Tamberdun and Tamberdun

[2009] FamCA 572

FAMILY COURT OF AUSTRALIA

TAMBERDUN & TAMBERDUN [2009] FamCA 572

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – attend course – non-denigration – appointment of single expert – child permitted to be removed from the jurisdiction for the purpose of travelling overseas for a holiday
FAMILY LAW – MAINTENANCE – spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: MR TAMBERDUN

RESPONDENT: MS TAMBERDUN

FILE NUMBER: SYC 6862 of 2008

DATE DELIVERED: 21 May 2009

PLACE DELIVERED: SYDNEY

PLACE HEARD: SYDNEY

JUDGMENT OF: LOUGHNAN J

HEARING DATE: 21 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Levy

SOLICITOR FOR THE APPLICANT: Somerville & Company

COUNSEL FOR THE RESPONDENT: Mr J Lloyd

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. Until 28 July 2009 the child … born … May 1999 live with the father from after school each Wednesday until 8:30 pm and from after school each Friday until 11:00 am the following day.

2. From 28 July 2009 until further order the child live with the father each Wednesday from after school until before school each Thursday, in each alternate week from after school Friday until 11:00 am Saturday and each intervening week from after school Friday until 8:30 pm Sunday.

3. At all other times unless the parties agree to the contrary in writing the child is to live with the mother. 

4. That the arrangements in Orders 1, 2 and 3 shall continue during school holiday periods with any period that ordinarily commences “after school” to commence at 3:00 pm and any period that ordinarily commences “before school” to commence at 9:00 am.

5. For the purposes of changeover on school days, the father shall collect the child from school at the commencement of his time and shall return her to school at the conclusion of his time, unless otherwise agreed between the parties.

6. For the purposes of changeover on non-school days, the father shall collect the child from the mother’s home at the conclusion of his time, unless otherwise agreed between the parties.”

7. By consent orders are made in terms of paragraphs 1-4, 10, 11, 12, and 13-19 of the document titled “Interim Orders Proposed by the Independent Children's Lawyer” marked Exhibit A, as set out hereunder, adding at 13 (j) after the word “significant” the words “or overnight”.  The Court noted the matter at paragraph 20 of that document:

   “1.That pursuant to section 13C of the Family Law Act 1975 the parties shall within 7 days contact UNIFAM on [phone] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for that program.

   2.The parties shall attend the appointment at any reasonable location nominated by UNIFAM and complete the assessment.

   3.If assessed as suitable and UNIFAM nominates counselling, mediation or a program to attend, the parties shall attend (as the provider directs) as soon as practicable and the parties shall facilitate the attendance of any other person(s) as nominated by the provider.

   4.The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.

10.That each party shall use their best endeavours to ensure that the child sleeps in her own bed whenever she is in their care.

11.That, on a without admissions basis, each party shall be and hereby is restrained from:

a)     Using physical discipline on the child.

b)Discussing the court proceedings or any of the allegations raised in these proceedings with the child, or with any other person in the child’s presence or hearing (other than for the purposes of orders 1-4 herein or the preparation any expert's report ordered in these proceedings).

c)Showing the child any documents associated with these proceedings (including but not limited to orders, affidavits and correspondence), or showing or discussing such documents to or with any other person in the child’s presence or hearing.

d)Denigrating or making derogatory remarks about the other party, or any member of the other party's household, to the child or in her presence or hearing.

e) Allowing any other person to denigrate or make derogatory remarks about the other party, or any member of the other party's household, to the child or in her presence or hearing.

12.That, on a without admissions basis, the father shall be and hereby is restrained from showering together with the child.

13.That pursuant to Division 15.5.2 of the Family Law Rules 2004, Dr. R, Child and Family Psychiatrist, be appointed as the Single Expert Witness to enquire into and report upon matters relating to the welfare of the child, …, born … May 1999, and that in preparing her report to the Court, Dr R be requested to consider the following matters:

a)Whether the child has been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;

b)Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

c)The nature of the relationship between the child and each of her parents and older brother, J;

d)The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

e) The likely effect of any change in the child’s circumstances including the likely effect on her of any separation from either of the parents or any other person with whom she has been living, including her older brother, J.

f)The capacity of each of the parents to provide for the child’s needs, including her emotional needs;

g)Each parent's attitude towards the child and the responsibilities and duties of parenthood;

hThe capacity of the parents to communicate with each other and co­operate in relation to the child’s parenting in the future.

i)Whether either of the parents suffers from any psychological or psychiatric condition, and if so, the impact of that condition on their parenting capacity.

j)The effect on the child of spending equal time or substantial and significant or overnight time with each parent having regard to the parent's current and future parenting capacity.

k)Any other matter the Court Expert considers relevant.

14.That each of the parties who is not in possession of a grant of Legal Aid and for whom Legal Aid NSW has not waived the cost for the preparation of the Court Expert report shall each be jointly liable for half of the cost of Dr. R’s Report and within 21 days each of the parties pay the sum of $1,650.00 (one thousand six hundred and fifty dollars) being one half of Dr R’s estimate of fees into the Trust Account of Legal Aid NSW for payment to Dr. R on completion of her report.

