10:00am and 4:00pm.
The children are to be exchanged between the parties, on all occasions, within the foyer of the (omitted) Police Station.
The mother be restrained and an injunction be granted restraining her from changing the children’s names in any way such that the children shall be known only as and referred to on by their names:
(a)X born (omitted) 2004;
(b)Y born (omitted) 2010; and
(c)Z born (omitted) 2011.
Father’s interim property settlement application filed 21 August 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 442 of 2013

MS SEYFORTH

Applicant

And

MR MELVIN

Respondent

REASONS FOR JUDGMENT

Introduction and background

These proceedings concern interim arrangements for the care of three children, after the release of a family report and prior to a trial, which will focus on issues of relocation.
There is also an application for interim property settlement, which has previously been agitated. It concerns diverting the proceeds of sale of the parties’ former family home into reducing a business loan, in order to reduce interest payments.
The parties are Ms Seyforth “the mother” and Mr Melvin “the father”. They are the parents of X born (omitted) 2004; Y born (omitted) 2010 and Z born (omitted) 2011.
The parties are not married. They met in (omitted) in 2003. They moved to Adelaide in 2009. They separated, under the one roof of their family home, in Property B in late 2012. Both agree that this period of separation was extremely difficult.
The mother began these proceedings in February 2013. She sought the sole occupancy of the Property B property; sole parental responsibility for the three children concerned; a property settlement; and interim maintenance for herself. She had no defined proposals for the father to spend time with the children.
Y suffers from autism and has limited speech. The mother has provided medical evidence indicating that she (the mother) was diagnosed with depression and anxiety, together with a stress related rash, whilst the parties were separated under the same roof.
In her extensive affidavit material, she also alleged that the father was a coercive and controlling person, during the parties’ relationship. In particular, she alleged that the father had slapped X, for blowing water through a straw at him, on 13 February 2013.
It was also the mother’s case that she did all of the parenting of the children and was unsupported by the father. In this context, she said that it was particularly demanding to parent Y.
The father is a (omitted) by occupation. He had been previously married. He asserts that he brought significant assets into the parties’ relationship. It is his case that he was very involved with the day to day care of the children. He denies ever having assaulted or abused the mother or children, in any way whatsoever.
The case came into court, for the first time, on 26 March 2013. The parties were each represented by experienced counsel and each had filed extensive affidavit material. The parties elected to negotiate an interim settlement, through their respective barristers.
On 26 March 2013, the parties agreed to sell the Property B property. It was further agreed that the father would move into another property, which he owned, in Property N. Pending sale of Property B, the father agreed to pay all necessary outgoings in respect of the property.
In respect of the children, it was agreed that they would continue to live with their mother. X was to spend time with her father, each Wednesday, from after school until commencement of school Thursday; on alternate weekends from the end of school, on Friday, until the recommencement of school on the following Monday; and for one half of each school holiday.
Given her age, no specific order was made in respect of Z, other than that she should spend time with her father, as her parents agreed. So far as Y was concerned, she was to spend time with her father each Sunday between 10:00am and 4:00pm.
Some weeks later, the father commenced proceedings to compel the sale of Property B. The mother asserted that she had not understood the import of the orders to which she had ostensibly consented. She described herself as vulnerable, both physiologically and psychologically.
Against this background, on 3 May 2013, she amended her application seeking the court’s imprimatur to move with the children to Sydney. This is what lawyers commonly categorise as a “relocation order”. Ms Seyforth sought to relocate the children, on both an interim and final basis.
On 8 May, when the case returned to court, after discussion, the parties agreed that they should take all necessary steps to give effect to the order requiring the sale of the Property B property. They also agreed to commission a suitably qualified expert to prepare a family assessment report. Later it was agreed that Ms A would be the expert concerned.
The case returned to court on 24 July 2013, by which stage, the Property B property had been sold. The parties agreed that the proceeds of sale should be dispersed in order to reduce the business loan, related to the father’s (omitted) business, to be reduced to $900,000.00.
Thereafter, by way of interim or partial property settlement, each party was to receive the sum of $100,000.00. The remaining proceeds were to be paid into an interest bearing account, pending the final resolution of the issues between them.
The parties were also referred to a financial mediation conference, scheduled in October, in order to provide both a forum and assistance to enable them to negotiate the property issues between them.
The husband deposes that the parties purchased the business (omitted), in mid-2012, for the sum of approximately $1.3 million. In order to purchase the business, they mortgaged the Property B property to a value of $1.1 million approximately.
The father asserts that he receives a wage of around $670.00 from the business. The business also meets the mortgage on the Property N property, which he continues to occupy and which is registered in his sole name.
On 21 August 2013, the father filed an application in a case. He sought to revisit the children’s orders and for the appointment of an independent children’s lawyer.
