TELFORD & TELFORD

[2012] FamCA 995

FAMILY COURT OF AUSTRALIA

TELFORD & TELFORD [2012] FamCA 995

FAMILY LAW – CHILDREN – Interim parenting orders pending final determination
FAMILY LAW – SPOUSAL MAINTENANCE – Mother’s application dismissed – finding that the mother has the capacity to obtain employment and support herself
FAMILY LAW – PROPERTY – Sale of property in circumstances whereby the loan repayments cannot be met

Family Law Act 1975 (Cth)

APPLICANT: Mr Telford

RESPONDENT: Ms Telford

FILE NUMBER: MLC 9259 of 2011

DATE DELIVERED: 29 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Alphastream Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

UNTIL FURTHER ORDER IT IS ORDERED BY CONSENT THAT

1. As and from 1 December 2012 paragraph 10 of the orders made in the Federal Magistrates Court of Australia on 2 November 2011 with respect to the time the father spends with the child be and are hereby discharged.

2. The father and the mother have equal shared parental responsibility for the child R born … September 2008.

3. The child live with the mother.

4. The father spend time and communicate with the child as follows:

   (a)from 10.00am Saturday to 5.00pm Sunday each alternate weekend commencing Saturday 1 December 2012; 

   (b)from 10.00am to 5.00pm on Father’s Day if it falls on a day when the child is living with the mother;

   (c)the father’s time with the child be suspended from 10.00am to 5.00pm on Mother’s Day if it falls on a day when the child is otherwise scheduled to spend time with the father;

   (d)from 4.00pm to 7.00pm on the child’s birthday if it falls on a day when the child is living with the mother;

   (e)the father’s time with the child be suspended from 4.00pm to 7.00pm on the child’s birthday if the child is otherwise scheduled to spend time with the father;

5. The father be and is hereby restrained from:

   (a)smoking or consuming tobacco products during the time he spends with the child pursuant to these orders; and

   (b)consuming alcohol for a period of 12 hours prior to and during the time he spends with the child pursuant to these orders

6. The child be permitted to take any toys he wishes between his parents households.

7. Each parent shall provide appropriate clothing for the child whilst he is in their respective care.

8. The parties be at liberty to communicate by way of text message or email in relation to matters concerning the child.

9. The parties keep a communication journal to inform the other parent of the child’s needs and the journal to travel with the child between the parents.

10. Each party:

    (a)keep the other informed of any medical issues relating to the child including medical appointments;

    (b)       be at liberty to attend such appointments; and

    (c)       ensure that the child is administered any medication that is prescribed.

11. Each party:

    (a)keep the other informed of childcare issues relating to the child including any appointments; and

    (b)       be at liberty to attend such appointments.

12. The parties be at liberty to communicate by way of text message or email in relation to matters concerning the child.

13. Each party, their servants and agents be and are hereby restrained from:

    (a)denigrating the other (or family members of the other party) to or in the presence of the child;

    (b)       physically disciplining the child;

    (c)discussing parenting disputes and/or issues with or in the presence of the child;

    (d)       passing messages through the child;

    (e)unreasonably questioning the child about the time he spends with the other parent; and

    (f)involving the child in any form of dispute between the parties or otherwise.

14. The parties be restrained from discussing the Court proceedings with or in the presence of the child or permitting any other person to do so.

15. As soon as practicable the parties attend upon and participate in an accredited pre-school parenting course and upon completion provide the other party with proof of completion.

UNTIL FURTHER ORDER IT IS ORDERED BY THE COURT THAT

1. Changeover for the purposes of the time the father spends with the child be at B Contact Centre in Suburb A (or such other contact centre as may be agreed by the parties) with the father and mother to deliver the child to and collect the child from the contact centre when the other parent is scheduled to spend time with the child.

2. In the event that B Contact Centre is not open for the purposes of changeover then the father collect the child from the mother at the McDonalds’s Restaurant at Suburb C at the commencement of the father’s time and the mother collect the child from the father at the McDonalds’s Restaurant at Suburb D at the conclusion of that time.

