SHELBOURNE & SHELBOURNE

[2017] FamCA 761

FAMILY COURT OF AUSTRALIA

SHELBOURNE & SHELBOURNE [2017] FamCA 761

FAMILY LAW – CHILDREN – INTERIM – FAMILY VIOLENCE – Application by the mother for interim parenting orders – Where there are competing allegations of family violence – Where there are overseas orders registered in Australia pursuant to s 70J of the Family Law Act 1975 (Cth) in relation to two of the children – Where, in the circumstances, the welfare of the children would be adversely affected if no interim orders were made – Where there are video recordings in evidence of the mother’s behaviour – Where the allegations of family violence cannot be tested in interim proceedings – Where it is appropriate for the mother to have supervised time with the children – Orders made for the children to spend supervised time with the mother two to five times per week.

FAMILY LAW – PROPERTY – INTERIM – Where the mother has demonstrated a need for funds – Where the father proposed he pay $50,000 to the mother by way of two instalments – Where the mother also sought orders for over $2,000 per week by way of spousal maintenance – Where the children are not living with the mother – Where the mother’s application for sole occupation of the former matrimonial home was dismissed – Orders made for the father to pay the mother a total of $50,000 by way of interim property settlement and $300 per week for spousal maintenance.

FAMILY LAW – EVIDENCE – Admissibility of video recording taken by the father – Section 7 of the Surveillance Devices Act 2007 (NSW) – Where the recording is found to be reasonably necessary for the protection of the lawful interests of the father – Where the evidence is not unfairly prejudicial – Where the recordings were admitted into evidence.

Crimes Act 1900 (NSW) s 10
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 70J, 117(2A)
Surveillance Devices Act 2007 (NSW) ss 7(1), 7(3)(b)(i)

Gorman & Huffman and Anor [2016] FamCAFC 174
R v Le (2004) 60 NSWLR 108
Stein & Stein (2000) FLC 93-004

APPLICANT: Ms Shelbourne

RESPONDENT: Mr Shelbourne

FILE NUMBER: SYC 4897 of 2017

DATE DELIVERED: 25 September 2017

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF: Rees J

HEARING DATE: 7 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Fortis Law Group

Orders

IT IS ORDERED

1. That Mr B be served with all applications and affidavits filed in these proceedings.

2. That, pending further order, the children C and D who were born on … 2009; E born … 2013 and F born … 2016 live with the father and spend time with the mother as follows:

   (a)Each Wednesday from 3.30 pm until 7.00 pm and each alternate Saturday commencing on 16 September 2017 from 9.00 am until 5.00 pm under the supervision of G Group or such other professional supervision agency as is engaged by the father, at the expense of the father.

   (b)Each Monday, Tuesday and Thursday afternoon from 3.30 pm until 7.00 pm under the supervision of Mr H or Ms H or such other supervisor who is agreed between the father and the mother.

3. That for the purpose of the children spending time with the mother on weekdays, the children will be delivered to the mother at J School at 3.30 pm and collected by the father from her residence at 7.00 pm.

4. That for the purpose of the children spending weekend time with the mother, unless otherwise agreed, the father will deliver the children to her residence at 9.00 am and collect them at 5.00 pm.

5. That commencing on Friday 29 September 2017, and weekly thereafter, the father pay to the mother by way of urgent spousal maintenance the sum of $300 per week.

6. That within seven days of this date the father pay to the mother the sum of $20,000 by way of interim property settlement.

7. That within three months of this date the father pay to the mother a further sum of $30,000 by way of property settlement.  

8. That the application of the mother for sole occupation of the property at K Street, L Town, be dismissed.

9. That the matter be listed at 9.30 am on 28 September 2017 before the Honourable Justice Rees for mention only in relation to the appointment of a Single Expert to prepare a report in relation to parenting issues on the basis that the Independent Children’s Lawyer will be then involved in the issue of who is the appropriate expert.

10. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS ORDERED BY CONSENT

1. That until further order both the father and Mr Shelbourne born … 1978 and the mother Ms Shelbourne born … 1982 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children C (male) and D (male) who were born on … 2009; E (male) born … 2013 and F (male) born … 2016 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

2. That until further order, the names of the children C (male) and D (male) who were born on … 2009; E (male) born … 2013 and F (male) born … 2016 be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

3. That sealed copies of these orders be served upon the Australian Federal Police.

4. That the father be restrained from showing the video recordings which have been tendered in these proceedings to any person other than his legal representatives and the Single Expert appointed in the proceedings.

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 Shelbourne & Shelbourne 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: SYC 4897 of 2017

Ms Shelbourne

Applicant

And

Mr Shelbourne

Respondent

REASONS FOR JUDGMENT

1. Ms Shelbourne (“the mother”) and Mr Shelbourne (“the father”) married in 2013.

2. The parties met in America. The mother is an American citizen. At the time of the marriage she had twins, C and D who were born in 2009 and are now almost eight years old. The twins’ father, Mr B, consented to their moving to Australia to live with the mother after she and the father married and they have been part of the household since. Orders have been made in relation to the twins’ spending time with Mr B.

3. The mother and the father have two children, E born in 2013 and now aged four years old, and F born in 2016 and now aged 19 months.

4. All four children have been part of the household of the mother and the father until the parents separated on 12 April 2017. The children, after a short time, have remained living with the father in the former family home.

5. The matter came before the Court, by way of an interim application filed by the mother, seeking orders that the children live with her, in a Judicial Duty List on 4 September 2017. The father had recently been served and had not filed any evidence. The matter was adjourned to 7 September 2017.

6. On that day, the Court was told that no steps had been taken to serve the applications on Mr B who is a necessary party. Directions were made in relation to service and the matter was given a further date for mention to enable Mr B’s position to be known, and to give him the opportunity to participate in the proceedings.

7. In the interim, it is necessary to determine the parenting arrangements for the children and a number of other interlocutory matters.

THE COMPETING APPLICATIONS

1. The mother seeks the following orders:

   ·    That there be no order in relation to the twins C and D or, in the alternate, that she have sole parental responsibility for them and that they live with her. She seeks no order for the twins to spend time with the father.

   ·    That E and F live with the mother and that she have sole parental responsibility for them.

   ·    That E and F spend time with the father on alternate weekends, as well as birthdays and Fathers’ Day.

   ·    That the father be restrained from using physical discipline on the children.

   ·    That the father be restrained from assaulting, molesting, harassing, threatening or abusing the mother.

   ·    That the father be restrained from recording or filming the mother.

   ·    Urgent spousal maintenance in the sum of $2,043 per week, or in the alternate, a lump sum sufficient to pay a rental bond and pay six months’ rent in advance.

   ·    Exclusive occupancy of the former family home.

   ·    Interim lump sum costs.

2. The mother’s applications are opposed by the father. The orders sought by the father in his Response were amended. At the hearing he sought:

   ·    The appointment of a single expert psychiatrist.

   ·    Sole parental responsibility for all four children.

   ·    That the children live with him.

   ·    That the children spend time with the mother each Monday, Tuesday, Wednesday and Thursday from 3.30 pm until 7.00 pm, each alternate weekend from 9.00 am on Saturday until 7.00 pm, and on special occasions.

   ·    That the time the children spend with the mother on Wednesday and Saturday be supervised by a professional agency and that the balance of the time be supervised by either Mr or Ms H or some other agreed supervisor.

   ·    That he pay spousal maintenance of $300 per week for six months.

   ·    That he pay $20,000 by way of interim property settlement and a further $30,000 within three months.

EVENTS SURROUNDING SEPARATION

1. Until separation, the parties lived in the family home at L Town. This is a large property and there are two homes on it, about 100 meters apart. The parties and the children lived in one home and the paternal grandparents live in the other.

2. On 10 and 11 April 2017, there was an altercation between the mother and the father. It appears to be common ground that on the morning of 11 April 2017 there was an argument between the parents. The father told C and D to go to the paternal grandparents’ house. The mother went to collect them. The paternal grandmother would not allow them to go with her. The father threatened to call the police and took D to his parents’ house.  