He particularly wished an order made directing the mother to inform him of the children’s residential address. It being the case that, upon settlement of the sale of the Property B property, she had moved into rented accommodation, but had not told the father of her address, asserting that she was fearful to do so.
In his supporting affidavit, the father indicated that the sum of $461,657.00, remained from the sale of the Property B property. At that stage, it was earning interest at the rate of 3.65% per annum.
The parties own the real property, on which the (omitted) business owned by them is situated. The property is mortgaged. The mortgage includes some form of overdraft facility. The amount currently outstanding is around $900,000.00 and attracts interest at the rate of approximately 6.65% per annum.
The father sought an order that the net proceeds of sale be applied to the business loan. He calculated that this would result in a saving, in interest, to the parties of $13,850.00 per annum.
He also asserted that the business itself made a modest profit of $2,298.00, for the financial year ending 30 June 2013. It was his position that the business needed to retain as much profit as possible to maintain itself as a going concern.
The father also had many criticisms of the mother and her parenting of the children. He asserted that she had fabricated her fear of him and was attempting to inculcate this fear into the children, particularly X. In these circumstances, he wanted to spend more time with the children.
Significantly, Mr Melvin alleged that the mother was attempting to infantilise X by, amongst other things, not allowing the child to sleep alone, in a single bed or to toilet herself on her own.
He was also highly critical of the mother’s approach to the children’s nutritional needs, asserting that she fed them largely on breakfast cereals, milk, and biscuits. He also asserted that Ms Seyforth kept the children socially isolated.
The father also complained that the mother was not keeping him informed regarding decisions made by her in respect of the children’s medical needs.
In particular, he complained that Ms Seyforth was not keeping him informed of the various medical practitioners, whom Y was consulting, in respect of her autism.
Essentially, Mr Melvin portrayed the mother as a defensive and insecure parent, who had launched an unfounded attack on him, to cover up her own shortcomings.
In this context, he asserted that X, in particular, appeared to be greatly affected by the acrimonious conflict between her parents. He deposed that the mother had had difficulty managing X in the past, and had lost her temper with the child to such an extent that she had physically assaulted X.
In his affidavit of August 2013, the father asserted that X had been presented to him, with significant bruising down her back, which she had attempted to conceal from him.
Mr Melvin believes that this bruising must have been inflicted by the mother. He was fearful that he would be blamed for it. As a consequence, he photographed the bruising and reported it to police.
It was for these reasons that the father sought an order for the independent representation of the children. Such an order was made on 3 September 2013. I was not prepared to make an order requiring Ms Seyforth to disclose her address, until after the family assessment report was to hand.
The conciliation conference, scheduled for 22 October 2013, did not assist the parties to resolve the financial issues between them. Ms A’s family assessment report was released to the parties in early November of 2013. The report has led to further applications from each of the parties.
So far as issues outstanding between the parties are concerned, the major controversies relating to relocation and the division of de facto relationship property remain outstanding.
As such, it is essential that a trial date be fixed for determination of these major issues. It is anticipated that the trial will require five days. I will allocate 28 July to 1 August 2014 for the hearing of the trial.
In early July of 2013, a chartered accountant valued the (omitted) business at $112,049.00. A real estate valuer, at around about the same time, valued the real property from which the business operated as being worth $860,000.00.
In addition, Mr Melvin asserted that the Property N property, which he occupied, was worth $760,000.00, but was subject to a mortgage of $202,467.00. Mr Melvin also asserts that he owes tax, for the financial year ending 30 June 2013, in a sum of approximately $20,000.00.
The parties each own various motor vehicles, the values of which are disputed. However, it seems largely common ground that the major proportion of their worth is held in the equity relating to the Property N property and the net proceeds of sale of Property B, which are currently $464,000.00.
For her part, Ms Seyforth is resolutely opposed to the proceeds being used to retire debt. Underlying her position, is her desire to have liquid assets available to her, if and when she and the children are able to relocate to Sydney. Accordingly, she asserts that it is potentially unfair to her if the moneys are utilised in the way advocated by Mr Melvin.
The mother denied that she had inflicted any injury on X. She asserted that X had bruised herself, when she had fallen. She provided a medical certificate diagnosing a soft tissue injury “post-a fall.”
Ms Seyforth further deposed that she and X had been interviewed, by police, in respect of a complaint made by the father of assault. The police had investigated the matter and declined to take action in respect of it, being satisfied that Mr Melvin had either misconstrued the event or lied about it.
It was further Ms Seyforth’s position that Mr Melvin was putting X under extreme pressure to withdraw statements made by her to Ms A and say that she had lied about her true feelings for her father, because her mother had made her.
The relations between the parties are, from my perspective, marked by an escalating level of conflict. Against this background, it was agreed that the location for handover for the children would be moved from the former family home to a police station.
Notwithstanding the use of a police station, it is Ms Seyforth’s case that Mr Melvin continues to threaten her by, amongst other things, drawing his finger across his throat, which she believes an intention to cut her throat.

