Uzunlar & Uzunlar
[2017] FamCA 111
•2 March 2017
FAMILY COURT OF AUSTRALIA
| UZUNLAR & UZUNLAR | [2017] FamCA 111 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the presumption in favour of equal shared parental responsibility is rebutted – Where there are allegations of family violence made against both parents – Consideration of whether there is a risk of harm to the children – Where a finding is made that the children are exposed to conflict during changeovers – Consideration of s 60CC factors – Where each party has the capacity to provide for the children’s needs – Orders made for the children to remain living with the mother – Orders made for the father to spend substantial and significant time with the children and minimising the number of face-to-face changeovers to occur between the parties. |
FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS –Where the wife seeks orders for periodic spousal maintenance - Where the wife has the primary care of the parties’ two children – Where the wife is found to be unable to support herself adequately – Where the husband has the capacity to provide financial support to the wife– Where orders are made that the husband pay the wife periodic spousal maintenance, the sum to be reduced after 12 months in anticipation of the wife returning to work – Where orders are made to allow the husband to make the payments on a monthly or quarterly basis.
FAMILY LAW – PROPERTY – PARTIAL PROPERTY DISTRIBUTION – INTERIM PROCEEDINGS – Where the husband seeks orders for an interim property distribution – Where there is insufficient evidence of the husband’s financial circumstances – Where the Court is not satisfied that it would be just and equitable to make orders for an interim property distribution – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Financial Disclosure – Consideration of whether a document is relevant for the purposes of r 13.07 of the Family Law Rules 2004 (Cth) – Orders made for parties to provide financial disclosure in accordance with the Family Law Rules.
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 43(1)(c), 60B, 60CA, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(3), 65AA, 65DAA, 65DAA(3), 72(1), 72(1)(c), 75(2), 75(2)(na), 75(3), 79(4), 80(1), 80(1)(h) Family Law Rules 2004 (Cth) rr 4.15, 13.07, 13.22 |
| Banks & Banks (2015) FLC 93-637 M v M (1988) 166 CLR 69 Maroney & Maroney [2009] FamCAFC 45 |
| APPLICANT: | Ms Uzunlar |
| RESPONDENT: | Mr Uzunlar |
| FILE NUMBER: | SYC | 7473 | of | 2016 |
| DATE DELIVERED: | 2 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 14 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Birchgrove Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Miller |
| SOLICITOR FOR THE RESPONDENT: | Fox & Staniland Lawyers |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Spousal Maintenance
For a period of 12 months from the date of these Orders, the father is to pay spousal maintenance to the mother in the sum of $679.74 per week.
After the period of 12 months from the date of these Orders, the father shall pay spousal maintenance to the mother in the sum of $500 per week.
The father is permitted to pay spousal maintenance to the mother as provided for in Orders 1 and 2 above, on either a monthly or quarterly basis provided that amount is paid in advance.
Parenting
The children are to live with the mother.
The children are to spend time with the father:
(a) During school term, in alternate weeks as follows:
(i)In Week One: from after school on Wednesday to before school on Thursday; and,
(ii)In Week Two: from after school on Friday to before school on Monday.
(b) During school holidays, in alternate weeks as follows:
(i)In Week One: from 5.00 pm on Friday until 8.00 am Monday, and
(ii)In Week Two: from 5.00 pm Monday until 8.00 am on Thursday
Changeover shall occur:
(a) On school days at the children’s school, and,
(b)On non-school days - at a public place agreed between the parties and which is equidistant between the parties’ residences, and in the absence of agreement, at Suburb I McDonalds.
Disclosure
Within seven (7) days of the date of these Orders each party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.
The party receiving the request for further disclosure pursuant to Order (7) above must, within fourteen (14) days after receiving notice, serve on the requesting party a list of documents identifying:
(a)The document(s) in that party’s possession that are within the class of documents sought by the other party;
(b)The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and
(c) The document(s) for which privilege from production is claimed.
Within seven (7) days of receiving the list of documents referred to in Order (8) above, the requesting party must, in writing, ask the disclosing party to:
(a) Produce the document(s) for inspection; or
(b) Provide a copy of the document(s).
The disclosing party must within fourteen (14) days after receiving a notice under Order (9), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):
(a) In relation to which privilege from production is claimed; or
(b) That are no longer in the disclosing party’s possession or control.
In the event of a party taking issue with the adequacy and/or accuracy of the list of documents provided pursuant to Order (8), that party may make an application pursuant to rule 13.22 of the Family Law Rules 2004 (Cth) or such application as they deem fit.
Any application made pursuant to order (11) should be supported by an affidavit addressing the following matters:
(a) why the disclosure sought is relevant to an issue in dispute;
(b)the relative importance of the issue to which the document or class of documents relates;
(c)the parties’ understanding of the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests, involved in the case;
(d)the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents; and
(e)any other matter that the party considers relevant.
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 Uzunlar & Uzunlar 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 7473 of 2016
| Ms Uzunlar |
Applicant
And
| Mr Uzunlar |
Respondent
REASONS FOR JUDGMENT
introduction
This matter concerns competing applications for interim parenting and property orders. On 2 December 2016 interim orders were made providing for the parties’ two children, B born in 2009 (“B”) and C born in 2011 (“C”) (collectively “the children”) to live with the mother, Ms Uzunlar (“the mother”) in the former matrimonial home at Suburb E and spend time, including overnight time, with their father, Mr Uzunlar (“the father”). Orders were also made for the father to pay urgent spousal maintenance in the sum of $500 per week.
The main issue for the Court to consider in the interim parenting proceedings is how much time the children should spend with the father pending the Court receiving a Children and Parents Issues Assessment (“the Memorandum”) following the parties attending an intake assessment with a family consultant on 29 March 2017.
The issues in respect to the interim property proceedings relate to the mother’s application for periodic spousal maintenance, financial disclosure, and the father’s application for an interim property distribution.
Background
The mother was born in 1979 and is currently aged 37 years of age. The father was born on in 1977 and is currently 40 years of age.
The parties commenced living together and were married in 2007. As noted, there are two children of the marriage, B aged seven and C aged six.
The parties separated in November 2016 but continued to live separated under the same roof until the father vacated the former matrimonial home pursuant to Orders made by the Court on 2 December 2016.
On 2 December 2016 I made an urgent spousal maintenance Order that the father pay to the mother the sum of $500 per week provided that such payment continue only until the Court considers the outstanding issues set out in the mother’s Amended Application in a Case filed 1 December 2016.
On 7 December 2016 the father secured alternative rental accommodation being a three bedroom apartment at Suburb J.
During the 2016/2017 Christmas school holiday period the children lived with the mother and spent time with the father six nights per fortnight, in accordance with Orders made by the Court on 2 December 2016.
The mother continues to live at the former matrimonial home in Suburb E with the children.
Evidence
The mother relied on the following:
·Initiating Application filed 11 November 2016;
·Application in a Case filed 11 November 2016;
·Amended Application in a Case filed 1 December 2016;
·Affidavit of the mother filed 11 November 2016 ;
·Affidavit of the mother filed 24 November 2016 ;
·Affidavit of the mother filed 1 December 2016;
·Affidavit of the mother filed 8 February 2017 ;
·Affidavit of Mr K (the mother’s brother) filed 2 December 2016;
·Financial Statement filed 11 November 2016; and,
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 11 November 2016.
The father relied on the following:
·Response to Initiating Application filed 23 November 2016;
·Response to Application in a Case filed 1 December 2016;
·Affidavit of the father filed 23 November 2016;
·Affidavit of the father filed 1 December 2016;
·Affidavit of the father filed 9 February 2017;
·Affidavit of Mr L (the father’s brother) filed 1 December 2016;
·Financial Statement filed 9 February 2017;
·Financial Statement filed 23 November 2016; and
·“Interim Orders sought by the Respondent Husband” attached to the father’s Case Outline document filed 9 February 2017.
The parties also each filed brief written submissions in relation to the issue of disclosure as provided for in the Orders made on 10 February 2017. These written submissions were received on 20 February 2017.
Litigation history
This matter initially came before the Court on 16 November 2016 in the Judicial Duty List for consideration of the mother’s application seeking interim parenting and property orders, including certain restraints against the father, on an ex parte basis. After considering the mother’s application, orders were made on an ex parte basis as follows:
THE COURT ORDERS THAT:
1. Leave is granted for the matter to proceed today on an ex parte and urgent basis.
2. The mother is granted leave to commence parenting proceedings without a Section 601 certificate.
3. The mother is to serve a sealed copy of these Order together with sealed copies of all documents filed by her in the proceedings upon the husband by no later than 4.00 pm on 18 November 2016.
4. I DIRECT that these ex parte Orders be taken out today.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
5. The matter is adjourned for mention before me at 9.30 am on 2 December 2016.
Parenting
6. The Father is restrained from removing the Children from the Commonwealth of Australia.
7. The father is restrained from using or applying for any passport in the names of each of the children, whether such passport is issued from the Commonwealth of Australia or elsewhere.
8. The Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place and/or keep the names of [B] born on … 2009 (a female) and [C] born … 2011 (a male) (“the Children”) on the Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure of the Commonwealth of Australia. The Australia Federal Police maintain an airport watch of the Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
9. The Marshal of the Family Court of Australia and all Officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Father from removing or attempting to remove the Children from the Commonwealth of Australia.
Property
10. The husband is restrained from dealing with and accessing any safety deposit box with the Commonwealth Bank of Australia reserved for him and/or linked to account styled in his name, including but limited to the following:
a. Facility Number: …
b. Safe Custody ID: …11. The wife's solicitor is granted leave to serve upon the Commonwealth Bank of Australia a copy of these Orders.
