Talcott & Talcott
[2009] FMCAfam 1384
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALCOTT & TALCOTT | [2009] FMCAfam 1384 |
| FAMILY LAW – Interim parenting – father lives in Hong Kong – attitudes to parenting – equal shared parental responsibility – spending time with the father overseas. FAMILY LAW – Interim property – maintenance – child support – costs. |
| Family Law Act 1975, ss.61DA, 64B Child Support (Assessment) Act 1989, s.139 |
| Applicant: | MS TALCOTT |
| Respondent: | MR TALCOTT |
| File Number: | SYC 2163 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 18 November 2009 |
| Date of Last Submission: | 18 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Watts Mccray Lawyers |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Barkus Doolan Kelly |
ORDERS
The parties have equal shared parental responsibility for the children.
The children live with the wife.
The children spend time with the husband as follows:
3.1.during each of the shorter school holiday periods:
3.1.1.for up to 7 days in a block period and in particular:
3.1.1.1.from 2 – 9 April 2010 inclusive in Hong Kong;
3.1.1.2.each other period in Australia.
3.1.2.the husband to provide not less than 42 days’ written notice to the wife of the nominated dates in each holiday period;
3.1.3.not less than 7 days prior to departure, the husband to furnish to the wife a written itinerary to include the departure/return flight details and those of the country or countries that the children will be travelling to, the approximate times that the children will arrive and depart each country and a telephone number and address at which the children and husband can be contacted in each country;
3.1.4.the husband facilitate the children telephoning their mother on not less than 2 days’ per week during periods that they are with him;
3.1.5.the children shall only be permitted to travel to countries that are convention countries recognised for the purposes of Schedule 2 of the Family Law (Child Abduction Convention) Regulations (Cth).
3.2.during the December/January school holiday period:
3.2.1.in the 2009 school holidays, from 18 – 24 December in NSW;
3.2.2.not less than 7 days prior to commencement, the husband to furnish to the wife details of where the children will be staying and a telephone number and address at which the children and husband can be contacted;
3.2.3.the husband will facilitate the children telephoning their mother on not less than 2 days per week during periods that they are with him.
3.3.during any further period that the husband is in Sydney, then for periods with the husband of up to 7 days on each trip, subject to the following conditions:
3.3.1.provision of not less than 21 days’ written notice from the husband to the wife of the dates in question;
3.3.2.provision by the husband to the wife 7 days prior to arrival of contact details as to where the children will be staying with him in Sydney;
3.3.3.the husband will ensure that the children attend school and any pre-arranged school related extra-curricular activities during the period he is in Sydney and for this purpose the wife will provide the husband with those details 7 days prior to commencement of his time;
3.3.4.the husband will facilitate the children telephoning their mother on not less than 2 days per week during periods that they are with him.
4A.To facilitate overseas travel of the children as referred to above:
4A.1the wife shall be responsible for delivering the children to Sydney Airport on departure and collect them on arrival home from the same venue;
4A.2the children will be accompanied on any international travel by the husband;
4A.3the husband will be responsible for collecting the children from the airport overseas on arrival and delivering the children to the airport for departure back to Australia.
4B.When the children are spending time with the husband in Australia, he will collect and return the children from and to the wife’s residence.