15.That in the event that there remain monies available subsequent to the receipt of the final memorandum of fees from Dr R, these monies are to be returned in equal shares to the father and the mother.

16.That in the event that there is a shortfall in relation to the payment of Dr. R’s memorandum of fees, the father and the mother are each to pay half of such additional sum to meet the cost of Dr R’s report within 14 days of a request by Legal Aid NSW.

17.That in the event that any of the parties requests the Independent Children's Lawyer to make arrangements for the attendance of Dr R at Court in relation to this matter, the parties shall be equally responsible for Dr R’s costs in respect of such attendance.

18.That the parties facilitate the preparation of the Report including attending on and arranging for the child and/or any other person to attend upon Dr R.

19.That the Independent Children's Lawyer in due course provide to the Court Expert copies of all pleadings filed in these proceedings and such other documents as may be agreed between the parties and the Independent Children's Lawyer or as may be ordered by the Court.

20.That the Independent Children's Lawyer is under no obligation to brief the Court Expert until the parties have complied with order 14 above.”

1. Orders are made in terms of the Amended Application in a Case filed on behalf of the father on 19 May 2009 in terms of paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 as set out hereunder and subject to the written consent of both parties an order is made in terms of paragraphs 15 and 16 of that application as set out hereunder:    

   “5.For the purpose of the father collecting the child pursuant to these orders, the father shall be permitted to arrange for the child to be collected from school or from her mother’s residence in accordance with these Orders by the following persons:-

   5.1    … (Grandmother); or

   5.2    J (Brother); or

   5.3    A (Uncle); or

   5.4    N (Uncle); or

   5.5    L (Aunt); and/or

   5.6    J (Aunt).

   6.For the purpose of facilitating the collection of the child pursuant to these Orders, the father shall be permitted on any Wednesday or Friday afternoon to arrange for the child to attend after school care at the  W Public Primary School in the event that his work commitments prevent him from collecting the child at the conclusion of the school day in accordance with these orders.

   7.In the event that the father is prevented from spending time with the child on a Wednesday or Friday night pursuant to these Orders by reason of necessary interstate or overseas travel for business, the father shall spend make up time with the child as agreed between the parties and failing agreement the Tuesday night subsequent to the father’s business trip from after school on Tuesday until the commencement of school Thursday.

   8.The mother shall not prevent or hinder the child from taking personal items to the father’s residence including but not limited to the following:

   8.1School clothing, shoes, summer/winter uniforms, sporting uniforms, personal clothing, shoes, belts, pyjamas and other personal apparel.

   9.The parties shall encourage the child to transfer personal items and effects between the parties’ residence including school items, recreational items and sporting items.

   10.That each party facilitate the child communicating with the other parent by telephone at reasonable times and with reasonable frequency at times agreed by the parties and failing agreement between 6.00pm and 7.00pm on every second evening when the child is in the care of the other parent or at such other reasonable times as the child may request with the party seeking such communication and the other party to facilitate such communication.

   11.    That each party will, whilst so ever the child is in their care:

   11.1.Notify the other parent as soon as possible of any serious illness or injury suffered by the child whilst in their respective care; and

   11.2Notify the other parent of any attendance by the child at any medical/dental appointment;

   11.3Notify the other party of any matter that does or may affect the child’s psychological, intellectual, mental or physical state.

   11.4Notify the other parent and keep the other parent notified of a telephone number where he/she may be contacted in the event of an emergency.

   12.Each party shall notify the other not less than 7 days before changing that party’s address, of such mobile telephone number, of such change.

   13. That within 28 days of the date of these Orders, both parties shall do all acts and things and sign all documents necessary to ensure that the child’s passport be placed in a safety deposit box and neither party shall release the passport without the authorisation of the other party.

   14.That the parties shall do all acts and things and sign all documents necessary to renew and/or replace the child’s passport upon the expiration of the validity of her passport pending the child attaining the age of 18 years.

   15. For the purpose of order 4 hereof, the parties agree either party should be permitted to take the child out of Australia for holidays and in relation to either party taking the child out of Australia the parties agree as follows:-

   15.1So far as practical the occasions on which either party takes the child out of Australia are to coincide with normal school holidays;

   15.2The party proposing to take the child out of Australia shall give the other party as much notification as possible of his or her intention to take the child out of Australia and in any event will give not less than 30 days written notice of such intention;

   15.3The party proposing to take the child out of Australia shall furnish to the other party not less than 14 days prior to the proposed departure, an accurate itinerary to include a copy of the party and the child’s airline tickets (if not electronic ticketing), the departure date and return date, the country or countries the party and the child will be travelling to, the approximate date on which the party and the child will arrive and depart each country and a telephone number and address at which the party and the child can be contacted in each country.

   16.On the occasions that either party proposes to take the child out of Australia, the other party shall release to the party proposing overseas travel, within 7 days of that overseas travel, the child’s passport for the purpose of such travel and within 48 hours upon their return to Australia, shall return the passport to the bank to be placed in safe custody.”