The family assessment report

Ms A is an experienced psychologist, who has written many family assessment reports for the court. However, her evidence remains untested, as she has not been cross-examined and her overall methodology subject to scrutiny.
In particular, Mr Melvin, through his counsel Mr Jordan, has raised many prospective criticisms of the report, particularly the reliance Ms A has apparently had on other therapists and teachers, who have been involved with X but not her father. Mr Jordan is concerned that this involvement may have had implications for Ms A’s overall objectivity.
Underpinning Mr Melvin’s concern about the report is his allegation that Ms Seyforth is conducting a campaign to alienate X, in particular, from him, in order to achieve her overall aim of being able to relocate the children far away from him in Sydney. In these circumstances, Mr Jordan urges the court to approach Ms A’s report cautiously at this interim stage.
Ms A did not assess the comments X made to her as appearing to be coached or rehearsed. Rather, X was described as being consistent in her wish to have less time with her father and more time with her mother. Ms A recorded her interview with X as follows:
“In her first interview she suggested dropping the Wednesday overnight stay and just spending the alternate weekend with him (Friday to Monday). However, by her second interview X said that she does not want any time with her father, as he is "mean to me, he hits me, and screams at me" (when asked, X reported that her father hits her on her bottom or leg). X reported that her father treats her like a slave, and "He used to treat my mum like a slave as well". X reported on a number of distressing memories of when her parents were together. She said that she remembers her father treating their two pet dogs badly (e.g., reportedly swinging "(name omitted)" by his paws and then hitting him on the wall). X said that she found this upsetting, and she tried to tell her father to stop, but he would respond by telling her that she cannot tell him what to do.
X reported that life was "really bad" when her parents were together. She said that her father would start fights with her mother. On one occasion X said she stood on the dining table and tried telling them to stop fighting, but her father would not listen to her. X said that she also remembers her father throwing things, such as a container of biscuits, which she and her mother had to clean up because he refused to.
Since the separation X conveyed that she had continued to see her father treat her mother poorly. She said that she had heard Mr Melvin say things to Ms Seyforth such as "I'm going to make you rot" and taunt her about staying in Adelaide (X said that he says "Adelaide, Adelaide" over and over "like he is cheering"). The worst incident according to X occurred outside the Police Station, where she said she saw her father nearly hit her mother, and he stomped on her foot.”
Overall, Ms A reported X as expressing negative feelings about her father and of deriving feelings of comfort and security, from her mother. However, notwithstanding her negativity about her father, X was able to nominate some things she enjoyed doing with him, such as going to the movies and to a play café.
In terms of her observations of the children interacting with their father, Ms A wrote as follows:
“X was helpful throughout, even more involved in attending to Y and Z than she had been the day before (e.g., helping her father entice Y away from the door, intervening when Z went to the writer's bookshelf, and helping to pack up all of her father's belongings following her interview when Y had fallen asleep in his arms). X spoke in a friendly manner with her father, while she spent time on a craft activity and attending to Y and Z. At times Mr Melvin asked for X's assistance (e.g., to get biscuits out of his bag, which he ended up doing himself, and also when he needed to change Z's nappy and he wanted X to help entertain Z, who can reportedly be resistant to lying still for nappy changes).”