12. The husband is restrained from dealing with in anyway his right, title and/or interest in the [Suburb D] property and the [Suburb E] property, other than meeting the outgoings of each of the properties.
13. The husband is restrained from further drawing upon any mortgage or loan secured over the [Suburb D] property and/or the [Suburb E] property and further encumbering same, this includes but is not limited the facilities currently secured of one or both of the said properties by the National Australia Bank.
14. That the wife’s solicitor are granted leave to serve upon the National Australia Bank a copy of these Orders.
15. The husband is restrained from dealing with his interest in the [Suburb I] property without given the wife 28 days written notice before doing so and in that notice providing all documents and details that are consistent with his obligations for full and frank disclosure under the Family Law Rules 2004 (Cth).
16. Pursuant to section 114(1)(b) of the Family Law Act 1975 (Cth) the husband is restrained by injunction from entering or remaining in the matrimonial home located at [F Street, Suburb E] (“the [Suburb E] property”), until 4.00 pm on 2 December 2016 or such other time as the Court may order, provided that this Order does not take effect until 7 days after the husband is served with a sealed copy of these Orders.
17. Within 7 days of service of a sealed copy of these Orders on the husband, the husband is to vacate the [Suburb E] property.
18. The parties are granted liberty to apply on 48 hour notice to Court and to the other party, including in respect to any application the husband may wish to make to seek a discharge or variation of any of the Orders made today.
On 21 November 2016 my chambers received an email from solicitors instructed by the father requesting that the matter be urgently re-listed pursuant to Order 18 of the Orders made 16 November 2016 to enable the father to be heard in respect to the Orders made in his absence. Accordingly, the matter was re-listed for directions on 24 November 2016. On that day the following orders were made:
THE COURT ORDERS BY CONSENT THAT:
1. The Orders made ex parte on 16 November 2016 be varied as follows:
6. Both the father and mother be restrained from removing the children, [B] born on … 2009 (female) and [C] born … 2011 (male) (“the children”) from the Commonwealth of Australia.
7. Both the father and mother are restrained from using or applying for any passport in the names of the children whether such passport is issued from the Commonwealth of Australia or elsewhere.
9. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and the Police Forces of the States and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to prohibit the father and mother from removing or attempting to remove the children from the Commonwealth of Australia.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
2. Order 16 made on 16 November 2016 is discharged and in its place the following Order is made:
Pursuant to s 114(1)(a) and (b) of the Family Law Act 1975(Cth) the parties are restrained from causing, or threatening, bodily harm to the other or from harassing, stalking, insulting, intimidating or otherwise bullying the other party or engaging in any other conduct that constitutes family violence as defined in s 4AB of the Act.
3. Order 17 made on 16 November 2016 is discharged and in its place the following Order is made:
Pursuant to s 114(1)(b) of the Family Law Act 1975(Cth), in the event of the wife returning to the matrimonial home, the husband is restrained from entering into the wife’s bedroom or remaining in the wife’s bedroom.
4. The balance of the applications are adjourned before McClelland J to 2.15pm on Friday 2 December 2016 for interim hearing.
5. I DIRECT that these Orders be taken out today as is as reasonably practicable.
On 2 December 2016 further orders were made as follows:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Orders 3 and 17 of the Orders made 24 November 2016 be discharged.
2. The Orders made on 24 November 2016 be varied to include an additional Order 17 which reads as follows:
17. Pursuant to section 114(1)(b) of the Family Law Act 1975 (Cth) the husband is restrained by injunction from entering or remaining in the matrimonial home located at [F Street, Suburb E] (“the [Suburb E] property”), provided that this order does not take effect until after today’s date or as is otherwise agreed between the parties.
3. Pursuant to s. 77 of the Family Law Act 1975 (Cth), the husband is to pay to the wife urgent periodic spousal maintenance in the sum of $500 per week, provided that such payment shall continue only until the Court considers the outstanding issues set out in the wife’s Amended Application in a Case filed on 1 December 2016.
4. The balance of the wife’s Amended Application in a Case filed 1 December 2016 is adjourned for interim hearing before me on 10 February 2017 at 10.00 am.
5. Pursuant to s 11F Family Law Act 1975 (Cth) the parties are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of this Registry as follows:
a. the applicant at 9:00 am on 29 March 2017;
b. the respondent at 11:00 am on 29 March 2017.
6. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer (if any) and the Court.
7. The parties and lawyers on the record attend any Selective Settlement Meeting as may be appointed by the Family Consultant.
8. The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).
9. Noted that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
10. The children, [B] born … 2009 and [C] born … 2011 (“the children”) are to live with the mother and until the father has a proper residential set up for the children, and then the children are to spend time with the father as follows:
a.each alternate Saturday from after [music lesson] and tutoring from 2.30 pm until 8pm;
b.each alternate Sunday from 9.00 am until 7.00 pm;
c.from 9.00 am 5.00 pm on 8 January 2017 and from 3.00 pm until 9.00 pm on 27 January 2017;
d.after 15 December 2016, on Wednesday evenings from 5.00 pm until 8.00 pm; and,
e.such other times as may be agreed between the parents in writing.
11. Provided that the father has appropriate accommodation, during the forthcoming Christmas school holiday period, the father is to continue to spend alternate weekends with the children from 5.00 pm on Friday until 8.00 am on Monday, and in the alternate week, from 5.00 pm on Wednesday until 8.00 am on Thursday.
12. The children are to spend from 9.00 am until 5.00 pm with the father on Christmas Eve in 2016.
13. The father is to cause [M Pty Ltd] to make available to the mother for her exclusive use the [4WD] motor vehicle registration number … and to cause the company to maintain current registration, CTP insurance and comprehensive insurance in respect of the vehicle.
14. Order 13 of the Orders made 16 November 2016 be varied to read as follows:
13. Save in so far as it is necessary for the husband to comply with the Orders made on 2 December 2016 in respect to urgent spousal maintenance, or as is otherwise agreed between parties, the husband is restrained from further drawing upon any mortgage or loan secured over the [Suburb D] property and/or the [Suburb E] property and further encumbering same, this includes but is not limited the facilities currently secured of one or both of the said properties by the National Australia Bank.
THE COURT NOTES THAT:
A. The wife undertakes to sign all documents necessary in respect to the parties facilitating the payment of interest over the parties’ mortgage.
Parties’ proposals
Mother’s proposals
In her Amended Application in a Case filed 1 December 2016 the mother sought the following orders:
Application in Case
1. That the Applicant Wife have leave to seek orders on an ex-parte and urgent basis.
2. That the Mother have leave to commence parenting proceedings without a Section 601 certificate.
Parenting - Overseas Travel
3. That pending further order the Father be restrained from removing the Children from the Commonwealth of Australia.
4. That pending further order Father be restrained from using or applying for any passport in the names of each of the children, whether such passport is issued from the Commonwealth of Australia or elsewhere.
5. That pending further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place and/or keep the names of [B] born on … 2009 (a female) and [C] born … 2011 (a male) (“the Children”) on the Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure of the Commonwealth of Australia. The Australia Federal Police maintain an airport watch of the Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
6. That pending further order the Marshal of the Family Court of Australia and all Officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Father from removing or attempting to remove the Children from the Commonwealth of Australia.
Property
7. That pending further order, the Husband be restrained from dealing with and accessing any safety deposit box with the Commonwealth Bank of Australia reserved for him and/or linked to account styled in his name, including but limited to the following:
a. Facility Number: …
b. Safe Custody ID: …
8. That the Wife's solicitor have leave to serve upon the Commonwealth Bank of Australia a copy of these orders.
9. That the Husband be restrained from dealing with in anyway his right, title and/or interest in the [Suburb D] property and the [Suburb E] property, other than meeting the outgoings of each of the properties.
10. The Husband be restrained from further drawing upon any mortgage or loan secured over the [Suburb D] property and/or the [Suburb E] property and further encumbering same, this includes but is not limited the facilities currently secured of one or both of the said properties by the National Australia Bank.
11. That the Wife’s solicitor have leave to serve upon the National Australia Bank a copy of these orders.
12. That the Husband be restrained from dealing with his interest in the [Suburb I] property without given the Wife 28 days written notice before doing so and in that notice providing all documents and details that are consistent with his obligations for full and frank disclosure under the Rules.
Parenting
13. That pending further order the Children live with the Mother and until the Father has a proper residential set up for the children that he spend day time only with the children as follows:
a.Alternate Saturdays from after their [music] lessons and tutoring at 2:30pm until 8pm; and
b. Alternate Sundays from 9am to 7pm; and
c. From 9am to 5pm on 8 January 2017; and
d. Form 9:00am to 5pm on 27 January 2017.
14. That to facilitate the father’s time with the children that he collect them from outside the home and return them to outside of the home.
15. That pursuant to s 66G of the Family Law Act, the Respondent Husband pay to the Applicant Wife, urgent child maintenance.
16. Pending the receipt by the Applicant Wife of an administrative assessment for child support in respect of children [B] and [C], that the Respondent Husband pay to the Applicant Wife child maintenance in the sum of $340 per child per week payable fortnightly in advance from the date of these orders in to the Commonwealth Bank account of the Wife, being: BSB … Number: …20.
17. Pending further order, the Respondent Husband is to pay the Applicant Wife by way of spousal maintenance the sum of $1,100 per week payable fortnightly in advance from the date of these orders in to the Commonwealth Bank account of the Wife, being: BSB … Number : …20.