2. Until further order, orders are made in terms of paragraphs 7 and 8 of the Minute of Orders Sought on behalf of the Wife marked Exhibit B, as set out hereunder, in each case subject to the prior written consent of both parties to that travel.

   “7.That the wife is hereby permitted to remove the child from the Commonwealth of Australia for the purpose of travelling overseas for a holiday to Singapore and the Maldives during the period 14 July to 25 July 2009 and the wife shall provide to the husband in writing not less than 2 weeks prior to departure, telephone contact details such as will allow the husband to contact the child whilst the child is on holidays with the wife overseas and the husband’s time with the child shall be suspended during the said period.

   8.In the event that the wife wishes to take the child on holidays on not more than 4 occasions each year for a total period of not more than 21 days, for no more than 10 continuous nights, provided that the wife provides to the husband no later than 21 days prior to her proposed date of departure:

   8.1  a copy of her itinerary, including flight details (if any);

   8.2the address at which the wife and the child will be staying, along with a landline telephone number.

   the wife will be permitted to take the child on any such holiday as she may propose and any time the husband is to spend with the child shall be suspended during the said holiday period.”

3. In relation to the order made in terms of paragraph 5 of the husband’s Amended Application in a Case filed 19 May 2009, by consent as soon as practicable the husband is to give notice to the wife of the identity of the person who will collect or deliver the child.

4. In relation to the order made in terms of paragraph 7 of that same Application by consent unless the parties otherwise agree in writing, the husband will give the wife at least 14 days prior written notice of any occasion when he will be unable to exercise time with the child for that reason.

5. Orders are made in terms of paragraphs 19 and 20 of Exhibit B as set out hereunder, changing the figure $1606 to $800 in paragraph 20:

   “19.That the husband pay by way of spouse maintenance as and when they fall due:

   19.1all mortgage instalments of interest and principle and all other applicable charges with respect to the Westpac mortgage secured against the title to the [S] property;

   19.2All outgoings with respect to the [S] property including but not limited to:

   19.2.1council rates;

   19.2.2water rates and usage;

   19.2.3electricity accounts;

   19.2.4telephone accounts;

   19.2.5Foxtel accounts;

   19.2.6internet accounts;

   19.2.7home and contents insurance premiums

   20.That the husband pay to the wife by way of spouse maintenance the sum of $800 per week with the first payment to be made 14 days after the date of the making of this Order and thereafter by way of fortnightly instalments in advance.”

6. That the husband be restrained from doing any act or thing to alter the existing family health insurance policy with Grand United Corporate and ensure that the wife, the child and J remain members under that policy provided that after giving the wife at least 14 days prior written notice he may amend the family health insurance cover for the family provided to do so does not reduce the coverage of the family from the current level.

7. An order is made in terms of paragraph 23 of Exhibit B as set out hereunder:

   “23.That the husband be and is hereby restrained by this order from doing any act or thing to encumber or dispose of his interest in:

   23.1the [S] property;

   23.2the shared in the in the husband’s name in IBM Corp. HP, ADC, Telstra, AMP and IAG;

   23.3the funds held in the US bank account with Wells Fargo;

   without first obtaining the wife’s consent in writing.”

8. The Court noted Order 6 made on 12 December 2008 continues in force until further order.

9. That the husband pay within 7 days expenses in relation to the wife’s motor vehicle, being expenses for the maintenance, registration, insurance, service and repairs, road services association membership, E-tag expenses and tyres, within 7 days of presentation to him of an invoice in relation to those expenses, save that such payment may be made or compromised by agreement with the payee.

10. Orders are made in terms of paragraphs 17 and 18, as set out hereunder, of the Amended Application in a Case of the husband as amended by the Court:

    “17.That forthwith the husband do all acts and sign all documents necessary to close his Wells Fargo (California) bank account and repatriate the nett proceeds of the bank account to Australia whereby he shall equally divide the proceeds of the said account with the wife with such payments to be characterised by the Trial Judge.

    18.That forthwith the husband shall do all acts and sign all documents necessary to liquidate his share portfolio as disclosed in annexure “A” to his Financial Statement filed 20 April, 2009 and upon liquidation of the said share portfolio he shall divide the nett sale proceeds equally with the wife with such payment to be characterised by the Trial Judge.”

11. In relation to the husband’s Application at paragraph 21 of his Amended Application in a Case the wife is to make available to a person nominated by the husband on a date nominated by the husband at least 7 days after the nomination is made, the items described in a document headed “Personalty” which is Exhibit C and attached hereto which are marked with a P.  Otherwise that Application is stood over generally with liberty to restore on 7 days’ notice.

12. That otherwise the applications for interim parenting orders and interim financial orders by the wife and the husband are dismissed.

13. That the proceedings be allocated to the first date of the Less Adversarial Trial in accordance with its priority.

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

SYC 6862/08   EXHIBIT C

PERSONALTY

Annexure "A" to Amended Initiating Application

• Sporting and Hobby Equipment:

  ○All Sporting equipment, clothing, (including for example equipment and paraphernalia relating to tennis, golfing, roller blading, etc.)

