Skinner and Skinner

[2007] FamCA 831

FAMILY COURT OF AUSTRALIA

SKINNER & SKINNER [2007] FamCA 831

FAMILY LAW - CHILDREN - Preparation of family report - Responsibility for payment for report
FAMILY LAW - PROPERTY SETTLEMENT - Separated under same roof – Applications for exclusive occupation - Interim Orders maintaining status quo
FAMILY LAW - SPOUSAL MAINTENANCE - Application refused

Family Law Act 1975 (Cth)

Bing and Bing [2007] FamCA 418
Davis v Davis (1976) FLC 90‑062; 1 Fam LR 11,522
S & S [2002] FamCA 59
Zschokke and Zschokke (1996) FLC 92-693; 20 Fam LR 766

APPLICANT: MR SKINNER

RESPONDENT: MRS SKINNER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4048 of 2007

DATE DELIVERED: 3 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Scott-McKenzie

SOLICITOR FOR THE APPLICANT: Carew Counsel Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: John Pastro & Co

Orders

1. That paragraph 3 of the response (Form 2A) of the wife filed 25 July 2007 be adjourned to the Senior Registrar’s list of cases at 9.45am on 19 October 2007.

2. That the husband have leave to file and serve an amended application in a case (Form 2) seeking parenting orders by no later than 4.00pm on 31 August 2007.

3. That paragraph 2-6 of the husband’s application (Form 2) filed 10 July 2007 be otherwise dismissed.

4. That paragraphs 1-2 of the wife’s response (Form 2A) filed 25 July 2007 be otherwise dismissed.

5. That the husband, the wife and the child A born in March 1994 attend upon and at the direction of, psychologist Mr L for the purposes of the preparation of a Family Report to cover all issues under s 60CC of the Family Law Act 1975 (Cth) and in particular the issues of the child’s views about future parenting of her by her parents.

6. That the parties be equally responsible for the cost of the said L report.

7. That the wife pay the full cost of the report at first instance.

8. That at the time of the settlement of the property issues between the parties, the husband pay one half of:

   (a)the cost of the L report; and

   (b)any reasonable borrowing costs and interest incurred by the wife in obtaining the necessary funds to pay for the L report.

9. That notwithstanding paragraphs 3 and 4 of these orders, any issue as to costs be determined up written submission to Justice Cronin and any such application for costs:

   (a)be filed with the associate to Justice Cronin by 4.00pm on 17 August 2007;  and

   (b)     be served on the other party by that date.

10. That in the event that an application is made for costs by the party pursuant to paragraph 9 hereof the other parties shall have until 4.00pm on 24 August 2007 to reply.

11. If no further application by either party is filed by the date referred to in paragraph 9 all applications other than those referred to otherwise in these orders shall be deemed to be dismissed.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4048 of 2007

MR SKINNER

Applicant

And

MRS SKINNER

Respondent

REASONS FOR JUDGMENT

1. This is an application involving Mr Skinner and Mrs Skinner.  They are husband and wife.  The husband's application, filed on 10 July 2007, seeks orders that:

   (a)the wife pay to the husband $250 per week spousal maintenance;

   (b)the wife pay the telephone account;

   (c)the husband restore the wife to the health insurance policy;

   (d)the wife pay the outgoings of the home and also a separate farming property nearby upon which livestock are maintained;

   (e)that the wife pay a variety of outstanding livestock-related expenses;

   (f)the wife withdraw from the home mortgage a sum to pay out the husband's credit card liability, said now to be about $21,000;

   (g)the wife sell Commonwealth Bank shares said to be worth about $40,000 as a litigation‑funding sum for the husband;

   (h)that the wife pay the husband's costs.

2. The wife, in a response filed 25 July 2007, seeks orders that:

   (a)      she have sole occupancy of the home;

   (b)the farming property be sold and the proceeds be divided pending final orders;

   (c)the child, A, live with the husband and wife on a week about basis. 

3. The child, A, was born in March 1994.  She is therefore 13 years of age.  It was agreed that the child’s wishes will be important in the parenting dispute ahead of the parties and as such they have engaged and agreed that I should make an order that everyone attend upon psychologist, Mr L, for a family report.  They agree that Mr L's report will cost $1800 but do not agree on who is to pay for it.  Those are the issues that I determine by these reasons.