3. Until further order the father Mr Telford and the mother Ms Telford, by themselves, their servants or agents, be and are hereby restrained from removing the child  R born … September 2008 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

4. The Court forward a copy of this order to the Australian Federal Police.

5. Both parties forthwith do all things and sign all documents necessary to cause the property at L Street, Suburb C in the State of Victoria to be forthwith placed on the market for sale upon such terms and conditions and at a reserve price to be agreed upon and in default of agreement upon such terms and conditions and at a reserve price to be nominated by the President of the Real Estate Institute of Victoria, or his or her nominee.

6. Upon completion of the sale and pending further order the proceeds of sale be applied as follows:

   (a)       Firstly, to pay all selling costs, commissions and agent’s fees;

   (b)Secondly, to discharge the IMB mortgages and any other encumbrance affecting  the said property;

   (c)Thirdly, to pay the balance, if any, of the IMB line of credit;

   (d)Fourthly, the sum of $30,000 or the remaining balance of that sum if not otherwise set aside, be held in an interest bearing account by the husband’s solicitors in trust for the parties for the payment of any CGT liability; and

   (e)Finally, the balance to be held in an interest bearing account by the husband’s solicitors in trust for the parties.  

7. Liberty be reserved to the mother to apply to vary or set aside paragraph 20 hereof by application to the Court and such application to be supported by an affidavit setting her capacity to make the necessary loan repayments.

8. In the event that either party fails to or refuses to sign any document to give effect to paragraph 20 hereof within 7 days of a request in writing to do so a Registrar of the Melbourne Registry of the Family Court of Australia be and is hereby appointed to sign such document on behalf of that party pursuant to s.106A of the Family Law Act 1975. 

9. All extant interim applications be otherwise dismissed.

10. All final applications be listed for Mention before me at 9.00am on 30 January 2013.           

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telford & Telford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9259 of 2011

Mr Telford

Applicant

And

Ms Telford

Respondent

REASONS FOR JUDGMENT 

1. The father and mother in this case were married in December 2001. They separated on 19 June 2011. R, (“the child”) who is now 4 years of age is the only child of the marriage. He lives with the mother and spends time with the father.

2. The father is 37 years of age and is employed as a senior executive for a multi national company. He deposes that he earns approximately $135,000 per annum and last financial year earned bonuses of approximately $9,000.

3. The mother is 31 years of age. She is a qualified professional who until 13 January 2012 was working as a consultant for Company E earning in excess of $100,000. She describes herself as “skilled in [her field]”.

4. This matter was listed before me in the Judicial Duty List. Proceedings were commenced by the father in the Federal Magistrates Court of Australia at Melbourne on 30 October 2011 and the matter was transferred to this Court on 21 August 2012. There have been at least five hearings before this one. The matter was listed for final hearing in the Federal Magistrates Court in July of this year but was not ready to proceed on that date. It was noted at the time of transfer that “… the matter involves complex financial issues and requires considerable case management before it is ready for hearing” and it was noted that both the applicant and the respondent appeared in person. Whilst the financial issues themselves are not in my view complex, the manner in which the parties have conducted this litigation is somewhat chaotic and I agree that the matter may benefit from some case management.     

5. The applications before me today are as follows:

   Filed by the mother:

   ·Her Application in a Case filed in the Federal Magistrates Court on 17 July 2012 in which she seeks spousal maintenance in the sum of $1845 per week payable until the mother completes her studies on 31 January 2017 and backdated to 13 January 2012. She also sought orders for the transfer to her name of the property at L Street, Suburb C, that the father pay the mortgage on that property until 31 January 2017, that the father be made to disclose all financial assets, a 70/30 split of all other assets in the mother’s favour and that the father reimburse the mother for all of her legal costs should it be found that he has falsified his statement of Financial Circumstances and that the father pay her costs of this application. 