  ○Hobby Equipment (including, for example, Bar-B-Que and utensils, out door recreational items, Christmas lights, etc.)

• All Electric and manual Tools (including for example, electric screw driver, drill, press, hand saws, tile cutters, tool boxes, drill bits, etc.)

• Camping & Four Wheel Drive equipment (including for example, inflatable air mattresses, camping chairs, esky's, trestle tables, etc.):

• Camera's, videos & video editing equipment and photographs

  ○      Accessories to video camera (including Sony TRV91E)
            ○      Cables, connectors, attachments, etc.

• Office/business equipment, effects, furniture, cabinets and items of that kind (including for example):

  ○      Glass Desk, Office Chair,
            ○      Tan Leather (reclining) Office Chair
            ○      Filing cabinets, shelves, etc.
            ○      Korean Medicine chest

  ○Scanner, shredder, laminator (and laminating sheets), DECT Phones/Mobile Handsets

  ○      Printer ink, photographic paper, etc.
            ○      Corporate giveaways, gifts, memorabilia, etc
            ○      Bluetooth Headset, web cameras, microphones, etc.
            ○      Empty boxes for office equipment, etc.

  PAll notes, files, folders, documents, not able to be retrieved on or before 15 December 2008.  Husband’s only.

• Personal effects (including clothing, bedroom furniture, etc., for example):

  ○      Clothing, shoes, hats and other apparel
            ○      Toiletries

  PWines and spirits collection, wine racks, etc.

  PStereo Hi Fi Music System, CD's/DVD's

  ○Artifacts, ornaments, glassware and souvenirs gifted to me (birthday and Christmas gifts).

  P      Bar Fridge (one of two from garage)
            P     My fathers Rocking chair
            P     [Tamberdun] Family Indian wooden Desk

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6862 of 2008

MR TAMBERDUN

Applicant

And

MS TAMBERDUN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, V. She was born in May 1999 and is just 10 years of age.  The father and mother are 54 and 51 years of age respectively.  They started to live together in 1986, were married in November 1989 and separated under one roof in May of 2006. The proceedings were started by the father, with an application in November of last year, filed in the Federal Magistrates Court.  The case came before that Court on 12 December, and some orders were made by agreement but noting that the day-only regime with the father was under protest from him. Otherwise the child was to live with the mother.

2. The parties were sent to counselling, an independent child lawyer was appointed, and some other orders were made in relation to exclusive occupation and other things.  And the matter was listed for an interim hearing before a Magistrate on 20 February this year. Perhaps in relation to the return of subpoenas, the matter again came before that Court on 12 February 2009 and the 20 February adjournment was converted to mention only. On 20 February a conciliation conference was appointed in relation to financial matters and the case was transferred to this Court.  It came before me in the judicial duty list on 27 April 2009, was not reached and was adjourned to today for hearing.

3. On any view there is too much evidence in the interim proceedings.  This is no fault of the parties, but we have a growing disease in Sydney whereby more paper than one would file for a final parenting case is sought to be relied on in relation to an interim parenting issue where no finding of fact can be made on a disputed issue of fact without independent material. If this trend continues, the duty list will cease to function.

4. A respondent is in an awkward position having to respond to material and not knowing whether he or she can safely ignore a plethora of material filed by an applicant. Ultimately something will have to happen from the Court’s point of view, whether that will be reducing parties to an executive summary or whatever. I have dealt with four or five matters this week, all with papers a foot thick. It is not practicable to hear such matters.

5. The child is represented. The competing claims are from the mother’s point of view to leave a day only arrangement in place for a period, let some therapeutic intervention get under way, then have a single expert everybody agrees on, do some work and report on the issue of overnight time before overnight time commences.  The father says we should go to overnight time now. He broadly agrees with the proposal put on behalf of the child, but says that in alternate weeks an overnight Friday and Saturday arrangement should extend over Sunday night to before school on Monday.

6. There are also issues about block time.  There are issues about restraints on the parties but many of them have now been agreed. I have three different documents which set out the parties’ proposals, each with different numbering systems. Again that is symptomatic of the whole case and makes it very hard to reconcile the proposals. The critical question for today is: when to start overnight time with the father.

7. The Independent Children’s Lawyer says now is the time, and the regime proposed is overnight every Wednesday, overnight every Friday, on the alternate weeks, taking that through to Sunday evening. It is proposed that that regime continue right through school holidays. The father agrees but thinks that that should be extended into Monday on the alternate weeks. The mother says there should be no overnight time.

8. The Independent Children’s Lawyer has spoken to the child, she is just 10 years of age. She would like to spend overnight time with her father. An attraction for her, I assume, is that her 18 year old brother also lives with the father. The child has not commented on the exact proposal that has been put to me, but Ms Power reports through Mr Sperling today that the child would be happy to stay overnight with the father.