3. The mother left the house with F, unrestrained, in the car. She stayed a few nights with a friend.

4. The mother was interviewed by the police on 14 April 2017 and an application was made for an Apprehended Domestic Violence Order (“ADVO”) against her for the protection of the father. The matter was listed before M Town Local Court on 27 April 2017.

5. On the evening of 14 April 2017 the mother went to the paternal grandparents’ home to collect the three older children. The paternal grandparents refused to allow her to take them. The police were called. The police spoke to the paternal grandparents and took C and D to the mother. E remained in the care of the paternal grandparents.

6. There was a further interview with the mother by police on 20 April 2017. The police had viewed video footage taken by the father.

7. On the evening of 20 April 2017, the police attended at the mother’s premises and removed the children from the mother, returning them to the care of the father. The mother was taken to the police station and charged with assault arising out of an incident on 29 December 2016 which had been recorded on video by the father.

8. On 27 April 2017, interim ADVO orders were made, against the mother, naming the father and all four children as protected persons.

9. Thereafter, the mother spent time with the children as arranged with the father and in his presence.

10. On 11 May 2017, the mother entered a not guilty plea in relation to the criminal charges and indicated to police that she would defend the ADVO proceedings.

11. Since early July 2017, the mother has been staying at the home of Mr H and Ms H who are well known to the father.

12. On 28 August 2017, the mother pleaded guilty to a charge of assault occasioned on the father in the presence of the children on 29 December 2016. She received a bond pursuant to section 10 of the Crimes Act 1900 (NSW). On the same day a final ADVO was made for the protection of the father and the children for a period of one year.

13. On 4 September 2017, orders were made providing for the mother to spend time with the children each afternoon until 7.00 pm in the presence of Ms H.

14. At hearing on 7 September 2017, the children were living in the family home with the father.

15. The determination of the appropriate interim arrangements for the children, until such time as Mr B can be served and given the opportunity to be heard, turns on the competing allegations of family violence.

16. The matter is being dealt with on an interim basis with no opportunity to test the competing allegations in cross-examination. Where there are factual disputes, it is not possible to make a determination unless there is corroborating evidence which might assist.

17. The mother alleges that the father has been physically, verbally and emotionally violent to her throughout the relationship.

18. The father alleges that the mother has a problem with uncontrolled anger and has been verbally and physically violent to him, both in the presence of the children and alone, and that she has made threats to harm the children and herself.

19. It is accepted that the mother has been admitted by the police to M Town Hospital mental health unit on one occasion and to N Hospital mental health unit on three occasions. The records of those admissions were sought but had not been produced. The mother alleges that the father fabricated complaints to cause the police to admit her. The father denies those allegations. Those records will be available in due course and, in the meantime, no finding can be made based on their competing allegations.

SECTION 70J

1. The orders made in America in relation to C and D have been registered in Australia, enlivening the provisions of s 70J of the Family Law Act 1975 (Cth) which provides:

   Effect of registration on exercise of jurisdiction

   (1)  A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:

   (a)  each person:
      (i)  with whom the child is supposed to live; or
      (ii)  who is to spend time with the child; or
      (iii)  who is to have contact with the child; or

(iv)  who has rights of custody or access in relation to the child;

under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or
(b)  the court is satisfied that there are substantial grounds for believing that the child's welfare requires that the court exercise jurisdiction in the proceedings.

(2)  If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:

(a)  that the welfare of the child is likely to be adversely affected if the order is not made; or
(b)  that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made.

1. If no order is made in relation to C and D, then the provisions of the ADVO made in the Local Court, to which reference is made later in these reasons, will have the effect that the mother cannot approach them or spend time with them.