   ·Her Application in a Case filed 7 August 2012 in which she seeks both parenting and financial orders including an order that the father be restrained from leaving the Commonwealth of Australia until the completion of the proceedings and final settlement has taken place, that the father disclose details of his assets as per the Court order dated 12 July 2012, that the father provide details of his planned trips overseas and that if he decides to leave Australia permanently that he give to the mother the full amount required to support the child until he turns 18, that he provide details of where the superannuation he is taking out is being transferred to and that he be restrained from withdrawing further funds from his superannuation; and that should he leave Australia permanently that both the Suburb F and Suburb C properties be transferred to her for the benefit of the mother and the child, that his medical injury or condition be assessed and that pending that assessment the father’s time with the child be supervised and that contact changeover be changed from B Contact Centre to G Contact Centre at Suburb H.  

   ·Finally, her Response to the father’s Application in a Case filed 12 October 2012 opposing the father’s application that the property at Suburb C be sold and seeking orders for the transfer of that property to her, that she have the sole right to occupy the property and that the father pay all mortgage instalments, rates and taxes and like apportionable outgoings and orders requiring the father to facilitate the sale of the Suburb F property.

   ·The mother has filed affidavits in support of each of her applications and her response and I was referred to the mother’s Statement of Financial Circumstances filed 6 December 2011

   By the father:

   ·His Response to the mother’s Application in a Case filed 7 August 2012 in which he opposes the orders sought by the mother;

   ·His Application in a Case filed 10 September 2012 in which he seeks orders for the sale of Suburb C and that provision be made for CGT and that the net proceeds of sale be otherwise invested in an interest bearing account pending the final hearing;

   ·His Application in a Case filed 8 October 2012 in which he seeks detailed parenting orders;

   ·His Response to an Application in a Case in which he seeks a 50/50 superannuation split, repeats his application for the sale of Suburb C and for parenting orders and other orders as previously submitted.

   ·His applications and his Response were similarly in each case supported by affidavits and I was referred to his Statement of Financial Circumstances filed 30 January 2012.

6. The applications were unnecessarily repetitious and made no distinction between what are clearly matters for a final hearing and interim matters. I have not looked at the previous applications and affidavits that have been filed but I surmise that given the size of the file that the previous material is also likely to have been repetitious and unnecessarily lengthy.  

7. As would appear to be the practice in this case the parties each handed up a minute of the orders that they proposed with respect to parenting issues. Each was said to be a minute of proposed final orders. It has been somewhat difficult for me to distinguish between the minutes of orders the parties have handed up at previous hearings and the orders that were actually made. I also had some difficulty identifying the issues that were actually in dispute and the issues that they sought to have determined by way of interim hearing in light of the interim orders that have previously been made.

8. It is clear that on 2 November 2011 Riethmueller FM made detailed interim parenting orders by consent which included orders that the child live with the mother and spend time with the father from 10.00am until 5.00pm each alternate Sunday and each Wednesday from 4.00pm until 6.00pm. On the 12 December 2011 orders were made placing the child on the Airport Watch List. Both parties were of the view that an order had been made that pending a final hearing they have equal shared parental responsibility. I cannot see an order which provides for interim equal shared parental responsibility however although the mother initially said that she wanted to vary that order, that is assuming that one had been made, to provide that she have sole parental responsibility, she ultimately conceded that the parties should at least in the interim have equal shared parental responsibility and that I should make an order in those terms.

9. Significantly the parties now agree that the child should spend time with the father from 10.00 am Saturday until 5.00pm on Sunday each alternate weekend which will commence on 1 December 2012. The order for mid week time is to be discharged after the commencement of overnight time. There is also some agreement in relation to special occasions such as Father’s Day and Mother’s Day and I propose to make orders by consent in relation to those matters.

10. The mother in her minute of orders sought the lifting of the watch list allowing her to travel with the child but that the order remain in force so as to prevent the father taking the child out of the Commonwealth of Australia. She did not have any immediate plans to travel and ultimately agreed that the watch list order should remain in force pending the final hearing.

11. I note that the respective minutes of proposed orders also make provision for what should occur when the child commences school however I do not need to make a decision about those matters on an interim basis as the child is not expected to start school until 2014.