The children communicate with the father at all reasonable times as mutually agreed between the parties and failing agreement then as follows:
5.1.the father to telephone each Tuesday and Thursday between 7.30pm and 8.00pm;
5.2.the mother shall not interfere with, or monitor, the contents of the telephone calls;
5.3.the mother shall maintain a landline telephone number to which the call can be placed by the husband;
5.4.if the child(ren) are not home when the call is placed by the father, then the mother will send a text message to the husband immediately upon her return to the house inviting the husband to call again and the husband then be at liberty to call back the wife’s landline number;
5.5.by Skype or other video conferencing facility, with the father to send an email to the mother by Wednesday of each week with a proposed time/date for the forthcoming weekend for the children to have a video call with their father. In the event that the time/date proposed by the father does not suit the child or children, the mother will reply forthwith by email with an alternative time/date for that weekend. The father will be responsible for placing the video call at the agreed time/date. In the event that, for whatever reason, the child(ren) is not available or there is an equipment problem then the mother will forthwith arrange as soon as practicable for the children to thereafter place a return video call to the father using Skype;
5.6.the Court NOTES that the mother will encourage the children to place their own telephone calls and Skype calls to the father and/or to the father’s mother at any reasonable time requested by them;
5.7.in addition to the above, the father will be at liberty to place video calls or telephone calls to the children (if they are not otherwise in his care) on each of the following dates and the mother will send a text message to the father the day before with a nominated 1 hour period during which the husband may place the call and whether the call should be a video or telephone call:
5.7.1.Father’s Day;
5.7.2.the father’s birthday;
5.7.3.the children’s birthdays;
5.7.4.Australia Day;
5.7.5.Christmas Day;
5.7.6.New Year’s Eve.
That pending further Order:
6.1.each party shall notify the other party as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by any of the children whilst in the care of that party;
6.2.the wife shall within 7 days of the date of the making of these Orders, provide to the schools attended by each child an authority authorising it to supply to the husband particulars of each child’s welfare and progress at the school, details of upcoming functions or activities and any other information disseminated by the school to parents and children attending the school;
6.3.the wife shall forthwith provide to the husband the name and age of any boarder or other person living in the household with the wife and children from time to time.
The husband and wife shall do all acts and things and sign all documents necessary to maintain valid Australian passports for each child. If either party loses or misplaces the passports they will be responsible for the replacement within 2 weeks and any costs associated with the loss.
In the event that the wife has caused any airport watch listing to be put in place in relation to the removal of the children from the Commonwealth of Australia, that the wife forthwith do all acts and things and sign all documents necessary to cause a copy of these Orders to be served on the relevant person or authority to enable transmission of the children to and from Australia in accordance with these Orders.
That pending further order:
9.1.the passports for each of the children be delivered up by the wife to the Registrar of the Sydney Registry of the Federal Magistrates Court of Australia and held pending:
9.1.1.receipt by the Registrar of a letter in writing, co-signed by the legal representatives on the record for each of the husband and wife, authorising a release of the passport(s) to one or other party from time to time; or
9.1.2.further Order of this Court; and
9.2.upon the return of the children to the Commonwealth of Australia in accordance with these Orders, the passports of the children shall be delivered up to the safe custody of the Registrar and again held on the same terms and conditions that apply above.
The wife be restrained from:
10.1.denigrating the husband and/or any person in a domestic relationship with the husband to or in the presence of the children.
10.2.denigrating the husband, in written form by:
10.2.1.emails to third parties;
10.2.2.postings on her Facebook or other social networking pages;
10.2.3.in any other documentary form;
10.3.contacting by telephone, email or other means the husband’s place of employment and the husband’s employer’s staff except in the event of an emergency involving the children and for the purpose of contacting the husband to notify him of the emergency;
10.4.contacting by telephone, email or any other means the husband’s colleagues, and work associations of the husband and contractors of the husband’s employer.
The husband and the wife are restrained from:
11.1.Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
11.2.Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
FINANCIAL ORDERS: THE COURT ORDERS PENDING FURTHER ORDER THAT:
The husband’s pay the following, on the basis that characterization of same is left to the judicial officer at final hearing:
12.1.the mortgage over the Property P home as required by the Bank and all outgoings on the said property as and when they fall due comprising council and water rates, contents and building insurance, and land tax if applicable;
12.2.without prejudice to the husband’s continuation of his final parenting orders in respect of the place of secondary education, that:
12.2.1.[X] attend [S] School from the start of the 2010 school year, and the husband meet tuition fees;
12.2.2.the husband meet all tuition fees for [Y] and [Z] at their current school at [A];
12.2.3.the sum of $4838 per calendar month.