9. On behalf of the Independent Children’s Lawyer it said that the concerns that a raised by the mother are dealt with by injunctions that are sought on behalf of the child, and indeed conceded on behalf of the father. Those concerns relate to the child being struck by the father, the father showering with the child, the father sleeping with the child. Despite the mother expressing those concerns, it is no part of her case that anything inappropriate has happened between the father and child.

10. As I understand it, the Independent Children’s Lawyer is concerned about the conduct of both parties to some extent. It is felt on behalf of the child that this arrangement now can safely be implemented at the same time as the parties undergo therapeutic intervention through Unifam and the family goes under the microscope to some extent with Dr R, who is the single expert.  The father agrees with that, he has never been happy with the day only arrangement, he says that albeit in different ways, with different emphases the parties were each very closely involved in both children’s lives. 

11. The father travelled with his work up to 10 days a month, but even so, he was been closely involved with the child since she was a baby.  He had two periods of unemployment over the years, from April 2001 to June 2002, and from October 2003 to July 2004. During those periods he engaged in renovations but also was available to spend time with the children. He and the children have mutual interests in sporting pursuits, including karate.  His active involvement, he says, continued after separation in May 2006. He continued to take the child to school for example, and collect her.

12. The parties underwent negotiations through an organisation called Intermediate, and had a long period, I think from late 2007 probably until about October 2008.  Their struggles were abandoned, and they hammered out an arrangement I think perhaps with some involvement from the children, in January 2008 which put in place a week about arrangement with changeovers on a Monday. The father says it seemed to go well, but by 29 February the mother told him that it was abandoned.  And since that time there has been day only arrangement.

13. That agreement was expressed to be a trial for one month. The father says that there is no basis for not implementing at least substantial and significant time in circumstances where it is the father’s application ultimately that there be equal shared time between the parents and the child.

14. Both parties are concerned in relation to impact of the other parent on the child. The father feels that there have been efforts in the mother’s household to interfere with his relationship with the child. He gives evidence about a series of events where the mother, from his point of view, sought to frustrate him having a normal or close or continuing relationship with the child. In that regard, he gives evidence about what he observed and J has told him about J’s problems with his mother. Problems that persisted while J studied for the Higher School Certificate late last year.

15. The mother’s case is that things were terrible late last year.  Many of the events she would sheet home to insensitive behaviour by the father, notwithstanding that she gives no sinister connotation to showering or sleeping arrangements. The mother’s concern is that when the inappropriateness of those things were brought to the father’s attention, until recently, he steadfastly insisted on his right to continue that sort of behaviour. The mother tells of her apprehensions in relation to the living arrangements for the child, while in the father’s household. That is an important issue because there is no more direct impact on a child than through the wellbeing and comfort level and sense of security and so on, of a parent. The mother expects that one day there will be overnight time. She acknowledges that the father has been closely involved with the children, including V. She acknowledges that during the marriage, the father took the children overseas without her. She makes no complaint about the consequences or outcome or events on those trips. Her complaints are generated over the period since the parties separated, including their separation under one roof from 2006.

16. The mother concedes that things improved after the father moved out. The mother and the carer retained for her mother both observe that V seems to be doing better than she was. The thrust of the mother’s case is let’s not destroy the progress that we’ve made; why leap in to something that is controversial when the parties have the benefit of a therapeutic program and the expert advice of Dr R. Why not ask Dr R to provide assistance in relation to the commencement of overnight time?

17. The legislation has a tree of logic in it which starts with equal shared parental responsibility. If that is to be ordered, the Court must consider with a view to ordering, equal time.  And if it does that and does not order it, it is to consider with a view to ordering, substantial and significant time. On any view, what the father is having now is not substantial and significant time. That would mean that the father can be involved in all aspects of a child’s life, the school week and holiday time and so on.

18. No one is pressing for equal shared time. The proposals of the ICL and the father would enable the father to be part of the school week, part of overnight rituals, part of weekends. That would be substantial and significant time.  As I said to the parties during submissions, it is no part of my responsibility to prepare the groundwork for a final hearing, to make Dr R’s work any easier, to do anything other than make orders calculated to be in the best interests of a child.

19. There are aspects of family law that represent a legal impossibility.  We are taught at law school that you cannot have specific performance of a personal contract. Parenting orders seek to control the behaviour to some extent, of three or more people (adults and children), behaviour that occurs in private and behaviour that is governed by motivation, over which the Court can have no control.

20. It is usual that a protective, careful approach is taken in the duty list. I cannot just sweep aside significant allegations where there is some evidentiary support for them. That is not the end of the matter. The legislation says that I am required to look at a number of things. There are primary and additional considerations. The primary considerations are the benefit of a child having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm, being subjected or exposed to abuse, neglect or family violence.

21. In most cases I see they represent the key issues. There is a tension between a proper relationship between a child and a parent, and the need to protect the child.  There is no suggestion there isn’t a substantial relationship between this child and the father. I have no doubt that their relationship would have more normalcy to it, and may well be enhanced by them spending more time together.