12. The outstanding issue with respect to the child which I am asked to determine is where, pending a final hearing, changeover for the purposes of the father spending time with the child should occur. Until mid 2012 changeover was taking place at McDonalds however when the matter was listed for hearing before Riethmueller FM the mother submitted that changeover should be at a contact centre and that she proposed that it be at Suburb H. The father was agreeable to changeover taking place at a contact centre however he proposed that it take place at B Contact Centre in Suburb A. The parties agreed that an order had been made by consent by Riethmueller FM that for the purposes of the father’s time with the child changeover occur at B Contact Centre in Suburb A.

13. It is the father’s case that the changeover should continue to take place at B Contact Centre. The father lives in Suburb F and says that Suburb A is approximately half way. He says that changeover at B Contact Centre has been going well.

14. The mother proposes that changeover take place at G Contact Centre at Suburb H. She concedes that the changeover at B Contact Centre has been going well but says that it involves a 140 km round trip for her whereas the father has only a 55 km round trip. She says that Suburb H would be a 45 km round trip for her and a 130 km round trip for the father. She says that if it were to be at Suburb H she would be able to “..fulfil our [son’s] morning routine as opposed to rushing on weekdays to get to the contact centre at [B Contact Centre].”

15. Obviously enough, the child is travelling the whole distance whether the changeover takes place at Suburb A or Suburb H. There is no evidence that anything has changed since the mother agreed to the changeover taking place at B Contact Centre on 2 July 2012 save that the orders I am being asked to make today will mean that from 1 December 2012 there will be no midweek time with the child. In so far as the mother suggests that the changeover disrupts the child’s weekday morning routine that will no longer be an issue.  

16. On that basis I do not propose in the interim to vary the arrangements for changeover.

17. Although it would appear that on 2 July 2012 the parties ultimately agreed that changeover should occur at B Contact Centre there does not appear to be a formal order to that effect. Whether or not Riethmueller FM made an order or not these matters were canvassed at the hearing before him on 2 July 2012 and more importantly the mother ultimately agreed to changeover taking place at B Contact Centre. In the absence of evidence which would suggest that circumstances have changed to the extent that the child’s welfare would require further interim orders to be made, the question of where changeover should ultimately occur is a matter that can be dealt with at the final hearing. Circumstances could and are in fact likely to change pending that final hearing. The property in which the father is living is being sold and he may decide to live in a totally different part of Melbourne, he might even decide to move somewhere that is closer to the child. I also note that the mother has raised the possibility of moving interstate. In all of the circumstances I do not propose to vary the arrangements the parties agreed to in July. I do however propose to make further parenting orders by consent where there is agreement that I should do so.

18. The father also sought in his minute of proposed orders that in the event that there were ongoing dispute in relation to these orders, that the parties engage in round table mediation to facilitate resolution of any conflict and ensure the continuing effective operation of these orders. The mother opposed this order on the basis that she did not want to be in the same room as the father. Whilst I certainly would suggest and encourage the parties to do all that they can to avoid further proceedings I do not see at this stage any purpose or benefit in requiring the mother to attend mediation that she says she does not want to attend.

19. The father also sought time with the child by skype. Neither party made any submissions with respect to this issue and in those circumstances I do not propose to make the order sought by the father. Hopefully the parties can reach agreement in relation to this issue and if they do not do so it can be addressed when the matter is dealt with on a final basis.

1. The other issues I am required to determine are:

   ·    Whether the Suburb C property in which the mother resides should be sold and what should happen to the proceeds in the event of a sale?; and

   ·    Whether the father should be required to pay spousal maintenance, both periodic spousal maintenance and mortgage payments and if so, how much?

2. Those two issues are inextricably linked in so far as the mother says that the father should pay spousal maintenance and all mortgage payments and that if I do not make an order that he pays the mortgage or at least the periodic spousal maintenance she will not be in a position to support herself and to meet the mortgage payments. The mother’s case is that the father should pay the mortgage payments and the periodic spousal maintenance she seeks in addition to the child support he is currently assessed to pay.

