TURNBULL & SARGENT

[2012] FamCA 331

FAMILY COURT OF AUSTRALIA

TURNBULL & SARGENT [2012] FamCA 331

FAMILY LAW - PROPERTY - Interim distribution on an ex parte basis

Family Law Act 1975 (Cth)

Gabel v Yardley [2008] FamCAFC 162

APPLICANT: Mr Turnbull

RESPONDENT: Ms Sargent

FILE NUMBER: MLC 2589 of 2012

DATE DELIVERED: 24 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Savage

SOLICITOR FOR THE APPLICANT: McKean Park Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Until further order the children S born … April 2004 and J born … November 2005 live with the applicant father.

2. By way to partial property settlement Slater and Gordon Limited distribute monies held on behalf of the parties from the settlement of the parties’ claim in the Supreme Court of Victoria proceeding number … to the applicant father as follows:

   (a)       The sum of $55,580 within 7 days of the date of this order; and

   (b)       The sum of $2,500 on the first day of each month commencing 1 May 2012 and monthly thereafter into a bank account nominated by the applicant father.

3. The Initiating Application filed 23 March 2012 be adjourned to the Docket Registrar at 10:00 am on 1 May 2012 for the making of orders and directions for the further conduct of the matter.

4. The Application in a Case filed 23 March 2012 be otherwise dismissed.

5. The applicant’s costs including his costs of 11 April 2012 and the costs of the hearing on 23 April 2012 and judgment this day be reserved.

6. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.   

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turnbull & Sargent 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 2589 of 2012

Mr Turnbull

Applicant

And

Ms Sargent

Respondent

REASONS FOR JUDGMENT

1. I have listed before me today the Initiating Application and an Application in a Case both filed by the applicant father on 23 March 2012.  In each of those applications, the applicant seeks interim orders that he have sole parental responsibility of  S, who is 8 years of age and J, who is 6, that they live with him, that Slater & Gordon distribute to him from the moneys held on behalf of the parties from the settlement of Supreme Court proceedings number … of 2007, the sum of $2500 per calendar month, the living expenses for he and the children and the sum of $55,580 for the purchase of a Multi-Purpose Vehicle required for S’s transport.

2. The applications are supported by two affidavits and a statement of financial circumstances which were all filed on 23 March 2012, and a further affidavit filed 11 April 2012.  The matter was listed before Senior Registrar FitzGibbon on 11 April 2012.  The wife did not appear, nor was there any appearance on her behalf on that date.  Senior Registrar FitzGibbon made orders, inter alia, adjourning the matter to the Judicial Duty List and providing for service of both the order made that day and the documents filed by the applicant upon both the respondent, and Andrew Spilva Stewart & Co.

3. Although Mr Spilva had not filed a notice of address for service on behalf of the defendant, it was noted by Senior Registrar FitzGibbon that he had advised, by letter dated 27 February 2012, that he had instructions to accept service of any applications for parenting and financial orders issued by the applicant.  He also made note of the fact that Mr Spilva had advised that he had had difficulty getting or retaining instructions from the respondent.  The matter was adjourned to the Judicial Duty List on 23 April 2012 on the basis of the applicant’s parlous financial position.

4. The orders further required the respondent to file any response to the applications, any affidavits in support and a statement of financial circumstances by no later than 19 April 2012 and to either attend or be represented on the adjourned date.  In the event that the respondent failed to either appear or be represented on the adjourned date, or failed to file answering material as ordered, that the applicant have leave to seek orders on an undefended basis. 

5. The respondent has not complied with the orders with respect to the filing of documents, did not appear, and she was not represented at the hearing.  I was, however, referred by Ms Lane of Counsel on behalf of the applicant to the affidavits of service evidencing service of the documents upon the respondent and Mr Spilva as required by the orders, but also advised that she had been instructed by the applicant that he had spoken to the respondent the previous evening and that she had advised him that she was aware of the proceedings, but was not intending to travel to Melbourne from northern Victoria, where she presently resides for the hearing because it was too far. 

6. Although I’m aware that the respondent has had some psychiatric issues and has been hospitalised in relation to those issues, and that her solicitor has had some difficulty obtaining instructions, I am, in all of the circumstances, satisfied that she is aware of these proceedings and proposals sought by the applicant to deal with this matter, at least on an interim basis, as an undefended matter. 

7. It is the applicant’s case that he and the respondent commenced a relationship in or about October 2000 and commenced cohabitation, living together on a genuine, domestic basis as defined by section 4AA of the Family Law Act 1975 approximately six months later. 