18. The parties immediately do all such things necessary to amend the NAB loan repayment terms from interest plus principal to interest only.
19. For such time as the [Suburb D] property remains tenanted, the parties do all such things to ensure that the proceeds of the rental are transferred to the NAB home loan account.
20. The Respondent Husband pay as and when they fall due:
a.All mortgage payments to NAB, less any payments pursuant to paragraph 19 above; and
b.All instalments of council rates, water rates and home and contents insurance.
21. Pending further order, the Respondent Husband cause [M] Pty Ltd to make available to the Applicant Wife for her exclusive use the [4WD] motor vehicle registration number … and to cause the company to maintain current registration CTP insurance and comprehensive insurance in respect of the vehicle.
At the interim hearing on 10 February 2017 the mother advised the Court that she pressed the following orders:
·proposed orders 13 and 14 in respect to parenting, and
·proposed order 17 in respect to spousal maintenance.
The mother also sought financial disclosure from the father in respect to particular documents which were set out in a Schedule attached to the mother’s written submissions provided in an email to my Associate dated 20 February 2017. The documents sought by the mother as set out in the Schedule were as follows:
·The husband’s income tax return and Notice of Assessment for the year ended 30 June 2016;
·The past three years’ bank statements for the husband’s accounts with ANZ bank for account numbers BSB … account …93 and BSB … account …75;
·The husband’s past three years’ credit card statements for all credit providers of his, including but not limited to, his NAB credit card;
·The financial accounts (as opposed to the income tax returns) of M Pty Ltd for the years ended 30 June 2014 and 30 June 2015;
·The income tax return and financial accounts of M Pty Ltd for the year ended 30 June 2016;
·The half yearly for the accounts of M Pty Ltd for the financial year 2016/2017;
·Bank Statements for the past three years for all accounts held by M Pty Ltd;
·Statements for the previous 24 months as to all shares (and other investments) in the name of the husband, or held jointly with any other person or entity;
·A copy of the Last Will of the Late Mr N Uzunlar, the husband’s Late father;
·Copies of all correspondence, documents and writings relating to the Estate of the Late Mr N Uzunlar including evidence of the assets and liabilities of the Estate.
Father’s proposals
At the interim hearing on 10 February 2017 the father sought the following orders:
Parenting
1.That the parties have equal shared parental responsibility for the children.
2.That the children live with each party rotating on a 2-week cycle as follows:
a.WEEK ONE:
(i)With the Father from the conclusion of school on Friday until the beginning of school on Friday one week later; and
(ii)Notwithstanding Order 2.a.(i), with the Mother from after school Tuesday until 7pm that evening;
b.WEEK TWO:
(i)With the Mother from the conclusion of school on Friday until the beginning of school on Friday one week later; and
(ii)Notwithstanding Order 2.b.(i), with the Father from after school Tuesday until 7pm that evening;
3.That the children live with each parent for one half of all mid-term school holidays at the end of terms 1, 2 and 3 as agreed between the parties and failing agreement the children will live with each parent as follows:
WITH THE MOTHER:
a.For the first half of all mid term school holidays in all even numbered years commencing from the conclusion of school on the last day of the school term until 6.30pm at the midpoint of the school holidays; and
b.For the second half of all mid term school holidays in all odd numbered years commencing from the midpoint of the school holidays until before school on the first day of the new school term.
WITH THE FATHER:
c.For the first half of all mid term school holidays in all odd numbered years commencing from the conclusion of school on the last day of the school term until 6.30pm at the midpoint of the school holidays; and
d.For the second half of all mid term school holidays in all even numbered years commencing from the midpoint of the school holidays until before school on the first day of the new school term.
4.That for the purposes of these Orders, the midpoint of the school holidays is the day which is the middle day between the last day the child is required to attend school and the first day the child is required to attend school and in the even the school holiday period has an even number of days the midpoint shall be the earlier of the two middle days of the school holiday period.
5.That the children live with each parent during the December / January holidays as agreed between the parties but failing agreement, with each [parent] rotating on a 2-week cycle as follows:
a. WEEK ONE:
(i)With the Father from 3pm Friday until 9am Friday one week later; and
(ii)Notwithstanding Order 5.a(i), with the Mother from 3pm Tuesday until 7p, that evening;
b. WEEK TWO:
(i)With the Mother from 3pm Friday until 9am Friday one week later; and
(ii)Notwithstanding Order 5.b.(i), with the Father from 3pm Tuesday until 7pm that evening;
6.That notwithstanding Order 5 above, the children spend time with the father from 9am 27 December 2017 until 1 week later.
7.That for purposes of changeover during school holiday periods the parent who is due to have the children in their care, shall collect the children from the other parents residence at the commencement of their time pursuant to these Orders.
8.That the children shall spend the following special occasions in the care of the Father if they are otherwise not in his care pursuant to these Orders, and the mothers time shall be suspended:
a.On Father’s Day from 9.00am to 5.00pm.
b.On the children’s birthdays:
i.From 9.00am to 2.00pm if a weekend or during school holidays;
ii.From after school to 6.00pm if a school day.
c.On his birthday 8 January which always falls in school holidays from 9.00am until 6.00pm.
d.During Easter: from after school/3.30pm Thursday (day before Good Friday) to 9.00am Easter Sunday in all odd numbered years from 9.00am, Easter Sunday to before school/8.50am Easter Tuesday in even numbered years.
e.During [religious holy days] from 8.00am to 3.00pm in even numbered years, and from 3.00pm to 8.00pm in odd numbered years.
9.That the children shall spend the following special occasions in the care of the Mother if they are otherwise not in her care pursuant to these Orders, and the father time shall be suspended:
a.On Mother’s Day from 9.00am to 5.00pm
b.On the children’s birthdays:
i.From 9am to 2.00pm if a weekend or during school holidays;
ii.From after school to 6.00pm if a school day.
c.On the mother’s birthday:
i.If a school day from after school to 6.00pm;
ii.If a non school day from 9.00am to 6.00pm.
d.During Easter: from after school/3.30pm Thursday (day before Good Friday) to 9.00am Easter Sunday in all even numbered years and from 9.00am, Easter Sunday to before school/8.50am Easter Tuesday in odd numbered years.
e.During [religious holy days] from 8.00am to 3.00pm in odd numbered years, and from 3.00pm to 8.00pm in even numbered years.
10.That except where changeover shall take place at the children’s schools and unless otherwise provided in these Orders, changeover on a non-school day (including school holidays) is to take place at the [Suburb E] property.
11.That while the children are in the care of a party, that party shall:
a.Notify the other party immediately of any serious illness or injury suffered by either child whilst in their respective care;
b.Notify the other party if either child is going to be absent from school or after school activities, particularly if that child is absent due to illness.
c.That each parent notify by telephone or text the other parent in the event any child is hospitalised or is required to attend hospital for any diagnostic or procedural treatment immediately from the time of the event, unless the hospitalisation is part of a schedule of regular appointments that the other parent is already aware of.
12.If either child is sick or unwell, the parent who has care for that child that night pursuant to these Orders shall provide care for the child.
13.That each parent shall keep the other informed at all times of his or her current residential address, email address and telephone number within 2 days of making the change.
14.Without admissions that each party is restrained from abusing or denigrating the other parent (or members of that parent’s family) to or in the presence or hearing of the children including by social media.
SPOUSE MAINTENANCE
15.That the Husband pay the mortgage on the [Suburb E] property on an interest only basis as and when each payment falls due.
16.That the Husband pay council rates in respect of the [Suburb E] property as and when each payment falls due.
17.That otherwise the Mother’s Application for spouse maintenance be dismissed.
18.That the Wife forthwith be responsible for payments of utilities and outgoings in respect of the [Suburb E] property, including electricity, gas, water rates and home and contents insurance, as and when each payment falls due.
PROPERTY:
19.That the parties be permitted to access the redraw facility on the [Suburb E] property, and do all acts and necessary things to draw money to be paid as follows:
a.$120,000 to the Husband by way of partial property settlement; and
b.$120,000 to the Wife by way of partial property settlement.
20. That the Wife forthwith provide documents belonging to the Husband in her possession in the [Suburb E] property, including his [Country G] Army Exemption Certificate, [Country G] Citizenship Certificate and original professional qualifications.
In respect to the issue of disclosure, the father’s position, as set out in his written submissions, was that in the event that the Court was not minded to refer all disclosure matters to the Case Assessment Conference listed on 16 March 2017, the father sought the following disclosure orders:
1.That within 28 days of the date of this order the husband shall send to the wife’s solicitor the following documents:
a.The past three year’ bank statements for the husband’s accounts with ANZ bank for account number BSB … account …93;
b.The husband’s past three years’ credit card statements for all credit providers in his sole name excluding any cards where the wife has access to the statements online including but not limited to, his NAB credit card;
c.The financial accounts of [M] Pty Ltd for the years ended 30 June 2014 and 30 June 2015;
d.The income tax return and financial accounts of [M] Pty Ltd for the year ended 30 June 2016;
e.The accounts of [M] Pty Ltd for the financial year 2016/2017 when prepared;
f.Bank Statements for the past three years for all accounts held by [M] Pty Ltd;
g.dividend statements for all shareholdings of the Husband in publically listed companies as at 1 July 2016 and current date;
h.A copy of the Last Will of the Late [Mr N Uzunlar], the husband’s Late
i.father “the estate”;
j.A copy of the probate for the estate.