3. Section 72 of the Family Law Act 1975 provides that a party to a marriage is liable to support the other party to the extent that that party is reasonably able to do so if, and only if, the other party is unable to support himself or herself adequately by reason of having the care and control of a child of the marriage who has not attained the age of 18 years, by reason of age, physical or mental incapacity for appropriate gainful employment or any other adequate reason, having regard to any relevant matter referred to in s 75(2). The mother does not suggest in any real sense that she cannot support herself because she has responsibility for the child’s care nor would the evidence support such a submission. Arguably the mother’s proposed studies would be as time consuming if not more so than her past employment. The significant factor in this case is the mother’s income earning capacity.

4. The mother concedes that she is skilled in her field. She says that she is “..yet to find suitable work despite looking for a  job” however there is no evidence of any attempts to obtain employment and it is clear from her affidavit that even had she been looking for or obtained employment that she was only looking for work until she was accepted at university to study.

5. The mother says that the child is in childcare 5 days a week and that she is studying for a postgraduate qualification at university and preparing for a course admissions test. The mother’s assertion that the trauma of domestic violence she has suffered during the marriage and the father’s use of legal proceedings to control her since separation have impacted upon her capacity to work is not consistent with her current studies or her plans to study further. 

6. It is clear from the mother’s evidence that although she has a tertiary qualification and the capacity to earn a substantial income she has always dreamed of studying a particular course and has chosen to pursue her dream rather than obtain employment and that she believes the father has an obligation to support her so that she can realise her dream. It is conceivable that if the mother had lost her job and been looking for employment that the father, subject to his capacity to do so might have been required to contribute to the mother’s support until she could obtain suitable employment. But that is not what has happened in this case. I am not satisfied that the mother cannot adequately support herself. She has chosen not to seek employment in order to pursue further study and whilst her desire to become qualified in that field may be commendable it does not follow, that when she already has a significant demonstrated income earning capacity and she chooses to study rather than seek employment, the father should be required to support her whilst she obtains further and alternative qualifications. 

7. The father questioned the expenses claimed by the mother however as I am not satisfied on the evidence before me that she cannot adequately support herself as she appears to have been doing until January of this year it is not necessary for me to address these issues in any detail other than to say that many of the expenses claimed by the mother would appear not to be strictly necessary for her support. Similarly whilst there seems to be a significant question about the father’s capacity to make the payments sought by the mother, as the mother has not satisfied me that she cannot support herself adequately, I do not need to address the issue of the father’s capacity to pay the spousal maintenance sought by the mother. 

8. The father deposes that neither he nor the mother can afford to meet the mortgage repayments to IMB secured over the Suburb C property. The property is in the joint names of the parties and has been used as security for a loan which has a current balance of approximately $540,279 as at 12 October 2012  and which was used for the purchase and construction of Suburb C, a loan of approximately $627,052 as at 15 October 2012 that was used for the purchase of the Suburb F property and a line of credit which has a current balance of approximately $41,283 which was used for renovations on the Suburb F property and the purchase and construction of Suburb C. The loans are cross collateralised against each other.

9. Prior to separation the parties were living in the Suburb F property. Following separation the father stayed with friends and the mother and the child remained living at Suburb F. In late September or early October 2011 the mother moved with the child to Suburb C. By that time the Suburb C loan was already in arrears and after discussions with the mortgagee the father and mother each agreed to pay half of the arrears, that the mother would otherwise be responsible for the Suburb C loan repayments and that the father would make the Suburb F loan repayments. The father deposes that in November and December 2011 and January 2012 he paid his share of the Suburb C arrears. He further deposes that he continued to make the Suburb F loan repayments save and except that he missed the April payment, paid $2000 in June and at the time of swearing his affidavit in support of his application had not made either the July or August payments. The father also deposed that until May 2012 he continued to make the monthly repayments on the line of credit. Orders were made by consent on 2 July 2012 for the sale of the Suburb F property. The father has not made any further mortgage payments since that order was made.  