One of the main focusses of Ms A’s report was the relocation aspect of the case. In this context, Ms A was of the view that the children’s relationship with their father would be significantly impacted if they moved to Sydney and Mr Melvin remained in Adelaide. She considered that Y and Z were too young to have developed a sufficiently strong bond with their father to withstand the vicissitudes of the distance involved.
The other significant aspect of the case concerns the mutual allegations of family violence. In this context, Ms A noted the diametrically opposing views of the parents in respect of who precipitated violence in the relationship. She did not proffer her own view of the evidence, presumably because she regarded it as the function of the court process to determine issues of credibility.
However, Ms A did provide her opinion in respect of the validity of what X told her. In this context, she wrote as follows:
“At the time of this assessment X was aged 9 years, and while developing competence in a number of areas, the writer has concerns regarding her overall wellbeing. She presents as a thoughtful and caring girl, and is reported to be keen to please. She has been subjected to some bullying at school, and reports on difficult experiences with her father. She did not impress as coached, as her comments were spontaneous and reflected her personal experiences and observations. On the basis of the information from Ms N and the school, X's comments have also been consistent over time and in discussions with a number of different people.
While X may be aligned with her mother, it is the writer's view that this is more likely realistic estrangement, as a result of her reported experiences, than a matter of influence. X consistently spoke about being afraid of her father becoming angry, and referred to specific facial expressions that concern her. She also reported on Mr Melvin using physical discipline, which he acknowledged (albeit to a much lesser degree than she reported). However, X's negative experiences are tempered by positive experiences (e.g., going to the movies, going fishing). The benefit in this is that X is able to relate to her father in a positive way, when he is emotionally regulated, as he was during the observed interaction.
It may also be the case that, in addition to her own experiences, X is to some extent caught up in the conflict between her parents (e.g., being aware of the tensions regarding what her parents feed the girls, her father's concern about the bruise she sustained recently and his request that the Police check on her). Both Ms Seyforth and Mr Melvin have reported that X's behaviour varies when she is with them alone. The writer acknowledges Mr Melvin's concern in this regard, but does not believe another interview with X would have clarified this further.”
Accordingly, Ms A did not dismiss what X said to her, regarding her views of her father to be, more likely than not, grounded in her experience of him rather than because of any loyalty or alignment with her mother.
Significantly, Ms A did not dismiss what each parent said concerning X behaving differently when with each of them respectively.
In these circumstances, in my view it would be naive of me to dismiss summarily Ms A’s view that X is likely to have been “caught up” in the conflict between her parents. The level of conflict between the parties is currently unacceptably high.
Given her autism, Ms A considered Y to be a highly vulnerable child. Z was also noted to be vulnerable because of her limited verbal skills. This is clearly the case. Y and Z are young vulnerable children.
Ms A approached the family on the basis that Ms Seyforth had been the children’s main provider of care, both before and after separation. Ms A also noted Mr Melvin’s criticisms of Ms Seyforth’s parenting capacity. In these circumstances, Ms A was not in favour of any radical changes being made to the parenting arrangements for Y and Z.
However, from her observations of the father with Y and Z, she considered that Mr Melvin was likely to be able to care for the children and they had a good relationship with him. She reported as follows:
“Positively, Y and Z impress as having positive relationships with both parents. Z went to Mr Melvin for comfort and both girls enjoyed playing with him. This would suggest that for shorter periods of time Mr Melvin is "good enough" in responding to Y and Z's emotional needs. It is unclear how capable he is responding to their basic physical needs, with Ms Seyforth asserting that he has not been changing the children and fed them in a way they are comfortable with, until he recently employed a nanny, while Mr Melvin asserts that he does do these caregiving activities, and the nanny can act as a witness for him in this regard.”
Overall, whilst the family remained in Adelaide, Ms A recommended that Y and Z continued to have weekly day time visits with their father.
She also recommended that X should continue to spend alternate weekends with her father but that the weekly mid-term visit should be shortened by removal of the overnight visit. In respect of school holidays, she recommended as follows:
“… During short school holidays a block of three or four nights is likely to be enough time to meet X's need for enjoyable leisure time with her father but to have a primary home base with her mother. Over the summer school holidays, two or three blocks of three or four nights is preferable to longer periods of time.”