22. There are allegations of physical and psychological harm, and it is an agreed fact that the child has come to psychological harm. Both parties say that together they have not been able to insulate the child from the worst aspects of the breakdown of their relationship. There is evidence that the child has been affected by that. The carer of the maternal grandmother, Ms M, notes that the child has not had as many screaming episodes recently. She recently overheard a fight between the mother and the child about a school bag in a car but things are quieter. Of course Ms M’s not there to give us any reports about any problems in the father’s household, or about the father’s time with the child.

23. There is some independent evidence about the child. The principal of W Public School, Mr H, must have been the child’s classroom teacher. He says:

    She missed a couple of days school, was partially absent on six others, is clean and tidy, always dressed in uniform, usually compliant with homework. On a couple of occasions in Term 4 when she was a bit late with homework she complied by the next Monday. She worked well in 2008 and achieved pleasing results.

24. I gather J did very well in the HSC, so it may be that the parties would expect a similar performance from V. Mr H goes on:

    She’s got a tendency to play with one friend, but socialises well with other children at all times, she’s a quiet, self confident student who’s cooperative and polite at all times. 

25. Mr H has noticed no changes in her behaviour:

    Her emotional and psychological wellbeing has not been a cause for concern, although as stated above she’s a quiet and self contained student.  As the classroom teacher, I’ve had no dealings with [V’s] father.

26. That’s interesting, because he took her to school every day and collected her most days:

    [V’s] mother has always been accessible and interested in [V’s] progress and welfare at school.  She’s active as a class mother during the year.

27. What a delightful report about one’s child.  And to the extent that this is the equivalent of a treating doctor’s report, it suggests that the things that the parties observed in the child late last year weren’t acted out in the school. That could have a number of explanations. One might be that the child felt safe enough to express her frustration and anger at home. One might be that the damage is not as profound as it could be.

28. There is an allegation that the father struck the child, I think he substantially denies that. Minds differ about striking children, but if it’s a matter left to the Court, of course, then it wouldn’t happen. It is difficult to be measured about physical punishment. I think the community’s come to expect that if there’s any dispute between parents about it, it shouldn’t happen.

29. There are the issues of the father showering and sleeping with the child. It is not suggested that these things caused harm. However, one of the things that fathers forfeit in proper relationship with, at least, female children, is bathing or sleeping with a child.

30. It is possible for upset parents to lean on a child for support. Children can become parentified, take responsibility for their parents. There is evidence that at least J has been put in that position. In J’s affidavit and in correspondence with his mother there is evidence that he has become involved in his parents’ dispute and started taking responsibility for one parent. That is terribly unhealthy and would be worse for V.

31. Then the legislation sets out additional considerations.

32. As to any views expressed by the child, and factor such as the level of maturity and understanding, the Court thinks are relevant - we have a child who is just 10 years of age and who appears to be up with her cohort. 10 year old children don’t make many serious decisions in our society. Thus her views will not be determinative. If we thought the child was going to be in harm’s way, then even if it was her implacable wish for something to happen, that wish wouldn’t be given expression.

33. Here however we have a wish that has not been expressed through either of the parties. Ms Power, has acted as a child representative on many occasions and no doubt meets the requirements of persons who undertake that role. She will have raised this issue in a careful way. The child is supportive of overnight time and gave her permission for that to be reported to the parties and to the Court.

34. As to the nature of the relationship of the child with each of the parents – the relationships seem to be good enough. There is no suggestion at this stage of a fragile attachment to either party. We will find more about that later. As to the willingness of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent – the parents both say they do that. They have both acted in a way slightly inconsistent with that.  Again, hopefully we will find out the truth of that issue when the expert has a look at the parties.

35. As to the likely affect of changes in a child’s circumstances. On the one hand the change would be a positive one. A more rounded experience with the father, overnight time with a sibling. Absent any pathology those would appear to be beneficial changes. The down side is the impact of the mother’s fear that the behaviour of the father she complains of will continue under his roof.

36. There are no issues of practical difficulties or expense.

37. As to the capacities of the parents. Both parties raise that as an issue. It will be a matter flagged for Dr R. As I said a couple of times during the course of submissions, one would hold out great hope. The flip side of the problems of family law is that in 99 cases out of 100, at some point even the most upset and damaged parent picks up responsibility for their children and focuses again on the parenting role. Parenting cases settle more often than financial cases. That is likely to happen here, particularly because there is no substantial criticism of the parenting delivered for these two children, up until 2006.

38. As to the maturity, sex lifestyle, background of the child. V is a 10 year old girl. She has always been included in some extracurricular activities with the father and J. For a girl coming to puberty, there things with which a father may not be able to deal, with equal facility as a mother. The mother raises particularly the matter of ointment required for a torn perineum. The child has woken in the middle of the night because of pain or whatever, has a shower and has been assisted by the mother in relation to that ointment.

39. The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  The parents’ evidence is that they have dropped the ball in relation to that.  They attribute the blame differently, but it’s an agreed fact that their parenting of V has not been adequate.

1. There are allegations about family violence.  There was a family violence order, although I’m told that it is no longer in place. They are the relevant matters.