10. The father sets out in some detail the background in relation to the proposed sale of Suburb C. I do not propose to set out all of that evidence suffice to say that it is clear from that evidence and not disputed by the mother that she initially proposed the sale of Suburb C on the basis that she could not as a result of being made redundant afford to make the Suburb C loan repayments. She advised both the mortgagee and the father accordingly in early 2012. It was only at the hearing on 2 July 2012 that the mother made it clear that she was opposing the sale of Suburb C. The mother agrees that she has not made any loan repayments for Suburb C since November 2011. That is not withstanding the order that was made by consent on 2 July 2012 which provided that pending the completion of sale the mother have the sole right to occupy Suburb C and that she be responsible for instalments of the mortgage and rates and taxes and like apportionable outgoings with respect to the property. 

11. The father says that there is in this case a very limited asset pool which is being further eroded by the mother’s failure to make the Suburb C loan repayments. Although neither party has filed an updated statement of financial circumstances it is clear that the only assets of any substance are the two properties which have limited equity. The father deposes that he has superannuation entitlements of $63,305 and the mother deposes that her superannuation entitlements are $25,768.

12. Pursuant to the orders made 2 July 2012 the proceeds of sale of Suburb F are to be applied to the repayment of the mortgages and the line of credit,  the sum of $30,000 is to be set aside for the payment of CGT and that the balance, if any is to be placed in an interest bearing account. I was not told whether IMB would require all of the net proceeds to be applied to the reduction of their loans and the line of credit but obviously enough if that is the case there will be no funds to set aside for the payment of CGT or to be invested pending the resolution of this matter. The mother submitted that the father was delaying the sale of Suburb F. This is denied by the father but whether he is or is not the mother concedes that even if the proceeds of sale of Suburb F are applied to the reduction of the Suburb C loan she will not be able to make the repayments unless, at the very least, she receives the spousal maintenance or some part of the amount she seeks from the father.

13. The mother has not established that she cannot support herself adequately and that it is necessary for the father to support her. There is no basis for an order for spousal maintenance either by way of periodic payments or for that matter the payment of the mortgage. It is the mother’s own case that if she does not receive maintenance from the father she cannot afford to meet the Suburb C loan repayments and inevitably in those circumstances that if the property is not sold any equity the parties have will be further eroded. In all of the circumstances I am satisfied that the property should be sold.

14. As I have already alluded to there is a possibility that even if Suburb F is sold first there will be no money left after payment of the outstanding mortgages to pay either the line of credit or to set aside the funds to meet the CGT liability. In that case provision needs to be made for the payment of the balance of any mortgages, the line of credit and the CGT out of the proceeds of sale of Suburb C. 

15. The level of conflict between these parties is significant and there have already been a number of interim hearings. The mother alleges that the father has not done what he is required to do to give effect to the orders in relation to the sale of the Suburb F property. This is denied by the father. In order to avoid further dispute and the necessity for further interim hearings or contravention proceedings I propose to make an order pursuant to s106A  authorising the Registrar of this Court to sign any documents necessary to give effect to the sale of Suburb C in the event that either of the parties neglects or refuses to do so.

16. Although I propose to order the sale of the property I am also mindful of the fact that I have found that the mother has the capacity to obtain employment and support herself, and I propose to reserve liberty to the mother to apply to set aside the order for sale if prior to the sale she is able to demonstrate that she has obtained employment and has the capacity to make the loan repayments and pay any arrears that may be required by the mortgagee or has other means of making those payments.

17. Both the father and the mother forwarded further documents upon which they sought to rely to my chambers. Those documents are not in evidence and I have not looked at them. I did during the case ask both the father and the mother to direct me to any evidence in support of their respective submissions and indicated that the mother in particular could flag particular documents however I did not intend that the parties should forward further documents to my chambers nor would it be appropriate to do so after the conclusion of a case and pending my decision.

18. Various procedural orders have been made during the course of these proceedings. It was impossible in the time available to me to determine which, or if any of those orders have or have not been complied with. In these circumstances I propose to list this matter for Mention before me for the purposes of identifying the outstanding issues and what is required to prepare this matter for trial. I propose to otherwise dismiss all extant interim applications and I remind the parties that any further interim applications have the potential to delay a final hearing of this matter. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 November 2012.

Associate: 

Date:  29 November 2012