The current applications

The case was originally listed for adjudication regarding whether Ms Seyforth should disclose the children’s residential address to Mr Melvin. That application has now been overtaken by events.
Ms Seyforth wishes orders be made in accordance with the family report, so far as X is concerned, particularly that the child should not spend more than three or four consecutive nights away from her during holidays and the overnight school term visit should be suspended.
As previously indicated, the father’s view is that Ms A’s report has been tainted by an undue reliance on statements made to her by a counsellor, whom X has been attending. It is also his view that Ms A has misconceived the nature of the parties' relationship.
In these circumstances, he is opposed to there being any change in the existing orders for him to spend time with the children. He also seeks that the mother should pay X's (omitted) College school fees, of around $3,000.00, from a trust fund controlled by her.
Other issues arise about how the children are going to spend the period of Christmas with each of their parents given the different backgrounds of the parents concerned.
Finally, the father seeks an order in the nature of an injunction restraining the mother from changing the surnames of the children concerned.
Christmas is an important occasion for nearly all of the citizens of this country, particularly the parents of children. The father is (country omitted) by way of background. Accordingly, in his tradition the important days of Christmas are 24 and 25 December. The mother enjoys a (country omitted) heritage. In her tradition, Christmas Eve and Christmas Day will fall on the 6^th and 7^th of January 2014.
It is my impression that there has been no lessening of the tension between the parties since the proceedings began, notwithstanding the initial consent order. To the contrary, it seems to be the case that tension has increased, certainly since the release of the family report, if not before.
The (omitted) College school year concluded on 6 December, the Friday prior to the date scheduled for this interim hearing. According to the orders of 26 March 2013, X was due to spend the first half of the long school holiday with her father.
Given the controversy created by Ms A’s report, she did not move seamlessly into her father’s care. She is however currently spending time with her father, pursuant to the order, which has not as yet been revisited by the court.
Ms Seyforth acknowledges that she controls a trust account containing around $34,000.00, which is intended to be for the benefit of the children. With some reluctance, she has agreed to pay X’s school fees of around $3,000.00 for the 2014 academic year from this fund.
The parties remain in significant dispute about the nature of their relationship and Mr Melvin’s relationship with the children. In support of his case, Mr Melvin has called evidence from Ms E, who is a nanny who regularly assists him when the three children come to the father’s home.
Ms E speaks positively of the father’s parenting of the children and describes him as being sensitive and caring in respect of Y and Z’s special needs. Ms E has some concerns about X’s behaviour, describing her as speaking and behaving rudely to her father.

The nature of an interim hearing

Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses after they have been subject to scrutiny through a process of cross examination.
The essential difference between an interim and final decision is that interim hearings do not determine long term arrangements for the care of the children concerned, whereas final hearings do. Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final hearing stage.

The legal principles applicable

a) Children’s proceedings

In deciding whether to make any particular parenting order in relation to a child the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
The recent changes to the Family Law Act, relating to family violence are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[1]
[1] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
The recent amendments have also inserted new definitions into the Act. In particular, family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·A sexual assault;
·Stalking;
·Repeated derogatory taunts;
·Preventing a family member from making or keeping connections with his or her family, friends or culture;
·Depriving a person of his or her liberty.
Accordingly, family violence means not only violence which causes a family member to be fearful such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
These examples include the overhearing by the child of threats or personal injury made against a member of the child’s family by another family member; seeing or hearing an assault of a family member by another member of the child’s family; the child comforting or providing assistance to a family member who has been assaulted; and observing the physical sequellae of assault or damage to property, such as clearing up after such incidents or being present when police or ambulance officers attend an incident involving family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[2]
[2] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[4]
[3] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[4] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
In this case, there is an operative regime of orders in place in respect of the children. These orders were made, with the consent of the parties, in March of 2013. They have subsequently been slightly amended in order to bring arrangements for the care of Y and Z into line with one another.
It is Mr Melvin’s submission that it would not be in the best interests of the children for the court to revisit these consent orders, at this interim stage, on the basis of untested and provisional evidence.
It is usually considered to be preferable that arrangements for the care of the children be as settled as quickly as possible. Accordingly, Mr Melvin cautions the court against making potentially a far reaching decision in respect of the children against a background of significant controversy and uncertainty given the parties have previously agreed on a regime for the interim parenting of the children.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
Neither party asserts that the presumption of equal shared parental responsibility is applicable at this stage. I agree. It would clearly be impracticable for the presumption to be applied, given the parties disagree about practically every issue to do with the care of the three children concerned.
Rather, it is my responsibility to consider each of the applicable section 60CC factors, as best I can, to arrive at an outcome which will best serve the interests of the three children concerned.