2.The husband shall provide his 2016 income tax return and the assessment to the Wife within 7 of days of receiving the assessment from the ATO, noting that the husband cannot prepare same until he locates varies documents about the cost base for a CGT asset sold in that financial year.
3.That the Wife provide to the husband solicitors within 28 days:
a.Her 2016 income tax return and assessment;
b.All of her bank statements for all accounts she has an interest including her CBA account for the last 3 years.
c.All superannuation members statements for all funds to which she has an interest (regardless of how small the balance is).
d.Any documents the wife has in her possession regarding her previous property at [U Street, Suburb V] including settlement statement for the sale and the mortgage statement as at April 2007.
4.That in the event that the husband or the wife fail to comply with these disclosure obligations set out in these Orders within the timeframe specified, the husband and wife have liberty to issue such relevant subpoena to obtain.
Summary of Arguments
Contentions of the mother
Spousal maintenance
Counsel for the mother argued that the mother had satisfied the gateway requirement of s 72(1) of the Family Law Act 1975 (Cth) (“the Act”) because she was not able to adequately support herself by reason of:
·having the care and control of two children of the marriage who are both under the age of 18 years; and/or,
·the fact that she was unemployed after having spent several years out of the paid workforce due to her responsibilities as the primary carer of the parties’ children.
The mother acknowledged that she was in receipt of child support payments from the father in the sum of $550 per month. The mother argued that her receipt of child support should be disregarded as it was attributable to expenses associated with the children. The mother noted at Part N of her Financial Statement, the sum of $1,107.74 which she identified as the weekly expenses incurred by her in respect to the children. Accordingly, it was submitted, that the child support payments she receives, which amount to $127 per week, are considerably less than the weekly expenses she incurs in providing for the physical needs of the children.
It was further argued that the sums received by the mother by way of Centrelink benefits should be disregarded pursuant to s 75(3) of the Act.
Accordingly, the mother claimed that the weekly expenses incurred by her in respect to her needs were as set out in Part N of her Financial Statement. This amount totalled the sum of $679.74 per week. In addition, counsel for the mother submitted that any order for spousal maintenance should also have regard to the fact that the mother incurs $30 per week in meeting her required minimum credit card payments.[1]
[1] Financial Statement of the mother filed 11 November 2016 at [30].
In terms of the father’s capacity to pay spousal maintenance to the mother, it was contended by the mother’s counsel that the Court should infer that, at Part B of the father’s Financial Statement filed 9 February 2017, the father had understated his income as $2114.46 per week and had overstated his expenditure as $4034.80 per week. It was submitted that this difference in expenditure over the father’s stated weekly income was unsustainable and the Court should infer that the father’s assertions are implausible. Counsel for the mother argued that, as a result of the father failing to provide appropriate financial disclosure, the Court should not accept the contentions of the father that he is unable to satisfy an order for spousal maintenance.
Having regard to the relevant matters set out in s 75(2) of the Act, the mother argued that the Court should make an order for periodic spousal maintenance in her favour in the sum of $710.74 per week.
Parenting
In respect to parenting matters, counsel for the mother argued that in circumstances where the mother has concerns regarding the appropriateness of the arrangements for the children to spend time with the father, the Court should take a conservative approach in respect to the orders it proposes to make. Specifically, it was submitted that the Court should not consider making an order for the children to spend substantial and significant time with the father until such time as the Court has the opportunity to consider the Memorandum which is to be provided to the Court following the family consultant’s interviews with the parties and the children on 29 March 2017.
The concerns the mother raised in respect to the children spending time with the father broadly related to the following:
·the children’s sleeping arrangements and, in particular, that the children were sleeping in the father’s room;
·the presence at the father’s property of persons who she has concerns about;
·the parties’ daughter, B, being permitted to shower with another young girl of approximately the same age.
The mother also alleges that the father has engaged in acts of family violence including:
·in 2013, the father grabbed the mother by the throat and said “you can fuck off this is all mine” in front of the children;
·that the father has been aggressive towards the mother during changeovers. The mother alleges that, on 27 January 2017 during a changeover, the father “swerved towards me in his car, and sped past me”. The mother alleged that, at the time he altered the direction of the car he was driving, the father was “not more than 50 cm away from me”.
·that during the course of the relationship, the father engaged in verbal abuse of the mother including in the presence of the children.
The mother contended that while the father has presented evidence to the Court regarding the amount of time he is spending with the children and his role in attending to their needs while they are in his care, that evidence is inconsistent with his conduct when the parties were living together. The mother alleges, in that respect, that the father spent relatively little time at home as result of his long working hours and going to the gym before or after work.
In summary, the mother argued that, as result of the concerns raised by her in respect to the father’s previous conduct and his capacity to appropriately care for the children, it would not be in the best interests of B and C for the Court to make orders for them to spend significant and substantial time with the father. The mother further argued that, as result of the children’s young ages, it was important that they sleep at their home prior to school days.
Accordingly, the mother argued that, on those weekends that the children spend time with the father, they should be returned to her at the former matrimonial home by 5.00 pm on Sunday. Counsel for the mother indicated that the mother had no objection to the children spending time with the father on one night during alternate weeks, however it remained her contention that the children should not spend overnight time with the father prior to a school day.
Contentions of the father
Spousal Maintenance
Counsel for the father argued that the mother had not satisfied the gateway requirement of s 72(1) of the Act because she was unable to demonstrate that she has been seeking employment. In that respect, the father argued that the mother has a degree and is qualified to enter the workforce, even on a part-time basis. It was submitted that, without evidence of the mother’s attempts to obtain employment, the Court could not be satisfied that she is unable to adequately maintain herself.
In that respect, it was noted that the children are now seven and six years of age and are attending school. This, it was argued, enabled the mother to obtain at least part-time employment while the children attended school.
Accordingly, it was argued on behalf of the father that the mother had not met the gateway requirement of s 72(1) because having the care of the parties’ two children did not prevent her from obtaining at least part-time employment.
Further, it was argued that in considering s 75(2) the Court should have regard to the fact that the mother has the physical and mental capacity to obtain employment and accordingly, should not be satisfied that the mother is unable to support herself adequately.
It was submitted that if, contrary to the father’s submissions, the Court finds that the mother has met the gateway requirement of s 72(1), the Court should nonetheless find that the mother’s needs are restricted to those items identified in Part N of the mother’s Financial Statement. In this respect, it was submitted that the Court should disregard the fact that the mother claims $30 per week in respect to the minimum repayment she is required to make on her visa card. Counsel for the father submitted that, in the absence of evidence of the nature of the expenditure incurred by the mother in respect to that credit card debt, the Court should not infer that the obligation to repay the credit card debt was the result of expenditure that was necessary to enable the mother to support herself.
Parenting
In respect to parenting matters, counsel for the father asserted the following.
The proceedings are at a relatively early stage and the Court should be cognisant of the fact that, until November 2016, the father was spending every night at the former matrimonial home with the children.
The father spent substantial and significant time with the children over the 2016/2017 Christmas school holiday period including every second weekend from Friday evening until Monday morning and in the alternative weeks from Monday afternoon until Thursday morning.
Therefore, it was argued that reducing the amount of time that the children spend with the father would be a substantial change for them.
To a similar effect, it was argued that in terms of s 60CC(2)(a), it is important for the children to continue to spend equal or, at least, substantial and significant time with the father to ensure that the children have the benefit of a meaningful relationship with him.
In terms of s 60CC(2)(b) the father denies that he has engaged in family violence or controlling behaviour towards the mother. Specifically, the father denies the mother’s allegations that on 27 January 2017 he “swerved” his car towards the mother at changeover. The father alleges that the mother has engaged in abusive conduct towards him, including on one occasion in 2013, spitting in his face.
In that respect, it was acknowledged that there are competing contentions between the parties regarding unpleasant living conditions in the former matrimonial home including mutual allegations of family violence against the other parent. It was noted, however, that those events, in so far as they can be established, occurred in circumstances of the breakdown of the marital relationship which resulted in considerable tension between the parties. The circumstances between the parties are now, it was argued, substantially different as a result of living in separate homes.
It was argued that the following s 60CC(3) matters were relevant.
In terms of s 60CC(3)(b) it was argued that the children have a warm and loving relationship with each parent.
In terms of s 60CC(3)(c) it was contended that, during the course of the parties’ relationship, the parties made decisions in respect to major long-term issues in relation to the children together, and that it was perhaps too soon for the Court to arrive at any conclusion as to the extent to which the parties have participated in making joint decisions regarding the children in the period since separation. However, it was noted that the parties were able to reach agreement in respect to the children spending additional time with the father during the 2016/2017 Christmas school holiday period.
In terms of s 60CC(3)(ca) counsel for the father referred to paragraphs 8, 31, 42 and 107 of his affidavit filed 1 December 2016 in support of his contention that the father has been extensively involved in the care of the children. This includes, he says, being involved in assisting to feed the children, bathing the children, assisting them with their language development including reading to them at bedtime, and taking them to school and extracurricular activities. Further, counsel for the father referred to paragraphs 14 to 34 and 40 of the father’s affidavit filed 9 February 2017 which set out the extent to which the father is currently involved in the care of the children and is fulfilling his obligations to maintain the children.
In terms of s 60CC(3)(d) counsel for the father submitted that to reduce the amount of time the children spend with the father, would be a significant change for the children, particularly in circumstances where, until November 2016, the father lived at the former matrimonial home with the children and the mother.
In terms of s 60CC(3)(e) it was argued that there were no practical difficulties with the children spending time with the father. It was noted that the father’s current accommodation is close to where the children live and where they attend school.