8. They were engaged in 2001.  They separated on 17 October 2010 when the respondent was removed by Victoria Police from their home at B Street, Suburb W.  An interim intervention order was made by the Magistrates’ Court the following day.  In early February 2011, the respondent returned to the family home and lived with the applicant and the children until late February 2011 when she was again removed by Victoria Police after allegedly swearing and yelling at the applicant in front of the children.

9. The respondent moved to northern Victoria in or about July 2011.  The children have been in the applicant’s care since separation.  The applicant deposes that shortly after S’s birth it was discovered that she was both physically and mentally disabled, suffering from chromosomal deletion syndrome and global developmental delay.  Thereafter, the applicant ceased all employment and became S’s full-time carer.  The applicant and the respondent issued proceedings against Company C for the loss and damage incurred for S’s ongoing care as a result of her disabilities.

10. These proceedings were settled in October 2011 with Company C agreeing to pay $3 million, plus legal costs, to the applicant and the respondent.  The settlement monies are held in trust by Slater & Gordon on behalf of the parties who have advised that they require either their written consent or a court order before they will release the funds to the parties.  It is these funds which constitute the asset pool of the parties for the purposes of the proceedings for property settlement.

11. On or about 20 December 2012, it was agreed by way of an exchange of letters, that the parties would each receive the sum of $20,000.  It was further agreed, as recently as 20 April 2012, that the further sum of $20,000 be paid to the applicant, and the sum of $10,000 be paid to the respondent. 

12. It is the applicant’s case that he has the full-time care of both S and J.  Prior to settlement of the claim against Company C, the applicant was in receipt of Centrelink benefits in the sum of $1447.30 per fortnight.  After receipt of the settlement monies, and although he did not have any access to the funds, the applicant’s payments and benefits were reassessed and since January 2012 he has received fortnightly benefits of only $654.86.  The applicant applied the sum of $20,000 he received from the settlement moneys to supplement his living expenses, including the cost of repairing and servicing his motor vehicle, rental payments and approximately $12,000 for general living expenses. 

13. The applicant seeks orders that he be paid the sum of $2500 per calendar month from the moneys held on trust by Slater & Gordon to meet the shortfall between his expenses and the benefits paid to him by Centrelink.  It was part of the parties’ claim against Comppany C that S required a special purpose motor vehicle.  And a claim was made for $36,990 for the cost of a motor vehicle, and $31,000 for the necessary wheelchair conversion.  The applicant’s evidence is that he can acquire a suitable vehicle and make the necessary changes to the vehicle for $55,580, and he seeks the release of the necessary funds to do so. The respondent has not responded to the applicant’s requests that she consent to the release of the settlement moneys, save and except as I have referred to previously in these reasons. 

14. The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks fit and proper in the circumstances.  A parenting order may, as is sought by the applicant in this case, deal with the allocation of parental responsibility which includes the allocation of responsibility for making long term decisions and for determining with whom a child should live.

15. As is the case in all applications for parenting orders, the Court must have regard to the objects underlying the provisions of Part VII of the Family Law Act 1975 which are intended to advance the best interest of the child.  They include ensuring that children have the benefit of the meaningful involvement of both of their parents in their lives, protecting the children from harm, ensuring they receive adequate and proper parenting necessary for them to achieve their potential, and ensuring that their parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare and development.

16. The Court must also have regard to the principles underlying those objects which are set out in section 60B(2) of the Act.  Of paramount considering, when making a parenting order, is the best interests of the child or children the subject of that order.  In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations set out in section 60CC(2) and (3) of the Act. 

17. The analysis of those statutory considerations of what is in the best interests of the particular child and the particular circumstances of the case must be made in a way that is consistent with the objectives and principles underlying those objectives.  The primary considerations directly take up the first two of those objectives.  In this case, I’m asked to make an order for interim sole parenting responsibility.  On the basis of the evidence I have before me, I am satisfied that the applicant has been a full-time carer for both the children since their birth, and has cared for them in the respondent’s absence since separation.

18. The applicant alleges a history of family violence in that at, and since separation, the respondent has acted in an emotionally and psychologically abusive manner towards him.  Because of the urgency of the applicant’s financial situation, I am dealing with the interim proceedings on an undefended basis.  However, notwithstanding the allegations of family violence, I do not propose in the interim to make an order for sole parental responsibility.  It was submitted that the applicant has been making all of the decisions with respect to the children since separation and there is no evidence to suggest that the fact that the applicant has not had sole parental responsibility, has impacted either on the children’s welfare or his capacity to properly care for and make the necessary decisions with respect to their welfare.  I am, however, satisfied that it is in the children’s best interests that an interim order be made that they live with the applicant.  He is and has been responsible for their care since separation. 