b) Property matters

The court’s authority to make orders in respect of the financial property of parties to a de facto relationship is conferred by Part VIIIAB of the Family Law Act. The court’s power, in this regard, is broadly similar to its authority to make orders in respect of the property of parties to a marriage.
Pursuant to section 90SM, the court is authorised to make such order as it considers it appropriate in order to alter the interests of the parties to a de facto relationship.
Pursuant to section 90SM(3), the court is actively prevented from making an order altering the interests in property of the parties to a de facto relationship, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
In determining what is a just and equitable outcome, I must assess the parties respective contributions towards the acquisition and accumulation of property [section 90SM(4)(a)-(d)]. Thereafter, I must consider a long list of matters set out in section 90SF(3), which broadly relate to any prospective needs of the parties concerned.
In general terms, bearing in mind the limited nature of an interim hearing, the court is required to follow the process prescribed by section 90SM(4) in respect of both interim and final de facto property proceedings.
Accordingly, it is necessary for the court to consider whether it is just and equitable to make such an order and whatever order is made, must be referrable to the criteria set out in section 90SM(4).
In these circumstances, the court must make some assessment of the parties’ various contributions to the pool of assets in question and importantly must have regards to any applicable factor arising under section 90SF(3). Necessarily, any interim order must be referrable to the final order to be made in the case concerned, as both depend on the exercise of the same power.
Given these circumstances, the Full Court of the Family Court has pointed out that, certainly so far as matrimonial property proceedings care concerned, as there can only be one exercise of the power under either section 79 or 90SM of the Act, it is usually preferable that there be only one hearing of such proceedings, rather than a succession of subsidiary provisional hearings.[5]
[5] See Strahan v Strahan (2010) 42 FamLR 203 at 230

In Strahan, the Full Court considered an earlier decision of the Full Court Harris & Harris.[6] In this case, the Full Court delineated the relevant considerations applicable to the making of what is conveniently described as an interim property order. The Full Court, in the case, considering it unnecessary to draw a distinction in terminology between an interim order and a partial order.
[6] See Harris & Harris (1993) FLC 92-378 at 79,930
In Harris, the Full Court whilst affirming the preference that there be only one final hearing of property proceedings, identified three criteria applicable to the exercise of the power to make an interim property order namely:
·the exercise of the power should be confined to cases where the circumstances at the time were “compelling”;
·the exercise of the power, depending as it did on section 79 of the Act, must be exercised within the parameters provided by that section, notwithstanding the difficulty arising for any decision maker concerned in making final findings;
·the exercise of the power must be exercised “conservatively” in the sense that any remaining property needed to be sufficient to meet the “legitimate expectations” of both parties at final hearing, or the order being contemplated is itself capable of being reversed or adjusted at a later stage if necessary.
The controversy ventilated in Strahan centred on the phrase “compelling circumstances” used in Harris and whether such a formulation unduly fettered the court’s power to make an interim property order which was “appropriate” at that stage of proceedings. This being the expression used in the enabling provision contained in section 79(1) of the Act, which is analogous to section 90SM(1).
In this regard, the Full Court said as follows:
“In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.”[7]
[7] Strahan v Strahan (2010) 42 Fam LR 203 at 236 [132]
In reaching this conclusion, the Full Court noted the idiosyncratic nature of litigation, under the Family Law Act, when compared with other civil litigation. In the former, there was often a marked imbalance in the power of the parties concerned and artificialities in how property available to be divided was legally controlled in the period leading up to final hearing.
In terms of the second or substantive phase, the Full Court in Strahan confirmed the second and third considerations delineated in Harris, namely that the relevant provisions of section 79, including section 75(2) needed to be considered and so far as any adjustment made, at this stage, it needed to be capable of reversal or to be clawed back at a later stage.
Examples of where it may be appropriate to use the power to make an interim property order include where both the parties agree to the disposal of some assets pending trial; urgent situations to avoid injustice being wreaked upon one party if the power was not exercised; and where one party requires funds to assist in the defrayal of legal costs arising from the litigation involved.[8]
[8] See Strahan (ibid) at [133]
The discretion to make an interim property order must be closely considered, bearing in mind the different nature of an interim, as opposed to a final hearing, which nonetheless involves the exercise of the same power. Riethmuller FM expressed the dilemma arising in this way:
“…Because the orders under s.79 are the exercise of such a broad and complex discretion, generally the interests of the parties are better served by there being one final hearing under s.79. If the s.79 proceedings are not completed in one decision various options may not be left open and therefore the Court may not be able to ensure that a ‘just and equitable’ outcome overall is achieved. However, there will be cases where it would not be ‘appropriate’ to deny interim relief, as this would not permit a ‘just and equitable’ result in the interim.”[9]
[9] See Wenz v Archer (2009) 40 Fam LR 212 at [54]
Considerations of this type led the Full Court in Strahan to say as follows:
“We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. [10]