2. The background facts and the parties’ aspirations in January of 2008 suggest that there is no reason why it wouldn’t be comfortable and safe for the child to be with the father overnight. She went on overseas trips with the father in the past, over several years.

3. As against that, we have what the parties describe as completely unacceptable environment through 2008, but particularly late last year. They say that had an impact on the child. As a result, although there are positive signs, the mother is not comfortable that the family should move straight forward into an overnight regime.

4. There are the interventions the parties have agreed to. What need is there to involve Unifam or Dr R, if we can comfortably move to that threshold issue of overnight time, and the only question is whether it’s going to be two, three, four, five, six, seven nights a fortnight?

5. We don’t appoint child representatives for no reason.  It brings an objectivity to the advocacy on behalf of a child.  Here that advocacy leads to a submission that the child can cope with, and should be supported in her wish to return to having some overnight time with the father. I think it’s appropriate that we do that.  I propose that it be implemented in a staged way. .

6. The fact that orders are made isn’t the end of the matter, it doesn’t mean that the parties’ brains are suddenly turned off and their sensitivity about what’s happening to their daughter is cancelled out. 

7. If at any time they feel that the Court’s orders aren’t meeting their daughter’s best interests, then they must change them.  They have said that they want the best for their child; that they’re willing to be flexible about the arrangements.  We’re not talking about sharing the use of a motorbike or a car, V is fragile. Relationships between a child and a parent can be damaged for some time, and I’m sure neither of the parties wants that.

8. So what I’m saying in a long winded way is we put these orders in place, but if there is something that isn’t working for the child, then the parents need speak to each other about it, in a safe and polite way. They should speak to Ms Power about it. If that doesn’t solve some problem they can bring the matter back to Court and have the arrangements varied.

9. What I propose is until the end of the July school holidays there be one overnight each Friday into Saturday. After the July school holidays, that will be extended by adding Wednesday overnight and in the alternate week, the Friday night and Saturday night. 

10. In relation to the applications for financial orders and some injunctions, the parties are agreed that some payments will be made by the husband in specie.  It is agreed that there will be a cash payment by the husband to the wife on a periodic basis, and they are agreed about some other things, but there is a dispute about most of the detail of those orders. The parties agree to orders in terms of paragraph 17 and 18 of the husband's application. 

11. In relation to spousal maintenance, the husband wants to pay certain expenses, mortgage instalments, servicing the Westpac Rocket loan, all council rates and insurance premiums for the S property.  He wants to continue to pay health insurance premiums covering the family, and he wants to pay $1000 a calendar month for financial support to the wife. The wife seeks all of the mortgage payments, rates, electricity accounts, telephone accounts, Foxtel accounts, internet account and home and contents insurance premiums, and I understand that she also wants something like $1500 a week. 

12. Maintenance is a remedy between parties who have been married, whether the marriage is on foot or not, where one can establish that he or she is not adequately able to support themselves from their own resources, the other party can be called on to provide that support to a reasonable extent. 

13. The bare threshold issue is resolved here. There is no doubt that a level of subsidy is needed from the husband to the wife.  The issue is how much.  The wife says the husband's income is understated in his Financial Statement and relies on payments made into a bank account from his employers.  The husband says those payments are in part reimbursement of work expenses.  "My income hasn't gone up much for the last five years," and I think he would have it that his income is about $3600 a week.  That is not the figure in his Financial Statement. That sum comes from me making a change to the impact of American dollar value figure in relation to his main employer by reference to a change in the exchange rate since his Financial Statement was settled. The husband puts his income at $4000 a week.  He declares, expenses of $6500. So we need to find $2500 before he breaks even.  In that regard there is a question mark in relation to the husband's expenditure on credit cards.  Both parties are going to be in funds and will be able to pay out their current credit card debts.

14. Some of his expenditure is on things that should not affect his capacity to provide support. His office expenses, aspects of his living expenses, $1000 per week for legal fees, $300 a week for establishment costs fall into that category. Absent an order for interim costs or a costs order itself, parties should not be required to contribute to the legal fees incurred by each other. Establishment costs are not a recurrent expense in circumstances where the relocation occurred many months ago.  There is also the payment of $750 a week for superannuation that would give way to necessitous circumstances.  Finally, there is the fact that the husband, himself, proposes to make a payment of $250 a week despite there being no capacity identified in his Financial Statement to do it. Therefore, he is confident that that level of payment can be managed. 

15. The husband says that the wife could be earning some money. I was not successful in winning Mr Levy over in relation to this, but the wife has not had regular paid employment for many years.  There is reference to her running a photography business in the 1990s, and there is a reference to her making inquiries of his brother about running some small businesses and in relation to her facility with share trading.

16. For the purposes of today, the wife does not have paid employment. There are impediments to her capacity to take up paid employment.  V is still at Primary School and is not beyond the age when some supervision is needed outside school hours.  The mother has responsibilities in relation to her mother who does not enjoy the best of health, and who has been accommodated and supported to some extent by the parties over some time. She is 51 years of age and we do not live in times of full employment. 