In terms of s 60CC(3)(f) counsel for the father referred to paragraphs 8, 31, 42 and 107 of the father’s affidavit filed 1 December 2016 and to paragraphs 14 to 34 and paragraph 40 of the affidavit filed 9 February 2017 as providing evidence of the father’s capacity to provide for the needs of the children including their emotional and intellectual needs.
Further, in terms of s 60CC(3)(f), counsel for the father argued that as a result of being self-employed the father has the capacity to adjust his working hours to accommodate organising the children for, and taking them to school in the morning, and collecting them from school in the afternoon. It was further asserted that the father could adjust his working hours to accommodate taking the children to their extra-curricular activities after school.[2]
[2] Affidavit of the father filed 9 February 2017 at [116] and [118] – [119].
Similarly, in respect to s 60CC(3)(i) the father referred to those paragraphs of his affidavits, to which I have earlier referred, together with the fact that he is now meeting his child support obligations in accordance with an administrative assessment issued by the Child Support Agency.
Counsel for the father asserted that the mother had not been cooperating with the father in respect to parenting arrangements. In that respect it was alleged that the mother had failed to provide the children’s clothing to him when he has requested it.
The father further alleges that the mother unreasonably rejected his request for the children to spend additional time with him in January 2017 on the day of his sister’s wedding.
Finally, the father alleged that the mother has denigrated the father’s rental accommodation by referring to the accommodation as a “hotel”, and accusing the father of taking a lounge from the former matrimonial home without the mother’s consent.
In summary, it was argued, on behalf of the father, that having regard to the relevant s 60CC considerations, the Court should make orders for the parents to have equal shared parental responsibility for the children and that the children should spend equal time with each of the parents.
Interim property application
The father argues that, having regard to his Financial Statement filed 9 February 2017, the Court should reasonably infer that the current approximate value of the matrimonial property pool is $2 000 000. In those circumstances, it was argued that there is adequate property to satisfy the father’s application for a partial property distribution of $120 000 to each of the parties. It was contended, by the father, that an interim distribution to the parties in the total sum of $240 000 would be slightly in excess of 10 per cent of the available property pool.
The father argues that, having regard to the contributions of the parties it is inconceivable that the Court would not make final orders for the distribution of matrimonial property such that each party receives well in excess of 10 per cent of the property.
The father argued that the interests of justice justify the Court making an order for an interim property distribution because the father is currently unable to meet his weekly expenses as indicated in his Financial Statement filed 9 February 2017, and as evidenced by the fact that the father has been required to borrow approximately $60 000 from his nephew to meet his legal fees and ongoing living expenses.
The father further contends that it has been necessary for him to pay approximately $31 000 in legal expenses to date, with future legal expenses anticipated to be in the approximate sum of $102 000.
It was argued, on behalf of the father, that the Court could be comfortably satisfied that, at final hearing, there would be sufficient funds remaining in the matrimonial property pool to make any necessary adjustment to account for the interim property distribution. In that respect, it was submitted that, having regard to s 79(4) and s 75(2) of the Act, the Court would make orders at final hearing that provided for each party to receive a distribution of the matrimonial property well in excess of the sum of $120 000.
Counsel for the father submitted that the making of an order for interim property distribution is “just and equitable” in all the circumstances because the father is unable to meet his weekly expenses, the father has been forced to borrow money to meet his legal fees and ongoing expenses, and that the father is continuing to incur ongoing expenses as result of having to secure rental accommodation which is suitable for the children at the cost of $850 per week.[3]
[3] Father’s Financial Statement filed 9 February 2017 at Part G, Item 21.
Finally, it was submitted that it was appropriate for an order for an interim property distribution to be made to enable each of the parties to properly prepare their legal cases.
Mother’s response to father’s application for an interim property distribution
In response to the father’s application for an interim property distribution, the mother contended that her application on a final basis is for the father to transfer the former matrimonial home to her. It was submitted that, if an order was made for an interim property distribution at this time, such an order will increase the liabilities of the parties such that it is more likely it will be necessary for the parties to sell the former matrimonial home following the final hearing of the matter.
It was argued that the Court should not make such an order at an interim stage because the Court would not be able to reinstate the position once the property is sold.
It was further argued that the Court cannot be satisfied that it is in the interests of justice for an order for partial property distribution to be made at this stage in the proceedings or that it is just and equitable to do so, particularly where it is alleged that the father has not complied with his obligations of disclosure to date.
Issues
Accordingly, the issues to determine in these proceeding are:
·Should the father be required to pay spousal maintenance to the mother?
·What interim parenting orders should be made?
·Should there be an order for a partial distribution of property?
consideration
Spousal maintenance
In the recent case of Hall v Hall (2016) 332 ALR 1 (“Hall v Hall”), the High Court set out the relevant legislative requirements to apply in considering an application for interim spousal maintenance as follows:
3. … The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.
4. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.
5. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
…
8. Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
(Footnotes omitted)
Issues to determine in respect to spousal maintenance
The issues for determination, in respect to spousal maintenance are therefore as follows:
i.Is the mother unable to support herself adequately as contemplated by s 72(1) of the Family Law Act 1975 (Cth) (“the Act”) and if so, to what extent (i.e. the gateway requirement)?
ii.What are the mother’s reasonable needs?
iii.What capacity does the father have to meet a spousal maintenance order, if such an order were to be made?
iv.If (i) to (iii) favour an order for spousal maintenance being made, what order is reasonable having regard to s 75(2) of the Act?
Evidentiary challenges in interim proceedings
Making findings in respect to these issues can be difficult in interim proceedings. As the Full Court recently said in Edgar & Strofield [2016] FamCAFC 93 at [15]:
…the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing...
Nevertheless, despite these limits as noted in Hall v Hall, the High Court confirmed that an applicant seeking interim orders for spousal maintenance nonetheless carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth).
Consideration
Is the gateway requirement of section 72(1) satisfied?
In this matter it is not in dispute that the mother has the care and control of the two children of the marriage who are under the age of 18 years.
The father, however, disputes that this results in an inability of the mother to support herself adequately because:
a)the mother has qualifications and experience enabling her to obtain appropriate gainful employment; and
b)the mother has not attempted to exercise her earning capacity.
In Brown & Brown (2007) FLC 93-316 at 81,455-56 the Full Court summarised the principles to be applied in determining whether a party has the capacity to support themselves adequately as follows:
·The word “adequately” is not to be determined according to any fixed or absolute standard.
·The idea that “adequate” means a subsistence level has been firmly rejected.
·Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
·However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
As noted, it is not in dispute that the mother is the primary carer of the parties’ two children who are currently in Year 1 and Year 2 at primary school. As will be discussed, in considering the factors set out in s 75(2) of the Act, it is reasonable to infer that having the responsibility for the primary care of the children impacts upon the mother’s ability to engage in full time employment, which in turn impacts on the mother’s income earning capacity.
Further, in terms of s 72(1)(c), it is noted that the mother has been out of the paid workforce since the parties’ eldest child was born seven years ago. It is also reasonable to infer that returning to full time employment after a period of seven years would require a period of adjustment and quite possibly supplementary training.
Accordingly, while I am satisfied that the mother has an income earning capacity, that capacity is limited by her responsibilities as the primary carer of the parties’ two children and by the fact that it is reasonable to assume that she would face some challenges in re-entering the workforce on a full time basis. Insofar as those factors impact upon the mother’s income earning capacity, they necessarily impact upon her ability to support herself adequately and I am therefore satisfied that the gateway requirement set out in s 72(1) of the Act has been met.
What are the mother’s reasonable needs?
It was not in dispute that the mother currently receives $550 per month from the father in respect to child support. The mother also receives a single parenting payment of $756.70 per fortnight from Centrelink. From 25 December 2016 the mother began receiving Family Tax Benefit A and B in the sum of $423.28 per fortnight. Since being approved for child support on 3 January 2017, the mother’s entitlement to Family Tax Benefit A and B payments have been reduced to $320 per fortnight.
In considering an application for spousal maintenance, it is noted, however, that s 75(3) provides that the Court is required to “disregard any entitlement of the party… to an income tested pension, allowance or benefit”.
Further, s 75(2)(na) requires the Court to have regard to any child support which has been, or is to be, provided by the liable party under the Child Support (Assessment) Act 1989 (Cth).
The mother’s weekly expenses, as set out in Part N of her Financial Statement filed on 11 November 2016 list her personal expenses as being in the sum of $679.74 per week. No challenge was made by the father to the reasonableness of those expenses. As noted, however, the father did dispute the mother including as part of her weekly expenses the minimum credit card repayment of $30 per week. In the absence of evidence that it was necessary for the mother to incur that expenditure to support herself, I do not include the payment of $30 per week in respect to the mother’s credit card in my assessment of the mother’s needs.
In addition, at Part N of her Financial Statement, the mother asserts that she incurs expenses in relation to the children which total $1107.74 per week. However, in the context of an application for spousal maintenance, it is necessary to distinguish between the expenses of the applicant spouse and the expenses of the children of the marriage.[4] I therefore do not include the sum of $1107.74 in the mother’s weekly expenses.
[4] Stein & Stein (2000) FLC 93-004.
As discussed, in Hall v Hall, the High Court noted that, even in interim proceedings, there needs to be an evidentiary basis which justifies the making of orders which are sought by an applicant for relief.