The husband forthwith do all acts and things and sign all documents necessary to cause the net proceeds of the Property M property to be paid in the following manner:
13.1.payment of the outstanding Veridian Account with the Commonwealth Bank;
13.2.payment of the wife’s Visa Card;
13.3.the balance then split equally between the parties with the husband’s share to be deposited in a bank in Australia.
THE COURT NOTES THAT:
The wife has not yet applied for a child support assessment. These orders cover, in part, matters potentially relevant to the said assessment. Both parties have leave to relist on 7 days notice once an administrative assessment has issued and after internal administrative processes for review have been completed.
The court notes the mother’s undertakings given through her counsel that:
15.1.she will facilitate an ongoing relationship between the children and the paternal grandmother; and
15.2.she will not dispose of personal property at the former matrimonial home without the consent of the husband.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 6 September 2010 at 10.00am for a three day final hearing.
Each party file and serve any affidavits on which they intend to rely by no later than 20 August 2010. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 20 August 2010.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
19.1.The affidavits on which the party will rely at hearing;
19.2.The Orders sought at hearing;
19.3.One list between the parties setting out the values of assets and liabilities to be relied on at hearing, each to be marked “agreed” or “in dispute”.
Pursuant to rule 15.09, if the parties are unable to agree on property valuation by 30 April 2010, the parties appoint a single joint expert to value the property by 31 May 2010 with a report to be made available by 30 July 2010. The parties to share equally in the costs of the valuation.
IT IS NOTED that publication of this judgment under the pseudonym Talcott & Talcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2163 of 2009
| MS TALCOTT |
Applicant
And
| MR TALCOTT |
Respondent
REASONS FOR JUDGMENT\
(Ex tempore)
The applicant, in this case is the wife or the mother, I’ll use the term interchangeably in these reasons, and the respondent is the father or the husband. The matters before me are both financial and parenting. There are three children of the marriage: [X], [Y] and [Z], aged 11, 9 and 6 respectively. The father currently lives in Hong Kong and the mother and the children here in Sydney. They previously resided as a family in Hong Kong where the father works. The marriage broke down and the mother and the children returned to Australia.
The application of the mother and the mother’s proposal are contained in minutes of order that she provided through her counsel on the day, and the father’s proposal is contained in minutes of order that were provided by his counsel on the day. I propose to deal with the issues simply by addressing the issues that were raised by counsel based on the evidence before me.
Firstly, I deal with the issue of equal shared parental responsibility or sole parental responsibility. The father says there should be equal shared parental responsibility; the mother says sole parental responsibility. The mother’s case, in this regard, emphasises the geographical and logistical issues that are raised in this case. She is here in Australia with the children, the father is in Hong Kong. She is also, plainly on the evidence, the current and historical primary carer of these children.
However, it is significant to note that in the mother’s own reply that was filed on 5 November, just a few weeks before this matter, in fact only 13 days before I heard this matter, she was seeking an order for equal shared parental responsibility. Her case put at its highest is that sole parental responsibility reflects the realities of the family situation. I do not accept that and I do not accept that there is any evidence that either rebuts or negates the application of the presumption under section 61DA and accordingly I make an order for equal shared parental reasonability. I must say I think this was an unnecessary issue to raise in the context of interim litigation, and even the mother’s own counsel put the arguments lightly.
The next issue is what parenting orders ought to be made for contact. The mother proposes that there be contact in New South Wales between 18 and 24 December 2009 and the father agrees with this. The mother proposes that there be further contact between 1 and 6 April 2010 in Sydney, but he proposes this be up to 10 days in Hong Kong in April or, indeed, elsewhere subject to it being a Hague Convention country. It’s common ground that the mother is the primary carer of these children and she says that the children have not been out of her care even when the father has had contact. The father’s contact with the children is set out in his affidavit of 29 September at paragraph 21. Given the geographical issues in this case, the father has enjoyed frequent contact with his children. The father also asserts that he was involved in the children’s lives before separation, though he concedes that this was limited by his hours of his work.
