TRITTON & DUCATTI

[2018] FamCA 674

FAMILY COURT OF AUSTRALIA

TRITTON & DUCATTI [2018] FamCA 674

FAMILY LAW – CHILDREN – Application to vary interim parenting orders made by consent – Where changeover orders further altered by consent – Best interests – Where the father did not address the s 60CC factors in his application or submissions – Where the matter is currently listed for final hearing – Where the balance of the application was adjourned to final hearing. 

FAMILY LAW – PROPERTY – Application to vary interim property order made by consent – Where the father seeks an order for exclusive occupation of a property – Where the father did not produce sufficient evidence of changed circumstances – Court finds the father did not discharge his onus of establishing that enforcement of the consent orders would be unjust.

Family Law Rules 2004 r. 13.04(1)(a)

Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170
Banks & Banks (2015) FLC 93-637
Cutler v Wandsworth Stadium Limited (1945) 1 All ER 103

APPLICANT: Mr Tritton

RESPONDENT: Ms Ducatti

FILE NUMBER: SYC 6271 of 2016

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 17 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

Orders

THE COURT ORDERS THAT:

1. Orders 1 and 3 contained in the father’s Application in a Case filed on 7 August 2018 be dismissed.

2. The orders made on 22 November 2016 and varied on 5 April 2018 shall be further varied by addition of the following as order 9A:

   9A. For the purposes of orders 8 and 9 herein, the person collecting the children shall stand outside the physical boundary of the property where the children have been staying and wait until such time as the children approach them.

3. The parties be granted liberty to apply after receiving the report of Dr B, upon 48 hours’ written notice to the other party and to the Court.

4. Subject to a party exercising the liberty granted in order 5 herein, proposed order 2.2 contained in the father’s Application in a Case filed on 7 August 2018 is adjourned for determination at the final hearing commencing on 15 November 2018.

THE COURT NOTES THAT:

A.The parties agree to attend a mediation in this matter.  In that respect, the parties agree that:

a.         Within 7 days, the mother will provide the father with the names of three potential suitably qualified mediators; and

b.         Within a further 7 days, the father will select from that list of proposed mediators a person who the parties shall appoint as a mediator in respect to the issues in dispute between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6271 of 2016

Mr Tritton

Applicant

And

Ms Ducatti

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Numerous applications have been made in this matter and the matter has given a priority listing for a seven-day final hearing in November of this year.  Despite that background, yet another application has been made to the Court seeking “urgent orders”.

2. The orders sought by the father are set out in Part D of his Application in a Case filed on 7 August 2018, as follows:

   1. That Order 13 of the orders made 5 April 2017 be deleted and amended to read:

   1.1 The [father] is to remain in the Suburb D property until the final settlement.

   2. That Order 9 of the orders made on the 5 April 2015 be deleted and amended to read:

   2.1 The father or his nominee to drop the children, at the conclusion of the father’s time, to the mother’s residence (where the return is not to child care) and the father or his nominee will walk the children to the front door.

   2.2 The children are to attend [Suburb C] [Children’s Centre] on Wednesday, Thursday and Friday.

   3. The [mother] pay the [father’s] costs of an incidental to this application in a case.

3. Neither of the parties are legally represented in respect of this application and accordingly, I do not consider making proposed order 3.

4. The father, in support of his application, relies on an Affidavit which was filed on 17 August 2018.  I propose to deal with the following issues in these proceedings:

   a)Firstly, whether there should be any variation of the orders which were made by consent of the parties on 5 April 2017;

   b)Secondly, whether there should be any modification of the orders providing for the pick-up and drop-off arrangements for the children; and

   c)Thirdly, whether there should be any order in respect to the days upon which the children attend daycare.

5. Dealing firstly with the issue of whether there should be a variation of the orders relating to the occupation of the Suburb D property, I note that order 13 of the orders of 5 April 2017 relevantly provides:

   13. That upon the [father] taking up occupation of the [Suburb D] property, pending further order the [father] pay as and when they fall due and indemnify and keep indemnified the [mother] in respect of any and all liability for the following in respect of the [Suburb D] property and in the event of a default by the [father] that he forthwith vacate said property:

   13.1 All interest and principle loan repayments secured by way of mortgage over the [Suburb D] property;

   13.2 Rates;

   13.3 Water rates;

   13.4 House insurance;

   13.5 Strata and body corporate levies and sinking fund;

   13.6 All utilities and outgoings.

6. The relevant law to apply in this matter is as set out by the High Court in Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178, where the majority, said:

   … But in our opinion, a court undoubtedly has such a power [to amend or vary an interlocutory order or undertaking accepted in respect to an interlocutory order].  Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking.  A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust. Of course, the changed circumstances must be established by evidence. [Emphasis added, references omitted].

7. In that decision, the High Court applied Cutler v Wandsworth Stadium Limited (1945) 1 All ER 103 in confirming that the onus rests on the person seeking to vary the consent or interim order to establish that those changed circumstances.