19. While it is his evidence that the mother maintains some contact with J and that he facilitates that contact, it is also clear that the mother has made some threats to remove the children from the applicant’s care.  I am satisfied that this would not be in the children’s best interests and that the applicant should have the protection of an order to secure the ongoing, familiar arrangements for their care. 

20. There are, in most cases, a number of bases upon which the applicant could make an application for the release of funds from the moneys held in trust on behalf of the parties by Slater & Gordon. In this case, the most likely being either by way of spousal maintenance, child support or part property settlement.  It was submitted on behalf of the applicant that the lump sum required for the acquisition of the car was sought by way of an order for part property settlement whereas the periodic payments were akin to payments of maintenance for the support of the applicant and/or the children, and how those payments are to be taken into account should be reserved for the determination of the trial judge.

21. The Full Court said in Gabel v Yardley [2008] FamCAFC 162 at paragraph 67:

    Logically, until that “one exercise of power under s 79” has been completed, most obviously by the making of orders with respect to the totality of the “property” of the parties to the marriage or either of them, the power has not been spent or exhausted, but exercised partially or in an interim manner.

22. Insofar as I am asked to advance to the applicant the funds he needs for the purchase of the necessary motor vehicle, I must be satisfied that it is appropriate to make such an order and just and equitable in all of the circumstances on the basis of the usual four-step process to do so.  I’m satisfied that it was anticipated by way of a claim for special damages that a special vehicle would be required to transport S and that the applicant does not otherwise have the funds to acquire that vehicle. 

23. His only source of funds is the Centrelink benefits he receives and the moneys, or that portion of those funds now held in trust for his benefit to which he is entitled.  He seeks a payment of $55,580 out of the fund of some $3 million which is the subject of these proceedings.  I’m satisfied that in the circumstances of this case, the applicant, having care of both of the children of the relationship, and S and in particular, both during the relationship and since separation can legitimately expect to receive a significant settlement based upon both his contributions and taking into account the section 75(2) factors. 

24. I am also satisfied that the payment he now seeks is not likely to pose any risk to the legitimate claims of the respondent to that fund by way of final orders.  On that basis, I propose to order by way of part property settlement that Slater & Gordon distribute the sum of $55,580 to the applicant to enable him to purchase the required vehicle to transport S. 

25. Turning now to the periodic payments, whilst it may be superficially attractive to make an order for periodic payments of $2500 per calendar month as sought by the applicant by way of either an order for spousal maintenance or child support, I do not think that it would be appropriate to do so in this case. 

26. The parties have a present entitlement to the sum of $3 million plus and as I assume that money is invested on their behalf, whatever income it generates.  One would expect the interest on a fund of $3 million to be substantial.  The money held by Slater & Gordon is held on behalf of the parties personally, not on S’s behalf, and Slater & Gordon have refused to distribute the money they hold because of the parties’ dispute as to the manner in which it should be distributed, not because they have no entitlement to that money. 

27. Whilst I note that the applicant seeks final orders that he be entitled to retain all of the moneys held in trust by Slater & Gordon, at the very least he is entitled to a significant part of the fund and arguably sufficient of that fund to meet his support and the support of the children in his care.  In those circumstances, I am not satisfied that the applicant does not have the means to adequately support himself.  And in my view, the most appropriate basis on which to make the order he seeks is by way of orders for part property settlement from the fund to which he has an entitlement. 

28. The applicant has no income, nor in circumstances where he is caring for the children, and S in particular on a full-time basis, any income earning capacity.  The only source of funds from which the applicant could obtain the periodic payments he seeks is the funds held by Slater & Gordon.  I’m satisfied the proposed payment is needed to meet the shortfall between the Centrelink benefits the applicant receives and what he needs to support himself and the children. 

29. I’m satisfied that in all of the circumstances for this case, it is proper to make the orders sought by the applicant.  For the same reasons I gave with respect to the order for the lump sum payment, I am satisfied on the basis of the evidence before me that the applicant has a significant entitlement to the moneys held by Slater & Gordon by way of property settlement.  The orders sought by the applicant are not likely, in my view, to impact upon the legitimate claims of the respondent.

30. I have been alerted to the issue that may arise with respect to the respondent’s participation in these proceedings.  And in all of the circumstances, I propose to adjourn this matter to a directions hearing in preference to a conciliation conference so that all necessary directions can be made to bring this matter to a satisfactory conclusion.  I am also asked to make an order with respect to the payment of costs which were reserved on 11 April 2012 and fixed in the amount of $1800.  In all of the circumstances, I do not propose to make an order for costs and propose to reserve all questions of the applicant’s costs. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 April 2012.

Associate: 

Date:  9 May 2012