However it is inappropriate to take too rigid an approach. In that context, the historical recognition of public interest considerations involved in spousal maintenance is relevant. For instance, In Hyman v Hyman [1929] AC 601; [1929] All ER 245 at 258 Lord Atkin, said:
…When the marriage is dissolved the duty to maintain arising out of the marriage tie disappears. In the absence of any statutory enactment the former wife would be left without any provision for her maintenance other than recourse to the poor law authorities. In my opinion, the statutory powers of the court to which I have referred were granted partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support….
Reference to the respective roles of husband and wife are of historical interest only. However, the public interest continues to be reflected in s 75(3) of the Act which requires the Court, in determining a parties’ responsibility to pay maintenance, to “disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”
In terms of approach, in Drysdale & Drysdale [2011] FamCAFC 85, Coleman J of the Full Court at [40] said:
It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s 77 of the Act, orders for interim maintenance are as their title implies. The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order…
I note that in McCrossen & McCrossen (2006) FLC 93-283 at 80,838, the Full Court said that the question as to whether or not a person is able to support themselves “adequately” is:
… not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.
(References omitted)
Accordingly, I determine that a reasonable amount to allow for the mother’s weekly expenses is the sum of $679.74 per week.
What capacity does the father have to meet a spousal maintenance order, if such an order was to be made?
The father asserts that he does not have the capacity to meet a spousal maintenance order as sought by the mother. In that respect, in his Financial Statement filed 9 February 2017 the father sets out his total average weekly income as $2114.46 per week and his total personal expenditure as $4034.80 per week. The mother asserts that, in the absence of documentation confirming the father’s income and expenditure, the Court should not accept the father’s contention that he does not have the capacity to meet an order for spousal maintenance.
In that respect, reference was made to the failure of the father to comply with r 4.15 of the Family Law Rules 2004 (Cth) (“the Rules”) which, relevantly provides:
FAMILY LAW RULES 2004 - RULE 4.15
Evidence to be provided
(1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:
(a) a copy of the party’s taxation returns for the 3 most recent financial years;
(b) the party’s taxation assessments for the 3 most recent financial years;
(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments--the party’s payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company--the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining the income, needs and financial resources of the party.
Note 1: Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.
Note 2: For modification of a spousal maintenance order, see section 83 of the Act. For modification of a de facto maintenance order, see section 90SI of the Act.
(2) Before the hearing date, a party must produce the documents mentioned in subrule (1) for inspection, if the other party to the proceedings makes a written request for their production.
(3) If a request is made under subrule (2), the documents must be produced within 7 working days of the request being received
As noted, the mother asserts that the disparity between the father’s asserted income and expenditure is implausible. The father, on the other hand, says that he has only managed to sustain his current level of expenditure as a result of a loan in the sum of $60 000 which he has obtained from his nephew.
In these interim proceedings it is unnecessary to resolve that factual controversy. As was made clear in Maroney & Maroney [2009] FamCAFC 45, in determining the “capacity” of a party to satisfy an order for interim spousal maintenance, the Court is not confined to considering only that party’s income, but rather:
Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[5]
[5] Maroney & Maroney [2009] FamCAFC 45 at [56].
Firstly, I note that the parties have agreed to reduce the mortgage repayments in respect to the former matrimonial home at Suburb E such that the father will be paying interest only repayments. That arrangement will result in the mortgage repayments being reduced from approximately $1346.50 per week,[6] to approximately $457 per week.[7] This will reduce the father’s weekly expenditure although on the basis of the father’s Financial Statement filed 9 February 2017, I acknowledge that he would still have a surplus of weekly expenditure over income.
[6] Financial Statement of the father filed 9 February 2017 at Part G, Item 23.
[7] Affidavit of the father filed 9 February 2017 at paragraph [154].
Nevertheless, the parties acknowledge that the father has the capacity to draw down on the redraw facility secured against the Suburb E property. The Orders made on 2 December 2016 enable that to occur.
I am therefore satisfied that the father has the capacity to satisfy an order for interim spousal maintenance by utilising the re-draw facility secured against the Suburb E property.
What order is reasonable having regard to section 75(2) of the Act?
Section 75(2) provides that the matters to be taken into account in considering whether to make an order for spousal maintenance are as follows:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In terms of s 75(2)(a) I note that the mother was born in 1979 and is currently 37 years of age and the father was born in 1977 and is currently 40 years of age. Both are in good physical health, although the father makes allegations in respect to the mother’s mental health.[8] I place no weight on the father’s assertions as to the state of the mother’s mental health.
[8] Affidavit of the father filed 23 November 2016 at [95] – [112] and Affidavit of the father filed 1 December 2016 at [98].
In terms of s 75(2)(b) the parties’ income, property and financial resources are set out in each of the parties’ Financial Statements filed in the proceedings. Both parties allege that their weekly expenditure exceeds their weekly income.
At Part B of the father’s Financial Statement filed 9 February 2017, the father sets out the approximate total amount of property owned by him (excluding superannuation) as $2 035 197.60 and approximate total liabilities in the sum of $306 319.49.
In her Financial Statement filed 11 November 2016, at Part B, the mother sets out the approximate total property owned by her (excluding superannuation) as $732 084.77 and approximate total liabilities in the sum of $297 500.
The father is the Director and sole shareholder of M Pty Ltd (“M Pty Ltd”) which he operates with a business partner Mr W who is the father’s nephew.[9] The mother questions the genuineness of the business relationship between the father and Mr W and, specifically, the genuineness of a loan that the father asserts he obtained from Mr W. The mother further questions whether the father has properly accounted for the income which he receives through M Pty Ltd and the extent to which it is being used to meet his personal expenditure. The mother asserts that these matters will remain in question until the father provides full and frank financial disclosure.
[9] Affidavit of the father filed 9 February 2017 at [114] and [124].
I note that the father is the sole shareholder of M Pty Ltd although, at this stage of the proceedings, it is not possible to ascertain the extent to which he may be able to borrow funds from the company or utilise a company as security to borrow funds from a financial institution.
The father alleges that the mother has failed to exercise her earning capacity by seeking to obtain appropriate gainful employment. I note that the mother has a Bachelor degree which she completed in 2005. Subsequent to obtaining this degree, the mother was employed by a number of large corporations.[10] I accept that the mother has an earning capacity, at least on a part time basis, which she has not fully exercised. In terms of s 75(2)(c), I note that the mother is the primary carer of the parties’ two children who are currently aged seven and six. This responsibility inevitably requires the mother to devote a significant amount of her time to the children’s care which undoubtedly impacts upon her earning capacity. The mother will also inevitably incur expenses in providing for the children’s physical, emotional and intellectual needs.
[10] Affidavit of the mother filed 1 December 2016 at [122].
Addressing section 60CC(3) considerations
In terms of s 60CC(3)(a) the children are currently aged seven and six. B is in Year 2 at X School and C is in Year 1. Both children appear to be progressing at school in accordance with their respective ages. Both children receive additional tutoring after school and are involved in extra-curricular activities including music and swimming. Neither child has been interviewed by a family consultant or other professional with a view to ascertaining their wishes in respect to parenting arrangements.
In terms of s 60CC(3)(b) it is not possible at this stage of the proceedings to determine the nature of the children’s relationship with each of the parents. It was not disputed, however, that the mother has not worked since the eldest child was born and I am satisfied that she has been the primary carer of the children since their birth.
It does not appear to be disputed that each child has a close and meaningful relationship with each of the parents, although the parents provide conflicting evidence as to which parent each child would prefer to spend time with. The mother asserts that the children have shown an increased interest in being close to her after they have returned from spending time with the father. This has been more so, according to the mother’s evidence, in the case of the youngest child, C.[25]
[25] Affidavit of the mother filed 8 February 2017 at [37].
In terms of 60CC(3)(c) each parent has given extensive evidence in respect to the extent to which they have taken the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
The mother has given specific evidence as to her daily routine with the children including evidence about the extent of her involvement with the children which includes making breakfast for them, on school days getting them dressed for school, packing their lunches, taking them to school and collecting them from school, and, after school and on weekends, taking the children to extra-curricular activities, or supervising tutoring and music lessons.[26]
[26] Affidavit of the mother filed 1 December 2016 at [7- 26] daily routine Mondays, [27 – 37] daily routine Tuesdays, [38- 41] daily routine Wednesdays, [42 – 43] daily routine Thursdays, [45 – 49] daily routine Friday’s, [50 – 64] - daily routine Weekends.
The father also provided detailed evidence regarding his involvement in daily activities with the children including his role in:
a)the birth of each of the children and assisting to care for them as infants;[27]
[27] Affidavit of the father filed 1 December 2016 at [4-16].
b)teaching the children to walk;[28]
[28] Affidavit of the father filed 1 December 2016 at [17 – 19].
c)teaching the children to speak;[29]
[29] Affidavit of the father filed 1 December 2016 at [20 – 22].
d)teaching the children to read;[30]
[30] Affidavit of the father filed 1 December 2016 at [23- 26].
e)toilet training the children.[31]
[31] Affidavit of the father filed 1 December 2016 at [27 – 30].
The father also provided evidence regarding his involvement with the children over the 2016/2017 Christmas school holiday period when the children spent time with him including taking them to activities and spending time with other members of the paternal family.[32]
[32] Affidavit of the father filed 9 February 2017at [14] and [21 – 65].
The mother asserts that, until the parties separated in November 2016, the father did not take the opportunity to spend a reasonable amount of time with the children and, she says, he instead preferred to attend the gym after work. The mother also asserted that the father frequently took holidays on his own without the mother or the children.[33]
[33] Affidavit of the mother filed 1 December 2016 at [87-88].