The mother raises a number of issues about the father’s real interest in the lives of the children, the nature and quality of their relationship, his capacity as a father and attitudes to parenting. There is no evidence on which, at an interim level at least, I could make such findings. Firstly, it’s inconsistent with the frequency of contact since date of separation. Nextly there is, by contrast, ample evidence in the form of the mother’s email correspondence that raise concerns about the mother’s own attitudes about parenting. Her own counsel quite properly conceded that this correspondence did his client little credit, but did not amount to evidence from which it could be inferred that she was seeking to exclude the children from the father’s life. I agree in this regard that the history of contact is positive. However, a reasonable inference is that she is ambivalent about contact and protection of the children from the conflict. I detect a certain anxiety in the mother about the children spending time with the father, but it is an anxiety that, on the evidence before me, lacks an objective basis. Nonetheless, it is her anxiety and it is one that I take into account.
As the evidence about the children indicates they have a clear historical connection with Hong Kong. I cannot see why they should not travel there with their father or, indeed, anywhere else subject to the Hague Convention issues. These are clearly well travelled children. However, they have not travelled without the mother or father, and this, at least for the time being, rules out unaccompanied minor travel. This may well address some of the mother’s concerns. Also I am concerned about 10-day absences from the mother, hence I intend to limit the maximum period away from the mother to seven days, and I note that all of these issues can be revisited when a family report is in fact obtained.
I note the mother raises issues about the father’s lack of insight in relation to the children, as is evidenced, for example, by the final orders that she seeks. I make this observation, however, and that is that generally in parenting cases, one parent does not have a monopoly on lack of insight. These are matters that are best decided at a full hearing.
The father wants an order providing for contact between the children and the paternal grandmother who has put on evidence. The mother says no order can be made as the grandmother is not a party to the proceedings. Notwithstanding this, however, through her counsel the mother says she will still endeavour to facilitate an ongoing relationship between the children and the grandmother. The evidence does tend to indicate that such a relationship exists. I believe there is a power to make an order under section 64B which, it should be noted, clearly contemplates the making of an order for contact, whether or not a person is party to the proceedings, and section 64B clearly contemplates a grandparent. However, I don’t think it’s appropriate to do so in the context of interim proceedings. To make such an order could further antagonise an already sensitive relationship between the mother and the father and put the children under greater strain than is already the case. I will note the mother’s counsel’s undertaking, as indicated to me, that the mother will endeavour to facilitate an ongoing relationship between the children and the paternal grandmother, and again, this is an issue that can be revisited at a final hearing.
There are ongoing issues regarding communication that I think are best addressed by the making of very clear orders. I prefer the orders proposed by the father in this regard, and am satisfied on the evidence that what is sought is reasonable and proportionate to the issues that are raised in this case. I must say I didn’t detect any strong opposition to this from the mother, in any event.
The father’s proposed order 11 does raise some issues. The need for this arises out of the emails sent by the mother, extensive evidence of which was available to me. These emails are less than flattering of the mother. The potential harm that would be caused to the children by the publication of these communications is inestimable. I am satisfied that 11.1 to 11.4 are necessary, is proportionate to the issues raised by the father, and is in the children’s best interests. There is insufficient evidence to warrant the injunction at 11.5, but again I note that without admissions undertakings of the mother given by her counsel that she will not dispose of any personal property of the husband or the wife pending final hearing. Orders 12 and 13 I am not prepared to make for the time being. These are matters that are best dealt with by invoking the relevant court rules, and in this regard I’m talking about the discovery-type orders.