2. For that reason I am satisfied that the welfare of the children will be adversely affected if no orders are made.  

THE ADMISSION OF THE VIDEO RECORDINGS

1. Counsel for the father sought to tender a number of video recordings which, it was submitted, corroborated the father’s accounts of the mother’s violent and threatening behaviour. The tender was opposed by counsel for the mother on three bases. Firstly on the basis that it was an illegal recording for the purpose of s 7 of the Surveillance Devices Act 2007 (NSW) (“Surveillance Act”),  secondly on the basis that the recordings were unfairly prejudicial to the mother and thirdly on the basis that the recordings are selective and do not record the whole of each incident.

2. The recordings were admitted into evidence and I indicated that reasons would be given in the judgment. These are those reasons.

3. The recordings were made by the father using his mobile telephone. The mother was aware that he was recording because she could see that he was doing so and she asked him to stop. He continued to record and she continued to speak. On some occasions, the children were present.

4. Section 7(1) of the Surveillance Act makes it an offence to record a private conversation. However, s 7(3)(b)(i) provides:

   (3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

   (a) …

   (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

   (i) is reasonably necessary for the protection of the lawful interests of that principal party, …r …

5. In DW v J [2014] 239ACrim R, Adams J (with whom RS Hulme J agreed, Giles JA dissenting on this issue) held (at [83]) that the desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in a court proceeding about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness, did constitute a "lawful interest" for the purpose of that phrase as used in the predecessor to s 7(3)(b)(i) of the Surveillance Act (s 5(3)(b)(i) of the Listening Devices Act 1984).

6. In circumstances of counter allegations of violence and threats of violence, I accept that the recording by the father, of the mother’s behaviour, comes within the exception provided by s 7(3)(b)(i) of the Surveillance Act.

7. Section 135 of the Evidence Act 1995 (Cth) provides the discretion to exclude evidence in the following terms:

   The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

   (a)  be unfairly prejudicial to a party; or

   (b)  be misleading or confusing; or

(c)  cause or result in undue waste of time.

1. However, evidence is not unfairly prejudicial merely because it tends to damage the case of the mother and support the case of the father.

2. No other basis was postulated by counsel for the mother.

3. There will always be a degree of unfairness to one party where there is no opportunity to cross-examine the other in relation to the evidence, but these are interim proceedings relating to the welfare of children and the evidence is relevant to serious allegations that bear on the welfare of the children. I consider that the importance of the evidence, in assisting in the determination of the proper parenting arrangements for the children, outweighs any potential prejudice to the mother arising from the inability to cross-examine at this stage of the proceedings. 

4. The Full Court of the Family Court of Australia (“the Full Court”) dealt with the admission of recordings in Gorman & Huffman and Anor [2016] FamCAFC 174 where their Honours said:

   204. There are also complaints made by the mother that “the extracts and or tape recordings were reconstructed”, and that the conversations chosen were “staged”, but once again these complaints are misconceived. They do not go to the question of admissibility, and they can only go to the weight to be attached to the evidence once admitted.

1. I consider that the recordings provide contemporaneous evidence of the events recorded in a context where family violence is the pivotal issue to be determined, but I am conscious of the fact that, as is apparent from the recordings themselves, the whole incident is not recorded each time.  

THE ALLEGATIONS OF FAMILY VIOLENCE

1. The mother deposed, “For the entirety of our relationship I was subjected to forms of family violence from [the father]. This included physical, emotional, psychological and financial controlling behaviour from [the father]. I was regularly belittled, intimidated and provoked by [the father].”

2. Specifically, she deposed:

   (i) In approximately June 2013, whilst pregnant, [the father] flung me across the bed.

   (ii)In August 2014, while in the US, [the father] pushed me into the refrigerator at my parents’ home. My parents, sisters, [C], [D] and [E] were all present.

   (iii) In approximately September 2014 I was sitting in a chair holding [E] who was a baby, and [the father] slapped me across the face.

   (iv) In approximately June 2015 [the father] attacked me by grabbing me by the throat.

   (v) Throughout our relationship, during arguments [the father] would regularly raise his fist and threaten to hit me.

   (vi) [The father] bit me in early 2017 on the forearm leaving teeth marks and bruising. [C] saw the bite marks afterwards.

