Sutton and Lasko

[2017] FCCA 2752

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTTON & LASKO [2017] FCCA 2752

Catchwords:
FAMILY LAW – Interim arrangements pending provision of family report – evidence of a good relationship between the father and children during supervised time pursuant to Orders made on 21 September 2017 – orders made for increased time between father and children – consideration of allegations of family violence and drug use – best interest of the children.

Legislation:

Family Law Act 1975

Goode v Goode (2006) 36 Fam LR 422

Applicant: MR SUTTON

Respondent: MS LASKO

File Number: MLC 9211 of 2017

Judgment of: Judge McNab

Hearing date: 2 November 2017

Date of Last Submission: 2 November 2017

Delivered at: Melbourne

Delivered on: 2 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Smallwood

Solicitors for the Applicant: Westminster Lawyers

Counsel for the Respondent: Mr Hamilton

Solicitors for the Respondent: Nevett Ford

ORDERS

THE COURT ORDERS BY CONSENT THAT:

UNTIL FURTHER ORDER

(1)The Applicant provide discovery of the following documents by 4.00pm on 17 November 2017:

(a)Chart of Business Holdings and Corporate Structure as at 1 July 2017 relevant to Mr Sutton;

(b)Documents including bank statements from 1 November 2016 to date evidencing all debts asserted by the Applicant together with documents evidencing the security associated with each debt;

(c)Copies of any trust deed of any trust of which he is a beneficiary;

(d)Copies of any taxation returns and financial statements for the past 2 years for all corporate entities including trusts controlled by the Applicant.; and

(e)Copies of personal taxation returns of the Applicant for the past 2 years.

THE COURT ORDERS THAT:

(2)Paragraph 6(b) of the orders made 21 September 2017 be varied as follows:

(a)from 25 November 2017 the Saturday time be increased from 8.00am to 4.00pm; and

(b)from 15 December 2017 the Saturday time be expanded to commence at 6.00pm Friday and to conclude at 6.00pm Saturday.

(3)The parties do all things required to facilitate the production of a Family Report by Mr T at equal expense and it is noted that an appointment has been made with Mr T for this purpose on 31 January 2018.

(4)Each party be and is hereby restrained from denigrating, belittling or criticising the other to the children or either of them or in their presence.

(5)Each party use their best endeavours to prevent any other person denigrating, belittling or abusing the other verbally or by written communication. 

(6)The matter be adjourned to Federal Circuit Court of Australia on 8 March 2018 at 9.30am for Mention.

(7)The matter be adjourned to Federal Circuit Court of Australia on 4 February 2019 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

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

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

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

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

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

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

(9)Where each party has legal representation, not later than 2 days prior to the commencement of the trial the parties file a properly prepared document setting out:

(a)an agreed list of issues required to be determined by the court; and

(b)a statement of agreed facts relevant to the agreed list of issues.

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

PROPERTY

(a)        a list of the material relied upon;

(b)        a brief chronology listing significant events;

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

(d)        main contentions on disputes as to:

(i)  inclusion of items in the pool; and

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

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

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

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

(h)        the actual orders sought.

PARENTING

(a)        a list of the material relied upon;

(b)        a brief chronology listing significant events;

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

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

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

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

(g)      the actual orders sought.

(11)Each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

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

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

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9211 of 2017

MR SUTTON

Applicant

And

MS LASKO

Respondent

REASONS FOR JUDGMENT

(delivered ex tempore)

1.Orders were made by consent on 21 September 2017, which include, by order 6, that the father spend each Wednesday from 4:00pm to 6:00pm and each Saturday from 8:00am to 10:00am in supervised time with the children for the first six occasions that he spends that time with them.

2.Order 7(c) of those orders provided that the father obtain and meet the costs of a report from the professional supervisor at the conclusion of the six supervised occasions of contact and that provided that the report does not raise any significant concerns about the time spent, the requirement for supervision cease.

3.The Court has been provided with a report from the Family Contact Service, Ms J, and that gives a detailed account of the interaction between the father and the children on Saturday 30 September, Saturday 7 October, Saturday 13 October, Wednesday 18 October and Saturday 21 October 2017.

4.Without quoting from it, on my reading of that account the time that has been spent between the father and the children has gone extremely well.  There is a sense of joyousness about the interaction, the children seeming relaxed and comfortable with the father and the father is behaving appropriately with the children. There is nothing in that report indicating that there has been any behaviour which would suggest the children have not enjoyed their time with their father.

5.This is contrary to what is said by the mother in paragraph [21] of her affidavit affirmed 1 November 2017, wherein she states:

The children have been upset and difficult to settle after their time with the applicant.  They are having real difficulty with the time with their father at present.

6.Having regard to the fact that Ms J is an experienced supervisor, she has provided a detailed and comprehensive account of the time that the children have spent with the father and that she is non-partisan, I accept her account of how the children spend time with the father. There is no evidence that the children are having real difficulty with their time with the father at present. Notwithstanding this, the mother has not allowed the father to have time on, I understand, two occasions since the supervised time finished. 

7.The issue is what occurs between now and the time for obtaining a family report. Orders have been made for the parties to attend an appointment for that purpose on 31 January 2018.

8.In my view, there should be some variation of the orders that were made on 21 September 2017. There have been competing proposals in relation to the time that the father spends with the children:

a)the father proposed that the Saturday time for the next four weeks be extended from 10:00am to 6:00pm and the Wednesday arrangement remain in place. After four weeks, he proposed that the time be extended from Friday evening to Sunday evening each alternative weekend and the Wednesday arrangements remain in place.

b)the mother proposed increasing the Saturday time by two hours so instead of time being from 8:00am to 10:00am it run from 8:00am to 12:00pm and the Wednesday remain the same.

9.The orders that I have made are in effect a compromise between the competing positions and provide an opportunity for the father to spend meaningful time with his children but on a more limited basis than that which he proposed. Given that there are clearly ongoing tensions between the parents regarding arrangements for the children, in my view the graduated approach which is reflected in the orders is one that is likely to lead to less tension. In view of the extremely positive account of the time that the father spent with the children in a supervised setting, in my view the children will benefit from spending a longer period of time with their father.

10.The mother filed an affidavit sworn 1 November 2017 which detailed what she regarded as breaches of an intervention order which occurred in the period up to 9 September 2017. These include allegations of telephone calls made by the father to the mother and instances where the mother saw the father drive past and then pause and look into the window of the business operated by the mother in (omitted) Street.

11.The affidavit also sets out a translated Facebook message from the father’s new partner to the mother which was highly derogatory of the mother (particularly her appearance). That text message was sent in May 2017. The message was plainly inappropriate and was accepted as such by counsel for the father and I expect that no further similar communications will be made by the father’s new partner. Text messages between the mother and the father which were tendered to the court indicate that they both have a poor approach to communicating with one another.

12.The allegations made by the mother in her most recent affidavit relate to events which are alleged to have occurred prior to the orders made on 21 September 2017. There is no evidence of any allegation of further incidents since those orders were made. I do not believe the allegations of family violence are such to affect the father’s capacity to parent or to put the children at risk whilst in his care.

13.The mother made allegations of drug use in her affidavit, in particular marijuana use. The allegations are vague and I note that the mother has not sought orders that the father submit to drug tests. The evidence does not establish on an interim basis that the children are at risk because of the father’s alleged drug use.

14.In my view, these orders are appropriate and are in the best interests of the children. They were formulated by the Court following discussion with the party’s representatives in open Court.  I have made these orders having regard to the principles stated in Goode v Goode (2006) 36 Fam LR 422 at [82].

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 10 November 2017