Conclusions

[10] See Strahan (ibid) at [139]

a) Property issues

Mr Melvin’s application for the proceeds of the sale to be defrayed to pay interest costs is one which is based purely on pragmatism. It is a compelling argument. However, if I accede to his application, a significant proportion of the parties’ currently available cash resources will be consumed.
As I understand matters, it is not currently Mr Melvin’s position that the (omitted) business should be sold. Rather, he sees the business as having a significant degree of potential and he wishes to turn it around through a combination of hard work and his experience.
The respective final positions of the parties, so far as de facto property settlement are concerned, are not well delineated. The mother seeks a 60/40 percent division, in her favour. The father seeks a 70/30 percent division in his favour. Neither party specifies, in concrete terms, how these outcomes are to be achieved.
However, the mother seems to be significantly reliant on section 90SF(3) factors; whilst the father puts significant emphasis on direct financial contributions, particularly those he made in the form of capital brought into the relationship. In particular, Mr Melvin has not indicated what is his position in respect of the realisation or otherwise of the Property N property.
The father calculates the parties net assets to be $1,130,683.00. Of this sum, $557,533.00 is represented by equity in the Property N property and $464,000.00 is represented by the proceeds of sale of Property B. The parties have few other liquid assets and their equity in the business is limited.
Thirty percent of the net pool is represented by the sum of $337,401.00 (the father’s proposal); sixty percent is represented by $674,802.00 (the mother’s proposal). Accordingly, in theoretical terms, the father could secure the funds required to pay out the mother, if his proposal was accepted, either by the realisation of Property N or a very significant extension in his borrowings secured against the property.
This would not be possible, if the court adopts the mother’s position. For obvious reasons, at this stage, I am not in a position to know how the parties’ respective contributions will be assessed or what weighting, if any, will arise in respect of section 90SF(3) factors.
It is the mother’s perspective that there is the potential for her position to be greatly compromised if the proceeds of sale of the Property B property are dispersed in the manner proposed by the father.
In particular, she is concerned at the potential of her having to wait for the sale of the Property N property before she is able to receive her proper entitlements.
At first blush, the logic of the father’s position appears irresistible. However, when a limited assessment of the parties’ respective cases is conducted, in my view, it appears far less compelling, particularly because, at this interim stage, I do not know where emphasis, in the case overall, will ultimately fall.
In my view, in all the difficult circumstances of this case, it behoves the court to take an extremely cautious approach. Overall, the parties are not in a strong asset position. Their debts are significant. In addition, at present, the mother is in a difficult financial position. She is in recept of social security benefits.
Ultimately, it is her position that she will require a significant cash sum to rehouse herself and the children, regardless of the outcome of her application to relocate to Sydney. In these circumstances, she resists the dispersal of the proceeds of sale of the former family home.
In all the circumstances of the case, I agree that it is potentially unjust and inequitable to Ms Seyforth to make the orders sought by the father. This is particularly so given the uncertainty of how the court is likely to assess factors relating to section 90SF(3), at the final hearing stage.
In addition, in my view, any issues relating to interest paid by the father can be taken into account, by way of direct financial contributions, made by him, pursuant to the provisions of section 90SM(4)(a) of the Act. For these reasons, this aspect of the father’s case will be dismissed.