3. Annexed to the mother’s affidavit are a series of text messages from the father where he speaks to the mother in demeaning language. He refers to her as a “complete bitch” and “a complete tramp”. He says “Get stuffed…I hate being married to you.” He says “You don’t deserve children” and refers to her attitude as “disgusting”. The mother refers to the father hitting her.

4. It is accepted that the texts annexed to the mother’s affidavit do not constitute the full history of the communication between the parties. The mother deposed that they were an indicative selection. None of her texts to the father are included.

5. It was the father’s case that the mother suffers from uncontrolled anger and has perpetrated acts of violence upon him. He deposed to occasions on which the mother had threatened to kill herself and one of the children and to violent arguments in the presence of the children.

6. The father tendered video recordings made by him using his mobile phone between March 2016 and December 2016.

7. I do not attempt to describe or summarise all of the footage but some of it is notable.

8. On 30 March 2015 a video recording shows the mother, in the presence of some of the children, screaming at the father in foul language. The video lasts over ten minutes. The children are extremely distressed and crying.

9. In the mother’s case, photos taken on 1 December 2016 were tendered. They show bite marks on the mother’s arm. The father admits that he bit the mother. He deposed:

   [The mother] wanted to continually argue with me and I wanted her to leave the room. [The mother] put me in a head lock, both her arms were around my face and I felt like I was being choked. I could not breathe. My mouth was open and my teeth may have contacted her arm. She was the one applying force, not me.

10. On 18 September 2016, the recording shows the mother berating the father through the window of his car. The father says that the mother has just tried to strangle him. He repeatedly asks her to “go away” and “step away” and “please stop”. She says to the father that “I wish you would die” and “I’m going to kill the baby”. The mother says “We’re going to be dead” and “You won’t see me again”. She says “[F] and I are going to be dead” and “Goodbye you will never see me again”.

11. Later, the mother is holding baby F who was three months old. She berates the father saying “I am going to take the baby and find the highest thing and jump”. She repeatedly walks away from the father in the car and comes back. She says “I don’t want to be alive like this”. The father says “leave [F] with me.” The mother says she is going to write a letter to the judge to let C and D go home. She continually uses foul language, all the while holding F. She says “We’ll be gone before you can find me” and “I’ll be dead.” The mother says that she and F will be dead before the father has the chance to have her locked up. Later she says “I’m going to go and kill [F] and myself” and “you’ll never find us. [F] and I will just be gone”.

12. A video recording made on 1 December 2016 shows the father asking the mother to walk away from him and the children. He takes the children into their room and puts them to bed. The mother follows him and refuses to walk away. The children become increasingly distressed as the mother yells at the father. She follows him and one of the children into the bathroom and continues to yell. At one time the father says he will leave the room and the children scream and beg him to stay. He implores the mother to walk away. The children are screaming. The children attempt to mediate between their parents. One of the children can be heard saying “We want to get some sleep”. The mother continues to berate the father over the children’s beds. There are periods of calm before the mother resumes the argument, again in the presence of the children. One of the children joins the argument. The mother then tells the child what the father has done and continues the tirade, arguing with the child about what happened. 

13. On 29 December 2016 there is a video recording of an altercation involving the parents and at least two of the children. At the beginning, the mother is holding one of the children. The father repeatedly begs the mother to stop screaming. The children are screaming hysterically and calling for their father. They appear terrified. The mother’s screaming continues for a long time. The mother at one point shouts to the children “Daddy shouldn’t be doing this to me”. The father attempts to leave and the mother prevents him from going. She is aware that she is being recorded but appears to be unable to stop and appears oblivious to the children’s distress.

14. Whilst I accept that the recordings, made by the father, are self-serving, it is notable that he remains calm throughout and the mother’s behaviour is completely unrestrained, although she is clearly aware that she is being recorded.  It is also notable that the children turn to their father for comfort and do not want to be left with their mother. The father is heard calming the children and telling the children “She loves you”.