4. It is agreed that the matter should return to court after the L report is completed by about early October.  Each party filed affidavit material and each was represented by counsel who made submissions about the other party's material and what I should do.  The wife objected to a second affidavit of the husband filed at the hearing but I propose to admit it.  It does not substantially affect the outcome.  I propose to deal with each of the issues in turn.

5. Before doing so, the following background is useful to understand the family dynamics.  The husband is 54 years of age and the wife 45.  They were married on 10 October 1992.  A is their only child.  In 1990, in other words, about two years prior to the marriage, the husband was severely injured.  He has not worked since.  Apart from one isolated incident, the husband has not worked throughout the marriage. 

6. The wife has been the breadwinner.  She is employed as a bank manager.  In their respective positions, the wife earns about $54,800 per annum by way of salary and has a motor vehicle and health insurance benefit as a result of her employment.  Those two benefits total about $14,800 per annum, but offset against that is a hire purchase expense on the car of about $13,570 per annum.  In other words, her gross disposable income per week is about $1077 from which all expenses other than the car have to be paid.

7. The husband receives a disability support pension at the moment of $13,780 per annum.  He has a dispute with a WorkCover insurer but that remains unresolved.  The disability pension apparently comes about because the husband was not only injured but also because the parties have declared their separation.  I was told that they have been separated under the one roof since 1994 or 1995.  That has to be seen in the context of the current relationship.  That relationship has subsisted for about 12 or 13 years. 

8. The proceedings were first commenced in 2002 by the wife but were then discontinued.  There was an incident in February 2007 in which the police were involved.  The husband obtained an ex parte intervention order against the wife but that issue was resolved with the parties agreeing on undertakings.  The impasse seems to have then continued on as it had for many years before February this year.

9. In April 2007 the husband issued the substantive property proceedings and sought that the child live with him.  On the very day before the hearing before me, the parties attended a conciliation conference and did not resolve matters.  There seems to be little dispute about the asset pool.  It is somewhere around $315,000, plus about $400,000 in the wife's superannuation fund. 

10. The husband's affidavit which I mentioned earlier referred to the fact that after the conciliation conference, the child was distressed and tried to discuss matters with the wife.  The wife disputes the precise details of what occurred.  I do not propose to take that factual matter into account in any sense.  I do express concern, however, that the child seems to have become embroiled in the financial dispute.  That is unfair to her.  If the parents or either of them are involved in discussions with the child, notwithstanding her age, it should stop.

11. In that factual context, I turn to the issues; first, the spousal maintenance question.  The husband says because of his injuries he has been unable to work and has assumed responsibility for the home.  The wife says the husband could support himself if he chose to engage in paid employment.  She makes reference to his capacity to rear and care for livestock.  In his second affidavit, the husband pointed to his receipt of the disability pension but also the plethora of health professionals that he still attends.  He points to his limited pension income that I mentioned earlier.

12. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) sets out:

    (1)  A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

    (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

    (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

    (c)for any other adequate reason;

    having regard to any relevant matter referred to in subsection 75(2).

13. Notwithstanding there is no specific medical evidence about the husband's physical disabilities, the wife has lived in this state of unhappiness for many years and not only must have been cognisant of the husband's attendance at the various health professionals' appointments but also in one form or another, the contributions to the costs of getting there.  She says that the husband has been dishonest about these trips and that she paid all of the household bills anyway.

14. Added to that is the fact that again, notwithstanding her chagrin, the husband has lived his life away from the workforce for many years. At 54 years of age, I think I am entitled to conclude that his prospects of paid employment, even if he sought it, would be limited. Section 72 provides a threshold for the applicant to reach before the respondent can be called upon. I am satisfied on the limited and untested evidence that the husband is unable to support himself by reason of physical capacity for appropriate gainful employment.

15. The second issue after the husband reaches the threshold is that the wife only has a liability to maintain him to the extent that she is able to do so.  I am determining all of these issues on the untested evidence that is set out in the affidavits of the parties.  The wife's financial statement shows that she earns $1119 per week, ignoring the car and health insurance benefits.  In respect of her expenses, she pays the following on essential items before she has a dollar for living expenses:  tax, $243; superannuation, $114; mortgage, $352; rates, $100; health insurance not covered by the employment benefits, $58; other insurances, $22.  That totals $889.  She is therefore left with $230 per week. 