b) Children’s issues

The level of mistrust between the parties is extreme. In this setting, their respective positions and their view of the facts are diametrically opposed.
In the context of these interim proceedings, I cannot resolve the very many issues in dispute between the parties. The chief of these concerns the nature of the parties relationship with one another, was the father coercive and controlling of her, as the mother alleges; or has the mother fabricated her evidence to achieve her goal of being able to relocate the children to Sydney, as the father asserts.
In the absence of cross-examination of the parties themselves, I am not able to make findings about the respective credit of Mr Melvin and Ms Seyforth. However, I think I would be naïve to think that the children, X in particular, have not been affected by the difficult dynamic in their parents’ relationship.
There is evidence to indicate that X is not travelling particularly well, at present, regardless of whether her mother’s evidence is accepted or her father’s. In this context, in my view, the court must have some regard for the opinion, untested though it is, of Ms A.
If X’s views, as expressed to Ms A are correct, it is clearly the case that she is a child who has been exposed to family violence, within the definition provided by the Act. Ms A records the child reporting her father denigrating and threatening her mother, in her presence and hearing.
However, Ms A also indicates that X derives significant benefits from interacting with her father. Clearly, she knows her father well and has a significant level of relationship with him. In these circumstances, I must be careful not to unduly jeopardise a potentially meaningful relationship, for X, at this interim stage.
In addition, I accept that it is not usually helpful for a court, such as this one, to revisit orders made for children, without there having been a significant change of circumstances.
It is significant that, in the period immediately following the aftermath of the parties’ difficult separation, Ms Seyforth agreed to X spending half the school holidays, with her father, as well as an overnight period during the school week.
Given the highly conflicted circumstances of the parties, I believe I must approach X’s apparent views, as expressed to Ms A, with some care.
Whether X is aligned with her mother for valid reasons, relating to her own experience, or whether she has been unduly influenced by her mother, is one of the most controversial issues, arising in the case, at this stage.
The final hearing of the matter is scheduled for around seven months away. I accept that it is a significant period of time, for the parties and for X, given their current difficult circumstances.
However, it provides a timeframe, in which the various controversies between the parties, can ultimately be resolved, one way or the other. In my view, it is not so far removed from now to justify a radical revisitation of the orders made in March of 2013.
Mr Melvin has indicated, through Mr Jordan, that he does not care greatly how the school holiday is divided up, so far as X is concerned, provided that he does have half of the school holidays with her.
However, due to his reliance on Ms E, he does not wish to change the arrangements for Y and Z to a three or four day block, preferring to continue to interact with them each Sunday, rather than more frequently.
In these circumstances, in my view, it makes sense to approach arrangements for X, on a weekly basis. It is also appropriate that she and her sisters spend (country omitted) Christmas with their father. I do not propose to change the term time arrangements, for X, at this stage.
In these circumstances, recognising that X has now been in her father’s care for a period approaching eleven days, I propose approaching the rest of the holidays in an ad-hoc basis, dividing the holidays, for X, so that she spends roughly equal periods of time, with each of her parents, and spends (country omitted) and (country omitted) Christmas with her father and mother respectively.
I will also continue the orders in respect of Y and Z so that they see their father each Sunday, in conjunction with X, regardless of where X otherwise is. I will also extend this order for (country omitted) Christmas Day this year. Regrettably, the children will have to be exchanged between their parents at the (omitted) Police Station.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 16 December 2013

[2013] FCCA 2190

16 December 2013

Key Legal Topics

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Family Law

Civil Procedure

Equity & Trusts

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Injunction

Costs

Appeal

Remedies

Procedural Fairness