15. The mother, in contrast, is unrestrained, out of control and, when the children are present, oblivious of the effect of her behaviour on them.

16. On 28 August 2017 the mother offered a plea of guilty to assault of the father. It was conceded that the facts to which she pleaded were contained in the Facts Sheet which was tendered in these proceedings.

17. The mother therefore admitted, inter alia, that on 29 December 2016, in the course of the argument (part of which forms part of the video recording to which reference was made earlier in these reasons), she placed F on the floor, walked behind the father and grabbed him around the neck with her left hand. The father was seen to struggle as the mother held him around the neck. He pushed her away. She then walked back to him and pushed him saying “I have nothing, I hate you, I’m working so hard, tell me that you should be beating me because that’s what any man does” as she walked away. All four children were crying and calling out “Daddy, Daddy” as the father comforted them. One of the children can be heard to say “I can’t take this” while crying into the father’s chest.

18. The mother sat on the floor and yelled at the father. Shortly after, while holding one of the children, the mother approached the father and said “Call the police, send me the (sic) hospital, you are fucken working towards it, I’ve done nothing wrong”.

19. The father and the children walked towards the front door as the mother followed them. As the father opened the front door the mother said “your (sic) not leaving me” and the father said “Just walk away”. The mother screamed “Stop it, Stop it” and the father told the children to get into the car. As the father left the house, the mother grabbed his legs to prevent him from leaving. The father told the mother to “just let go” and “stop”.

20. I accept the submission by counsel for the mother that the recordings do not show the whole of the incident between her and the father on each occasion and that they do not show how the incident started.

21. However, the behaviour of the mother, in the presence of the children, when she was well aware that she was being recorded, is of such a nature that it raises real concerns about her ability to regulate her behaviour and to contain herself, even where it is clear that the children are distressed and frightened by her behaviour.

22. As recently as a few days ago, the day before the matter was to be heard, the mother made an abusive phone call to the father’s sister-in-law who had sworn an affidavit in the father’s case. She must have been aware that such behaviour would be brought to the attention of the Court but that did not appear to act as a restraint on her.

23. It may be the case that the mother is able to parent the children calmly and rationally when the father is not present. However, that is a matter she will need to demonstrate.

24. There can be no doubt that it is in the interests of the children to have a meaningful relationship with their mother. This is particularly so for C and D who have little, if anything, to do with their biological father. However, it is also necessary that the children not be subjected to the behaviour which the mother has demonstrated in their presence towards the father.

25. There is no evidence that allows me to make a determination about the children’s wishes, or their relationship with each of the parents, except that, in the course of the recordings, it was the father to whom they turned to for comfort. I am not in a position to make any finding about the nature of the children’s relationship with their mother.

26. I am not in a position to determine whether the children will be adversely affected by separation from their mother who was their primary carer until separation in April of this year. I must assume that it is likely that there will be an effect.

27. The father proposes that the mother’s time with the children be professionally supervised. He will pay the costs of supervision which he estimates to be in the vicinity of $70 to $140 per hour.

28. Based on the recordings of the mother’s behaviour, I have grave doubts about the mother’s capacity to provide for the children’s emotional needs when she is agitated. I am unable to say whether she can do so when she is calm. The reports of the professional supervisors will provide evidence of her ability to parent the children in the absence of the father.

29. The evidence about family violence has been canvassed earlier in these reasons. The mother’s repeated threats to kill herself and F must be taken seriously.

30. The father proposes professionally supervised time for the children with their mother each Wednesday from 3.30 pm until 7.00 pm and each alternate Saturday from 9.00 am until 5.00 pm. If another suitable supervisor, such as Mr or Ms H, is available, he proposes time on Monday, Tuesday and Thursday afternoon as well.

31. The father’s proposal is appropriate in all the circumstances. Professional supervision will have the added advantage of reports from the supervisors.

IMMIGRATION STATUS

1. The mother has applied for a visa to remain permanently in Australia, based on her allegations of family violence. The father is not required to do anything to facilitate that process.