16. Then in respect of essential living expenses, she spends the following:  food and household supplies, $115; utilities, $58; petrol, $35; clothing, $20.  That totals $228 out of the $230.  Sitting in this court on a daily basis and after years of private practice in this area, it is not difficult to realise that over and above what I have described as essential living expenses, people incur things each but not every week, such as medical expenses not covered by health insurance, chemist expenses, drycleaning expenses, including that of the school uniforms, hairdressing expenses, life insurance and household repairs.  If one then adds what might be sadly described as luxury items, one would have to add birthday and Christmas presents, including those for the child, school excursions, child birthday parties, holidays and entertainment. 

17. In this case, the parties run two properties and have livestock.  I am told sport is a passion for the child.  It does not take much imagination to see that sporting hobbies are also expensive.  Sad as it may be, it ought to be obvious that the parties are living on the economic borderline, if not beyond it.  I could not find that the wife has the capacity to make any further contribution than she already is, bearing in mind the household expenses she is currently paying and which the husband and the child are enjoying. 

18. I turn then to the question of the litigation funding and the sale of the shares against the sale of the farming property and an interim distribution of the proceeds.  Any or all of these courses of action may give some temporary relief but each affects the ultimate property division.  The wife wants to keep the shares.  She may have to sell them to pay her own legal fees.  The husband wants to keep the farming property but may have to dispose of them to satisfy his obligations under the settlement.

19. In making those comments, I am conscious of the fact that there is a significant superannuation fund available for division which I am told can be converted to cash because of the husband's age and work circumstances.  The sale of the shares and possibly the farming property would attract capital gains tax.  The husband also seeks that the wife increase the mortgage debt.  That is very much governed by not only her ability to borrow and repay the funds but also service the borrowings.  Having regard to what I earlier said, the latter course is not feasible. 

20. The husband relies upon his solicitor's affidavit to support the notion that funding at least as to expenses is necessary.  The wife says she is in no different position to him.  The issue of the mortgage drawdown is directed at the payment of the husband's liability of $21,000 for his credit card.  The wife finds this particularly offensive because the credit card was what she described as unnecessary and discretionary expenses, the persistent failure to spend within his means, and in any event, she had “bailed” him out before and at that time said she would not do that again.  One must also remember that those particular incidents occurred during this separation under the one roof for many years.

21. In my view, without the evidence being tested, I cannot determine whether the husband has been profligate or just incurring normal lifestyle expenses that both parties acquiesced in.  The issue is not so much the liability because the responsibility of that can be determined at trial, but rather whether it is so urgent that the debt needs to be immediately reduced or discharged.  Having regard to what I perceive as problems associated with the extension of the mortgage indebtedness, I am not inclined to find that there is any urgency in that matter. 

22. In relation to the litigation funding order in Zschokke[1], the Full Court said:

    …where property settlement proceedings under s 79 are pending, the court may pursuant to the provisions of s 80(1)(h) (and independently of the power in s 117(2) to make a costs order) require the party who controls most of the assets of the parties to provide the other party with funds to conduct his or her case, with the provision of such funds then being a matter to be taken into account in the final settlement of property between the parties…

    [1] (1996) FLC 92-693 at 83-215; 20 Fam LR 766 at 781

23. In a recent Full Court decision of Bing and Bing[2], delivered on 4 May 2007, the Full Court referred back to Zschokke's case and said:

    In Zschokke the Court went on to discuss five criteria that had been identified by the trial judge as being appropriate to consider making an order for litigation funding.  They were:

    1.Complexity in the respondent’s financial affairs.

    2.The need for expert investigation into those affairs.

    3.A position of financial strength on the part of the respondent.

    4.A capacity on the part of the respondent to meet his own costs;  and

    5.An inability on the part of the applicant to meet her costs.

    [2] [2007] FamCA 418

24. In my view, there does not seem to be any complexity about the husband's financial affairs.  There is little difference between the parties in terms of financial strengths.  Each party has similar obligations to meet the costs, and should I order a sale of the shares and do what the husband wanted, the wife may be deprived of an ability to pay her costs.  Notwithstanding the difficulties this creates for the husband in dealing with his lawyers, I cannot say that this is an appropriate case to exercise my discretion to order a reshuffling of assets for the purposes of meeting costs, even where the trial judge will have the opportunity to make adjustments later.