I turn now to financial issues, firstly, interim costs. Even if the husband had not proposed an interim distribution of property, I would not have made the order for interim costs. There is insufficient evidence to warrant it. There is no evidence to indicate that the wife’s solicitors would not continue to represent her if the costs were not paid. In particular and in any event the wife will receive a fund out of which she can pay her costs, and it is not out of the question that she might apply again at a later time. In terms of spousal maintenance, the wife wants the husband to pay out her ANZ Visa card, a lump sum of $40,000 as well as $2800 per calendar month. The wife also wants the husband to pay the mortgage and outgoings on the former matrimonial home at Property P. The husband offers to pay the mortgage on the former matrimonial home and to apply the sale proceeds of the Property M property, that is about $A187,000, towards the payment of the CBA Veridian account, and then 50/50 to the husband and the wife, which would give them about $80,000.
The financial statements of both the husband and the wife indicate a surplus of income over expenses. This is, in the case of the wife, because he pays to her $4838 per calendar month and the mortgage and health insurance. At one level it could be argued that the wife has not established need, but I think this would be entirely misleading because of her total dependence on the husband to support the family. When children’s expenses are factored into the picture it is quite different. I note that there is no child support assessment as yet. That is unfortunate and I must say has made dealing with issues of support for the family more complicated. I note that the wife seeks urgent child support and I will deal with this separately in due course.
I think there is a need in this case to look at the wife’s needs and the children’s needs collectively, and having regard to the history of support provided by the father to date. It seems to me that based on the evidence available to me the needs of the wife and children are met if the husband pays, firstly, the mortgage on the home, secondly, the outgoings on the home, thirdly, the tuition fees for the children at their school, and fourthly, the existing level of support at $4838 per calendar month. The disclosed needs of the wife and children are being met to a reasonable level if these payments are made. I note that the only difference between what the husband is offering to pay and what I order him to pay is the outgoings on the home and the tuition fees on an uncapped basis. I am satisfied that the wife needs both of these, and that the husband clearly has the capacity to pay, especially as the sale of the Property P property will mean that he no longer has a mortgage to service in this regard.
Now, of course, the lump sum distribution needs to be taken into account. The husband proposes the payment of the Veridian account, and there’s no opposition to this. This will come out first, if not already paid. The wife needs her Visa card paid out, and I can’t see any reason not to do so. That will be the next payment out of the fund. The husband proposes next that the money be divided equally, even though the wife only asks for $40,000. The husband’s proposal is more beneficial to the wife, so I propose to split the remaining money equally, but of course it should be remembered that the characterisation of all of these payments is a matter to be determined by me or anyone else, for that matter, at the final hearing. I am satisfied that, on the available evidence, these orders will meet the needs of the wife and the children, and are within the capacity of the husband to pay. All of these payments will be characterised at the final hearing, and therefore there is no prejudice to anybody in doing so.
I note that compared to the wife’s current financial circumstances, she is better off because, firstly, her existing income from all sources, including expenses paid for her by the husband are all preserved. Nextly, the Veridian account is paid, her ANZ Visa card is paid and she receives a not inconsiderable lump sum.
There is an application for urgent child support. The wife asks under section 139 of the Act for urgent maintenance totalling $6000 per calendar month for the children plus $2000 to pay for uniforms. The urgency is not established on the evidence, and even if it were, it is being met by the orders to which I have referred above. She has not applied for child support as yet. I’m not sure whether she will, having regard to the orders that I make. But if an assessment does issue, it will need to take into account these orders, especially, but not necessarily limited to the payment of school fees, the payment of the mortgage and the other payments for the benefit of the wife.
As I’ve indicated before, one of the difficult issues in this case is the interrelationship between a potential child support assessment and the orders I have made. If an assessment issues it may not automatically take into account the provision that has been made for the family in these orders. I acknowledge that the orders I make create some uncertainty in this regard, but given that there’s no child support assessment, it’s not an uncertainty I can resolve today. It would have been better for a child support assessment to have been sought. But in any event, that is not the case. The husband wanted me to restrain the wife from seeking such an assessment. I doubt if I have the power, and quite frankly it is unlikely that I would have exercised it. I think the best way to deal with this issue is to give the husband the opportunity to relist this matter before me if a subsequent assessment of child support creates difficulty subject, of course, to the father having pursued internal administrative processes for review first.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 24 December 2009
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