8. The father, as I have said, relies on his Affidavit filed on 17 August 2018 as setting out the changed circumstances which he contends justify a variation of the orders to which I have referred.  In that respect, most relevantly, paragraph 7 of that Affidavit states:

   Since the signing of the April 2017 orders, my circumstances have changed.  My income has decreased due to the stress and time involved in these court proceedings.

9. The Affidavit does not state what the father’s current income is.

10. There being no objection from the mother, the father described from the bar table those circumstances that have resulted in his reduced income.  Those changed circumstances substantially relate to the stress of this litigation, the number of times the parties have been before the Court, the burden of preparing documents for the Court (including in respect to his own representation), matters relating to adjusting to the new family environment and stress associated with adjusting his working arrangements to care for the children in accordance with the orders that have been made.  The father also referred to stress arising from changeover, including stress associated, the father contends, with the fact that there have been several interim Apprehended Violence Orders issued in respect to matters in dispute between the parties.

11. These matters, the father contends, have created what he described as “considerable stress and tension”.  This, he states, has impacted upon his earning capacity. 

12. I accept that litigation has its own stress and the cost of litigation is not simply a financial cost.  Litigation has a significant emotional cost.  Nevertheless, the father carries the onus of establishing that there are changed circumstances in respect to this matter, and in the absence of disclosing his income, he is unable to do so.

13. In that respect, I note that Rule 13.04(1)(a) of the Family Law Rules (“the Rules”) provides that:

    (1) A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:

    (a) The party’s earnings, including income that is paid or assigned to another party, person or legal entity …

14. Further, clause 6(i) of Part 1 of Schedule 1 of the Rules provides that:

    (6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:

    …

    (i) The duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

15. The fact that the father’s income has not been disclosed in respect to this application, in circumstances where he contends that his circumstances have changed, results in a situation where the Court is unable to be satisfied that there has been a sufficient change that would justify a variation of the orders that the father has previously agreed to.  In those circumstances, I find that the father has failed to discharge the onus resting upon him of establishing that the enforcement of the consent orders made on 5 April 2017 would now be unjust.

16. Dealing with the second issue, that is, the issue of changeover, the parties are to be commended for at least agreeing that the orders in respect of changeover be varied in order to clarify that the person collecting the children shall stand outside the physical boundary of the property where the children are staying at the point of collection.  Having regard to that agreement, I intend to make that order.

17. The third issue that arose in these proceedings concerns the children’s attendance at daycare, and in that respect, I refer to order 2.2 of the orders sought by the father.  In those proposed orders, the father proposes that the children attend daycare on Wednesday, Thursday and Friday each week.  In that respect, the fundamental issue is whether the children only attend daycare on Wednesdays on a fortnightly, rather than a weekly, basis.

18. The father contends that amending the orders to specifically provide for the children to attend daycare on those three days would enable him to collect the children from daycare, which is a neutral place, at the commencement of their time with him.  The father says that this would better allow the parties to avoid issues that have arisen during the course of previous changeovers.

19. In dealing with that issue, I have endeavoured to address the tensions that have arisen at changeover by making the order that I have referred to above.  That order confirms that the person collecting the children should stand outside the boundary of the property where the children have been staying.

20. Otherwise, the information set out in the father’s Affidavit is not sufficient to satisfy me, in accordance with my obligations to have regard to the best interests of the children, that there should be a variation of the orders concerning the times that the children attend daycare.

21. In particular, the father’s Affidavit and submissions have not addressed those matters that are set out in s 60CC of the Act.  By way of summary, that section sets out the matters the Court is required to consider in determining the best interests of the children.  Section 60CC(2) sets out the primary considerations, which are:

    (a) the benefit of the child having a meaningful relationship with both of the child’s parents;  and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

22. Section 60CC(2A) of the Act provides that, in resolving any balance or tension between those two considerations, the Court is to give greater weight to the need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.

23. The additional considerations that I’m required to have regard to are set out in s 60CC(3) of the Act.  I won’t transpose those relevant provisions, save in so far as I will note that they can conveniently be grouped under the following topics: 

    d)Issues relating to the children, their views, level of maturity, culture and relationships; 

    e)Issues relating to the parents, decision-making, time spent with the children, fulfilment of obligations towards the children, attitude and capacity and exercise of responsibility; 

    f)Issues of family violence;

    g)The effect of change; 

    h)The difficulty of implementation of orders; 

    i)Avoiding further proceedings; and

    j)Other relevant matters.

24. I appreciate that the totality of those considerations will not be relevant to my consideration of whether there should be a variation of the current parenting orders in respect to the children’s attendance at daycare.  In that respect, I note that in Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court said that:

    … interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at trial.  [Original emphasis].

25. As I expressed to the parties during the course of this morning’s hearing, the facts presented simply do not enable me to sensibly consider matters relevant to whether there should be a variation in the children’s current daycare arrangements.

26. Accordingly, in those circumstances, I will adjourn consideration of the father’s application for proposed order 2.2 until the final hearing.  I will, however, grant the parties liberty to apply in respect to that issue after they receive the report of Dr B.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 August 2018.

Associate: 

Date:              3 September 2018