25. It goes without saying that I also find that the wife does not have the current capacity to meet the outstanding livestock expenses sought by the husband.  That also is a matter that can be determined at trial.  If the creditors are unhappy to wait for their money, the parties will have to face the fact that as an intact functional family, they would have jointly approached the issue and, I would have thought, rationalised their lifestyles.  I detect a reluctance for that to occur here.

26. The next issue is the health insurance and telephone accounts.  This is a sad issue, best summed up in the parties' own words.  The husband said:

    Whilst we continued to live together in the matrimonial home, conflict developed between us and the wife threatened to cut off all financial support.  She stopped cooking for me and she no longer spent any time with [the child] and I as a family.  She refused to pay any accounts in my name, to provide food and household supplies for me or to assist me with the credit card payment which quickly reached its limit.  She removed me from the family health cover with […]…

27. In response, the wife said:

    …I have not cooked for him or spent time with him as a family since 1995...I have continued to provide food and supplies for the household which the husband also uses for himself…I did remove the husband from my private family health cover to contain my expenses when he has access [to] extra health benefits from his pension and his entitlement to the staff concessions on his personal bank account with my employer bank [which] was terminated when I refused to continue to misrepresent to the bank the nature of my relationship with the husband in order to qualify him for the concessions.  His concessions were continued when my area manager decided to retain them pending the conclusion of the current proceedings.

28. I therefore concluded that the issue of the health insurance and other normal incidents of household expenditure are again being met by the wife.  If that changes, these reasons can be revisited.  I do not propose to make orders in respect of those matters.

29. I then turn to the question of the exclusive occupancy.  The wife seeks the husband's exclusion from the home and an arrangement of the care for the child.  Although it is not set out in his application, the husband also seeks, if I was minded to go down that path, that it ought to be the wife who should be excluded.

30. Bearing in mind the agreed demise of the marriage relationship a long time ago, it is obvious that the parties have struggled along unhappily but somehow managed.  The wife says that I should exclude the husband because:

    The husband has always refused to leave the house in the past unless I agreed for [the child] to live with him.  Pending conclusion of the property settlement tensions between the husband and I have worsened.  I now fear for my safety if I am in [the] house alone with the husband.  In an incident in February this year husband began verbally abusing me and followed me into [the child’s] bedroom where he continued with his abuse and physically prevented me from leaving the room, he pushed me over and I feared for my safety, I was still recovering from my knee operation.  [The child] was in the house and could overhear what was happening.  I phoned the police and on realising this the husband then went outside the house and returned with scratches on his face telling [the child] that I had hurt him which I had not, the scratches were self inflicted.  The husband alleged to the police that I had assaulted him.  He then obtained an ex parte intervention order against me...

1. The incident referred to in February seems to have subsided.  The parties reached an agreement.  In other words, although the situation is unpleasant, they each managed.  Clearly, I cannot make findings, nor should I, on the materials which are untested.  The husband says:

   …I am not prepared to move out of the home.  [The child] and myself have nowhere to go and I would not consider leaving without [the child] and without suitable accommodation for her.  My father who lives at [G property] has recently sold his home and is moving to [C] which is over 100 km away.  I do not have the finances to obtain alternative accommodation for us.  The wife has recently been staying at her parents' home in [a Melbourne suburb].  If she is unable to tolerate the current living arrangements I propose that she vacate the home and reside with her parents…

2. Although the husband addressed what occurred earlier this week over the child after the conciliation conference, there does not seem to be any more recent evidence of issues other than the palpable unhappiness.  Mr Wilson, for the wife, pointed to the longstanding authority of Davis v Davis[3] (1976) FLC 90‑062 at 75-309. There, the Full Court said of the power in s 114 of the Act:

   The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

   [3] (1976) FLC 90-062 at 75-309; 1 Fam LR 11,522 at 11,524

3. In S & S[4], the Full Court on 7 February 2002 was dealing with an appeal from Faulks J, as he then was.  In that case at trial, the husband said:

   …the marriage had ended.  The wife had a poor relationship with the children…There is great tension in the home and we are all upset.