2. It would clearly put the whole family in difficulties if the mother were not permitted to remain permanently in Australia because consideration would have to be given to whether, if she has to return to America, the twins, or all of the children, should also re-locate to America. That would also involve considerations of splitting the children.

3. It is imperative that the mother’s immigration status in Australia be resolved as soon as possible.

4. The twins’ ability to remain in Australia is presumably dependent on the mother’s immigration status. There is no evidence that they have an ability to remain in Australia if she cannot.

5. It may be that it will be necessary in due course to instruct a Single Expert to give evidence about those issues.

6. At present, the twins’ passports have expired and they have an appointment with the American embassy on 12 September 2017 for the renewal of their passports. The parties have agreed on a process to facilitate that happening and orders were made by consent on 7 September 2017.

7. The parties have also agreed that airport watch list order should be made in relation to all four children.

OCCUPATION OF THE FAMILY HOME

1. Because I have determined that the children should live primarily with the father, it is appropriate that he and they should continue to occupy the former family home.

2. This is particularly so in circumstances where the father’s parents occupy a home some 100 meters away from the family home, on the same property, and there is some hostility between them and the mother.

3. The mother’s application for sole occupation will be dismissed. 

INTERIM PROPERTY SETTLEMENT

1. The mother seeks an order for costs pursuant to s 117(2A) of the Family Law Act 1975 (Cth). Counsel for the mother conceded that such an order could also be made as an interim property order as the father proposed.

2. Although the mother is not required to demonstrate a need for funds, it is accepted that, if she is to secure rental accommodation, she will need to pay a bond and she will probably need to pay six months’ rent in advance, since she has no present significant income. In addition, she will require funds for her legal costs.

3. There is no dispute that the mother has an entitlement to a division of the matrimonial property and that any order sought would be well within the ambit of her claim. The only issue is what the father can pay.

4. In his Financial Statement sworn on 22 August 2017, the father deposed to having $30,000 in bank accounts. He proposed that he pay $20,000 of that sum to the mother immediately and that, within three months, he pay a further $30,000 which he will obtain by re-financing. He has equity of about $700,000 in an investment property.

5. The mother has not demonstrated that the father has the capacity to pay more at short notice.

6. Orders will be made as the father proposes.

SPOUSAL MAINTENANCE

1. The mother seeks an order for urgent spousal maintenance in the sum of $2,043 per week. That application is predicated upon her having the care of the children. The children’s expenses, which she calculates at $925 per week, are included as part of her expenses in her Financial Statement. As the Full Court found in Stein & Stein (2000) FLC 93-004, the expenses of the children cannot be taken into account in assessing the mother’s need for support.

2. The mother calculates her Part N expenses in her Financial Statement as $1,118, but that sum includes rent of $550 per week which she is not currently paying and which will, in future, be accounted for by the interim property settlement. I accept that it is difficult to calculate what the mother’s financial needs are, given that she is living with Mr and Ms H and her future needs are uncertain.

3. There is no dispute that the mother meets the threshold test for spousal maintenance and the father’s position is that he should pay $300 per week. 

4. In his Financial Statement sworn 22 August 2017, the father deposed to an income from personal exertion of $1,250 per week and further income from rents, giving him a total income of $3,092.  He deposed to expenses of $2,927, which amount included expenses for “Registration, Insurance, Telephone, Personal and Family Expenditure” of $500 per week.

5. Whilst I am aware that the mother contends that the father has access to other funds, particularly cash funds, I cannot find that he is able to pay more than $300 per week and I propose to make an order as sought by the father.

APPOINTMENT OF A SINGLE EXPERT

1. The parties agree that a Single Expert should be appointed but they do not agree on an expert. An Independent Children’s Lawyer (“ICL”) was appointed on 4 September 2017 but those arrangements could not be put in place before the hearing. It is appropriate that the ICL be involved in the choice of the Single Expert and the instruction of the Single Expert, and the matter will be stood over for mention before me at 9.30 am on 28 September 2017 so that an appropriate expert can be appointed.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 September 2017.

Associate: 

Date:  25/9/2017