17. It seems to me that for the purposes of today I could accept that there is not going to be paid employment in the short term.  There is nothing about the breakdown of a marriage that makes one better fitted for paid employment.  Quite the contrary. If the husband is right in relation to his wife’s presentation and affect then she will have difficulty holding down a job in any event. 

18. So I think, without being offensive about it, and not suggesting that the wife will be unable to rejoin the workforce at some appropriate time, her income earning capacity is nil.  I am obliged to ignore her receipt of income tested benefits. 

19. In terms of expenses, the wife says her expenses are necessary and her husband says they are not, and I have no way of making an assessment about that.  Notwithstanding with Mr Levy's problems with the process today, it is always the case that it is difficult in the absence of the capacity for testing evidence and for calling on records, to make a finding about these things. There are bare assertions and I have little idea about whether they are appropriate or not. Indeed I have little idea about whether they were the sort of things the parties spent money on during the marriage. There is the fact that the parties had some overseas holidays. There is a nice car in the family. The family home is a substantial property and the parties do not have significant borrowings associated with it. That is pretty well all we know in terms of lifestyle matters.

20. The estimates are just estimates.  Where figures are rounded out, they will not be exactly right.  The wife will not spend exactly $190 a week on food.  She might spend $200 one week and $177 the next.  These things are just the best efforts somebody makes to express on a weekly basis the cost over a period for certain types of things.

21. As to the expenses associated with the motor vehicle.  It seems to me there is a tidier way to deal with that by having the husband pay those expenses on invoice. That is a neat solution to the problem.  If the wife embarks on some expense that is ridiculous, the husband will be in a position to say, no.  They are not complicated things, motor vehicles, they need tyres or they do not, they need brakes or they do not.  He is already paying car related things -  Etag, for example.  He has probably always paid registration, insurance, and so on. Those categories of things are dealt with in the wife's Financial Statement and total $237. She apportions them as between herself and J - I am not sure whether that is because of J’s car. A modest motor vehicle has been acquired for J and perhaps the $20 is some part of the expense for that car. Therefore $217 per week of that claim relates to the wife. I will ignore that and have the husband pay those things directly.

22. Then we get into the demeaning business of he/she does not need certain amounts of money for fares or clothing.  The best I can do with this is to make an arbitrary decision in relation to those claims. This is not a satisfactory process and in a perfect world we would have a thorough accounting with access to all of the relevant documents. However, what we are doing today, that has taken all day, in times gone by would have had to have been done in half an hour in a motions list or a duty list. We are in danger of trying to make a silk purse out of a sow's ear in circumstances where I cannot verify income, I cannot verify expenses. One just does the best one can.

23. The reason why it is important to get the answer right is because you do not want a situation where the parties divert too much of their capital into their own support without making a conscious decision about it. On the other hand if it turns out that there has been something seriously amiss, like the application of $108,000 earlier this year by the wife, that the husband's income has been massively understated, that living expenses are buried in the business expenses that he gets reimbursed from his employer, for example, then that can be corrected on a final hearing.  I grant you it is often is not, but there is capacity either through direct vehicle of adding back amounts, or through the indirect vehicle of apportioning credit for contributions made after separation.

24. There is some scope to fix it significant errors made in this process. What I propose to order is that there be a weekly payment of  those direct expenses and $800 a week.. In relation to child support, there is a narrow window for Courts to influence child support and there is a tiny little gap left in that narrow window for interim proceedings. I do not propose to seek out that gap today.  Mr Levy is right, there is no direct access by way of jurisdiction. There is a loophole in section 116 of the Assessment Act if the carer and the payer are parties to proceedings of a similar nature and it would be in their interests to have a child support departure issue dealt with at the same time.  The fact that they have not gone through the hurdles of an internal review nor to the Social Securities Appeals Tribunal. I can do it, but I do not have the wherewithal to do it and I do not need to do it. 

25. I assume that the husband’s liability has been fixed at the capped rate. That is an artificial figure at which the formula ceases to apply. That is because children of certain families have benefited from trips to the Maldives and Canadian ski trips, things that are not experienced by children for whom the formula is designed. That is why Courts can become involved in support issues for higher income families.

26. It is quite proper for the wife to make an application. I accept that it is possible that the parties always expected that the children would have access to activities and expenditure far in excess of the formula outcome. However, I am not going to get into that argument today.

27. The processes through the agency allow for the detail of income and expenditure to be examined in an administrative regime. That is what the legislature favours for most cases. 

28. I am going to make the orders for outgoings that the wife sought.  I am going to add the health insurance premium. I will require the husband to pay motor vehicle expenses on invoice.  The wife has a plumbing bill.  She is going to receive $100,000.  She can address that with part of that money.  The husband has a tax bill coming up and wants relief from an injunction granted on 12 December 2008. He too has $100,000 coming in. I think he will be able to manage that.

29. There is an outstanding issue about access to the former matrimonial home for the husband to collect some goods. The wife’s agent could attend and make sure that the husband does not remove the silverware or whatever the concern is.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  17 July 2009