   [4] (2002) FamCA 59

4. Faulks J then said that the husband had suggested that the wife could live with her 80-year-old mother, because he had nowhere else to live.  He asserted that the children had told him that they wished to live with him and:

   The situation in the house is intolerable.  It is a three-bedroom home.  It is not so large that we can stay away from each other."

5. The Full Court went on to indicate that the material relied upon by the husband included an affidavit by the child, M, in which she deposed that the parties frequently argued.  She quoted her sister as saying that since the mother had come back:

   I wish she'd leave.  I don't want her here.  I can't stand it.

6. The Full Court then went on to say that the wife suggested that the house was large enough to accommodate all members of the family, with the husband occupying the study as a bedroom.  She said the working hours of the parties were such that there would only be a few occasions when they would be at the home at the same time.  She said that she had a strong attachment to the house that she wished to retain pursuant to the property settlement.  She acknowledged that she had some recent counselling over relationship difficulties.  She denied that the situation in the house was properly described as intolerable.

7. At first instance, Faulks J found:

   …from the material filed by the husband that there is at least substantial verbal conflict between [the parties] and that it is not likely that this will improve over a period of some twelve months in which the parties would be obliged to live together under the one roof before a final hearing was held if I were to accede to the proposition contended for by [the wife].

8. The Full Court referred back to Davis v Davis, as well as some English authorities and said:

   37.This was a case in which each of the members of this Full Court sitting as judges of first instance would have been reluctant to grant the injunction in the circumstances. 

   38.An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances. We agree with the sentiments expressed in G v J (Ouster Order) [1993] 1 FLR 1008 where the English Court of Appeal cited with approval a passage from Lloyd LJ in Burke v Burke [1987] 2 FLR 71 at 73 where his Lordship said:

   It must never be forgotten that an ouster order is a very serious order to make. It is described by Ormrod LJ…as a ‘drastic order’ and an order that should only be made in cases of real necessity. It must not be allowed to become a routine stepping-stone on the road to divorce on the ground that the marriage has already broken down and that the atmosphere in the matrimonial home is one of tension…

9. The Full Court went on to say that in the case before Faulks J:

   …the evidence was of a dysfunctional family home life, with tension and discomfort, especially for the adult child, and to a lesser degree for the 15-year-old.  It would be unlikely that the mere existence of tension and argument in the home, short of unacceptable conduct or a clear detriment to the welfare of a child, would lead us to exclude an owner of the home from the lawful occupation of his or her own home.  This would be especially true if there was no immediate viable alternative accommodation available…

10. However, the Full Court declined to overturn the trial judge's decision on the basis that it was a discretionary judgment and that their words are therefore obiter but very powerful and, in my view, compelling.

11. In the exercise of my discretion, I find it would not be proper for me to make an order under s 114 of the Act, excluding either party from the home at this time and on this evidence; I stress again, on this evidence and at this time. It follows therefore that at least until the court can have some more objective evidence about not only the views of the child but about what each role each parent should play in her life and also which proposal will foster her welfare best, it would not be appropriate for me to make any interim parenting order.

12. I must add that I propose to order that the matter will return to the Senior Registrar's list after the completion of the L report.  If there is to be some proposal for the future care thereafter of the child, the parties will need to express it clearly to the Senior Registrar and that must include a proposal for accommodation, bearing in mind my finding that it is not proper to order either party to leave at the moment.  The parties will not be able to revisit that finding without new evidence and the Senior Registrar will otherwise be confronted with both parties living in the current circumstances.

13. The L report is going to cost $1800.  The parties need some objective assistance, as does the court, but they do not agree on who should pay for the report.  The husband does not have the capacity and, as I understand it, the credit card facility is now unavailable because of the limit.  The wife does not have the capacity either to borrow or service any more debt.  However, she has some more flexibility than does the husband because of her income and employment.  Having regard to the quantum of the cost of the report, it is appropriate that in the first instant, the wife find the funds, but I propose to order that the husband pay one-half at the time of the property settlement, including one-half of any costs and expenses incurred to raise the loan.

14. I did indicate to the parties that I would hear submissions should they so desire on cost issues associated with my orders and I propose to make those procedural orders.  However, either party would be hard pressed to have me make any costs orders on what I have read and heard.  I equally would not be prepared to reserve the costs to the trial judge because that imposes on someone else my responsibility. 

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SKINNER & SKINNER