At this stage of the litigation each of the parties appears to have a particularly negative view of the other, including the other’s respective role as a parent in the children’s lives. On the basis of the evidence available before me, I am satisfied, however, that the mother has been the primary carer of the children and the father has, to the extent that it has been reasonably possible, spent time with the children consistent with his work commitments. While it may have been the case that during the parties’ relationship the father spent some time engaging in his own activities, I am satisfied that in the period subsequent to the parties’ separation, when the children are in his care, the father is devoting considerable time and attention to them.
In terms of s 60CC(3)(d) as the parties have only recently separated, I accept that it is a significant change for the children to not have their father at home each evening. Accordingly, it is appropriate to give some consideration to an approach that will, at this interim stage, minimise the impact of such change upon the children by providing an arrangement where they are able to spend a substantial amount of time with their father.
In terms of s 60CC(3)(e) the father has obtained rental accommodation in close proximity to the former matrimonial home and the children’s school and, accordingly, any practical difficulties associated with the children spending time with the father are relatively minor. Those practical difficulties that exist essentially relate to ensuring that each parent cooperates with the other and ensuring that the children have relevant items of clothing and equipment which they require when they are in the other parent’s care and that the parents inform each other of school work or activities that the children may have.
In terms of s 60CC(3)(f) I am satisfied that the mother, who lives with the children at the former matrimonial home and is appropriately providing for the children’s physical needs. In that respect I refer to the detailed evidence provided by the mother setting out her daily routine in providing for those needs.
As noted, the father has suitable rental accommodation and, in my view, I am satisfied that the father has demonstrated that he is able to provide for the children’s physical needs. In that respect the father says that he has obtained a second set of school uniforms for the children for when they are in his care and is ensuring that he is informed of the children’s school activities by logging into the school’s intranet to obtain any relevant information regarding the children’s homework and schooling. [34]
[34] Affidavit of the father filed 9 February 2017 at [92].
Again, at this stage of the proceedings, neither party is prepared to be particularly generous to the other in recognising their respective parenting capacities to provide for the children’s physical, emotional and intellectual needs. The mother asserts that the children return from spending time with the father in an emotionally fragile state with the youngest child, in particular, wishing to be close to her.[35]
[35] Affidavit of the mother filed 8 February 2017at [37].
The father asserts that the mother has anger management and mental health issues which, he says, adversely impacts upon the children including causing the oldest child to visibly shake when the mother loses her temper.[36]
[36] Affidavit of the father filed on 23 November 2016 at [34].
I note, however, that subsequent to the commencement of these proceedings, the children have continued to live with the mother and spend substantial and significant time with the father. The Orders made on 2 December 2016 provided for the children to spend time with the father, until the school holidays, every second Saturday from 2.30 pm to 8.00 pm, every second Sunday from 9.00 am to 7.00 pm, and every Wednesday evening from 5.00 pm to 8.00 pm. However, the father deposed in his affidavit filed 9 February 2017 that the time the children spent with him, in the period subsequent to 2 December 2016 until the commencement of the school holidays in December 2016, was every second Wednesday from after school until Thursday morning before school, as well as, in the alternate weeks, from after school on Friday until Monday morning before school. During the school holidays the children spent time with the father from 5.00 pm on Friday until 8.00 am Monday, and then in the alternate weeks from 5.00 pm Monday until 8.00 am on Thursday.
In terms of s 60CC(3)(g) I note the children are only 7 and 6 years of age and, in the absence of the family consultant’s Memorandum, or other expert with experience in respect to parenting matters, I do not regard this consideration as being relevant at this stage of the proceedings.
Section 60CC(3)(h) is not a relevant consideration in this matter.
In terms of s 60CC(3)(i) the mother raises concerns about the father’s attitude towards the children and the responsibilities of parenthood. In this context the mother raises the following concerns:
·That the father did not provide a password enabling her to connect to the internet to assist the children with their homework;[37]
[37] Affidavit of the mother filed 11 November 2016at [32].
·That various friends and relatives have slept over at the father’s rental accommodation when the children have been staying with him, which she says, has caused disruption in the children’s routine and has disrupted the father’s attention on the children’s well-being;[38]
[38] Affidavit of the mother filed 8 February 2017 [25] – [28] and [33].
·That the father permitted the child, B, to shower with another female child relative of a similar age;[39]
[39] Affidavit of the mother filed 8 February 2017at [30].
·The father failed to properly attend to B when she had painful ears;[40]
[40] Affidavit of the mother filed 8 February 2017at [28].
·The father has failed to ensure that the children sleep in their own beds and rather sleep with the father in his bed when spending overnight time with him;[41]
[41] Affidavit of the mother filed 8 February 2017at [34].
·The father has sought to denigrate the mother by remarks she says he has made to the children including:
§The mother was responsible for burning B’s hand.[42]
[42] Affidavit of the mother filed 8 February 2017at [35].
§That it is inappropriate for the mother’s relatives to wear a headscarf.[43]
[43] Affidavit of the mother filed 8 February 2017at [36].
The father disputes the mother’s assertions in respect to his attitude towards the responsibilities of parenthood. In that respect the father’s evidence was that:
·He did not fail to give the mother the computer access codes but that the lack of computer access had been the result of problem with the network and that he had downloaded an excessive amount of material on YouTube;[44]
[44] Affidavit of the father filed 23 November 2016 at [35] – [38].
·He had relatives staying with him and the children in the period from 21 January 2017 until 26 January 2017 and that the children enjoyed their time with the other children who were staying with them;[45]
[45] Affidavit of the father filed 9 February 2017 at [59].
·He did not permit his daughter to shower with another child and acknowledges that would be inappropriate;[46]
[46] Affidavit of the father filed 9 February 2017 at [104] -[105].
·He took B to the doctor when she had complained about a sore ear and subsequently made enquiries of the doctor;[47]
[47] Affidavit of the father filed 9 February 2017 at [48] - [55].
·It was common for the children to sleep with one or other of the parents when the parents were living together at the former matrimonial home and that has happened on occasions at his rental accommodation, however he is attempting to encourage the children to sleep in their own bed;[48]
[48] Affidavit of the father filed 9 February 2017 at paragraph [107] - [109], [111].
·He has not denigrated the mother in front of the children and, rather, has explained that while there are disagreements between them that both parents love the children.[49]
[49] Affidavit of the father filed 1 December 2016 at [52].
·The father contrasts the fact that he made a special effort to ensure that the children spent time with their mother on Christmas with the fact that she did not reciprocate that approach on New Year’s Day.[50] The father also contends that the mother’s refusal to allow the children to have additional time with him on the day of the paternal aunt’s wedding was unreasonable in circumstances where the children each had an official role in the wedding party.[51]
[50] Affidavit of the father filed 9 February 2017 at [28] and [38].
[51] Affidavit of the father filed 9 February 2017 at [61] – [64].
The father further asserts that the mother has been irresponsible in demeaning his apartment in front of the children referring to it as the “hotel” and accusing the father of taking a lounge from the former matrimonial home without permission.[52]
[52] Affidavit of the father filed 9 February 2017 at [79] – [80].
In terms of s 60CC(3)(j) I have referred to the parties’ respective allegations of family violence. It is not possible, in these interim proceedings, to make a determination as to whether family violence has occurred, the extent to which it has occurred, or the circumstances in which it has occurred. As noted earlier in these reasons, the Full Court recently said in Edgar & Strofield [2016] FamCAFC 93 at [15] that:
…the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing…
I note that, significantly, neither parent alleges that the other has engaged in acts of physical violence towards the children.
I am satisfied, however, that the children have been exposed to the parental conflict and some very unpleasant interactions between the parties which may constitute family violence as defined in the Act. Since separation, the greatest likelihood of that conflict between the parties occurring is in circumstances where the parents meet face to face, such as at changeover.
It is not alleged that there is a relevant family violence order that is applicable in these proceedings as contemplated by s 60CC(3)(k).
These are interim proceedings and, accordingly, s 60CC(3)(l) does not apply.
Evaluation of section 60CC considerations
One of the primary considerations is, as referred to in s 60CC(2)(a), “the benefit of the child having a meaningful relationship with both of the child’s parents.” As noted, that consideration needs to be balanced against the need to protect children “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” as set out in s 60CC(2)(b). I am satisfied that the greatest risk of the children being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is when the parents come into contact at changeover.
In contemplating whether changeover should occur at the children’s school, which would effectively mitigate against the parents coming into contact with one another, I have had regard to the respective ages of the children and the concerns expressed by the mother that the children should sleep in the former matrimonial home on the evenings before each school day.
I accept, however, on the evidence available to me, that the father has the capacity to care for the children at those times when they are in his care and specifically he has the ability to attend to tasks necessary to prepare them for school, to take them to school and also to collect them from school in the afternoon.
It is inevitable that there will be some teething problems with the father becoming familiar with carrying out that role including making appropriate enquiries regarding any school work that the children are required to undertake of an evening. I note, in that respect, the father has made enquiries regarding access to the school’s intranet to enable him to obtain information regarding the children’s school work and activities.
I have also had regard to the mother’s evidence that the children have an altered emotional state upon returning to her care after having spent time with the father. In that context, it has been contended that the children should have the emotional support of their mother on those evenings before they attend school.
At this stage of the proceedings I am not in a position to determine the extent to which the children are affected by moving from the care of one parent to the other. Specifically, I am unable to determine the extent to whether the children are emotionally affected as a result of any potential conflict that occurs between the parents at changeover.
In my view, however, the risk of the children being exposed to parental conflict at changeover is such that it outweighs any benefit that the children may have in being in the mother’s care at the former matrimonial home on those evenings prior to the children attending school.
It is not, in these interim proceedings and given the current level of conflict between the parents, appropriate for the presumption of equal shared parental responsibility to apply. However, it is nonetheless within the Court’s discretion to make an order for the children to spend substantial and significant time with the parent with whom they do not live.
In that respect I note that s 65DAA(3) defines substantial and significant as:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It is in the best interests of the children to maintain a meaningful relationship with both parents. In the circumstances, that is more likely to be achieved if the children have the opportunity to spend time with both of their parents on the weekend and during the week to allow both parents to be involved in the children’s daily routines including, most significantly:
·preparing the children for and taking the children to school;
·collecting the children from school;
·taking the children to their extra-curricular activities; and
·assisting the children with their homework.
Accordingly, during the school term, I propose to make orders in terms of the arrangements that occurred between the parties in the period following 2 December 2016 until the commencement of the 2016/2017 Christmas school holidays. That is, the children will live with the mother and spend time with the father, during school term, four nights a fortnight on alternate weeks, in Week One from after school on Wednesday to before school on Thursday; and in Week Two from after school on Friday to before school on Monday, with changeover to occur at the children’s school. During school holidays, the children will spend time with the father on alternate weeks, in Week One from 5.00 pm on Friday to 8.00 am on Monday; and in Week Two from 5.00 pm on Monday to 8.00 am on Thursday.
There were no submissions made by either party in relation to changeover when the children are not attending school. Given the history of conflict between the parties and the concerns raised by the Court of exposing the children to this conflict at changeover, the Court proposes to make an order that changeover on non-school days is to occur at a public place as agreed between the parties at a location which is equidistant between the parties’ residences, and failing agreement, at the Suburb I McDonalds.
I note that this matter has been listed for further interim hearing on the 18 April 2017. These orders can be reviewed after the parties and the Court have the benefit of the family consultant’s Memorandum.
Application for interim property orders
As noted, the father seeks an order for interim partial property distribution whereby each party would receive an amount of $120 000 which would be drawn against the existing equity that the parties have in the matrimonial property.
There are four stages to the consideration of an application for interim property orders:
i)In Medlow & Medlow (2016) FLC 93-692 at 81,088 the Full Court confirmed that the starting point in respect to any property application, including an application for interim property orders, is “the identification of the parties’ property and of their interests in it”.
ii)The second stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for interim property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice.[53]
[53] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,645 [132].
iii)The third stage is the “substantive step” where the provisions of s 79 must be considered and applied but with limitations, given that it is not the final hearing.[54]
[54] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,645 [135].
iv)The fourth stage is determining whether, in the circumstances of the case, it is just and equitable to make a property settlement order.[55]
[55] Stanford v Stanford (2012) 247 CLR 108 at 120 [37].
It should be noted, that a consideration as to whether there should be an order for the interim distribution of property is not to be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them.”[56]
[56] Stanford v Stanford (2012) 247 CLR 108 at 121 [40], and Medlow & Medlow (2016) FLC 93-692 at 81,089.
In circumstances where a party seeks interim property orders, the Full Court in Medlow & Medlow (supra) said at 81,090:
86. The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on [the respondent] to adduce such evidence.
In this case, it is agreed that the matrimonial property pool is in the vicinity of $2 000 000. In those circumstances, I am satisfied that the potential matrimonial property is such that the father’s application for a partial property distribution could comfortably be accommodated within the parameters of any likely orders adjusting the parties’ property interests at final hearing.
In that context, the Full Court in Medlow & Medlow (supra) referred to Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,646, and the authorities referred to therein, in confirming that an interim order for the distribution of property must be “amenable to adjustment on a final hearing”. On the facts of this case, I am satisfied that such an adjustment could occur in terms of monetary value. However, it is to be noted that the mother seeks orders at final hearing that she retain the former matrimonial home. Without determining the merits of the mother’s application in that respect, I acknowledge that the interim property orders as sought by the father, may have the effect of reducing the matrimonial property pool such that the former matrimonial home may need to be sold in order to accommodate any orders for an adjustment of property between the parties at final hearing.
In that respect, I note that the very nature of an interim hearing is such that the Court is not in a position to make determinations as to the competing contentions of the parties and should therefore take a conservative approach. This includes determining whether there is likely to be sufficient funds available at final hearing to accommodate an application for an interim distribution of property.
Further, the applicant (which is the father in this case) is required to show more “than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party”.[57]
[57] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,646 [139].
Consideration of a party’s application for an interim property order should also be conducted with an appreciation that “as a generality, the interests of the parties and the Court are better served by there being one final hearing of section 79 proceedings.”[58]
[58] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,656 [223] citing Harris & Harris (1993) FLC 92-378.
In evaluating the competing contentions of the parties, it is necessary to have regard to the fact that, in family law proceedings one party may have the predominance of resources.[59] In this matter, the respective Financial Statements of the parties clearly demonstrates that the father has the predominance of resources, including an ongoing source of funds available to him through his business interests.
[59] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,643[128] quoting Wenz v Archer (2008) 40 Fam LR 212.
The difficulty with the father’s application, at this stage of the proceedings, is that there is insufficient evidence before the Court to determine the nature of his business assets because the father is yet to provide full and frank financial disclosure. In that context, I note the father’s explanation for his inadequate disclosure is that his accountant has been overseas for a considerable amount of time since the proceedings were commenced by the mother.
Nevertheless, as the applicant for orders for interim property distribution, the father carries the onus of satisfying the Court that it is just and equitable in the circumstances for there to be such an order at this interim stage of the proceedings. In circumstances where, at this stage, there has been inadequate financial disclosure by the father, I am not satisfied that it would be just and equitable for the Court to make the interim property orders he seeks.
As noted, the mother says that such orders would not be just and equitable because an order for an interim property distribution at this stage of the proceedings would increase the likelihood of the matrimonial property having to be sold either prior to, or as part of, orders made at final hearing. As noted, the mother seeks to retain the former matrimonial home on a final basis.
I am not in a position to determine the parties’ competing contentions without having adequate evidence regarding the father’s current financial circumstances, including those of his business. Accordingly I will dismiss the father’s application for orders for an interim distribution of property.
Further disclosure
As noted, each of the parties has sought orders in respect to further financial disclosure.
Rule 13.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Duty of disclosure--documents
The duty of disclosure applies to each document that:
(a) is or has been in the possession, or under the control, of the party disclosing the document; and
(b) is relevant to an issue in the case.
(Emphasis added) Rule 13.22 of the Rules empower a party to apply for an order for disclosure. It relevantly provides:
Application for order for disclosure
(1) A party may seek an order that:
(a) another party comply with a request for a list of documents in accordance with rule 13.20;
(b) another party disclose a specified document, or class of documents, by providing to the other party a copy of the document, or each document in the class, for inspection by the other party;
(c) another party produce a document for inspection;
(d) a party file an affidavit stating:
(i) that a specified document, or class of documents, does not exist or has never existed; or
(ii) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or
(e) the party be partly or fully relieved of the duty of disclosure.
(2) A party making an application under subrule (1) must satisfy the court that the order is necessary for disposing of the case or an issue or reducing costs.
Note 1: Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03).
Note 2: An application under this Chapter is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). The court may allow an oral application at the conciliation conference or another court event.
(3) In making an order under subrule (1), the court may consider:
(a) whether the disclosure sought is relevant to an issue in dispute;
(b) the relative importance of the issue to which the document or class of documents relates;
(c) the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and
(d) the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.
(4) If the disclosure of a document is necessary for the purpose of resolving a case at the conciliation conference, a party (the requesting party ) may, at the first court event, seek an order that another party:
(a) provide a copy of the document to the requesting party; or
(b) produce the document to the requesting party for inspection and copying.
(5) The court may only make an order under subrule (4) in exceptional circumstances.
(6) If a party objects to the production of a document for inspection or copying, the court may inspect the document to decide the objection.
Sub-rule 13.22(2) is clear that the onus of satisfying the Court that the order “…is necessary for disposing of the case or an issue or reducing costs” rests on the party making the application. In this matter, both parties have sought orders for disclosure from the other.
There is a question as to whether a document or documents being “relevant” for the purpose of rule 13.07 is a reference to the document being “directly relevant” to an issue in the case.[60]
[60] See Strahan & Strahan (Interim Financial Orders) [2010] FamCA 423.
The Explanatory Statement, which accompanied the introduction of the Rules,[61] states:
[61] Family Law Rules 2004, Explanatory Statement, Statutory Rules 2003 No. 375.
[Rule 13.07] imposes a duty on a party to disclosure documents in the party’s possession or control that are “directly relevant” to an issue. …
The requirement to disclose “directly relevant” documents will introduce a higher standard of assessment in the sifting and examination of a client’s documents. This will oblige parties and lawyers to focus attention at an early stage upon the real issues in dispute and the documentary evidence that goes directly to those issues.
Notwithstanding the apparent strictness of the rule, the focus must really be on relevance at a particular time of the documents or the information being pursued. The same principle of relevance applies in respect of the disclosure and discovery of documents as it does in relation to the pursuit of documents by a party of non-parties under subpoena.
Despite the reference in the Explanatory Statement to the need for a document or class of documents being “directly” relevant, I am reluctant to adopt a construction of the Rules that imports an additional qualification to the concept of relevance when the word “directly” does not appear in the wording of rule 13.07.
I agree with the suggestion of Cronin J in K & K [2008] FamCA 957, wherein his Honour stated that a less strict approach than the “direct relevance” test should be applied in the preliminary stages of disclosure as between the parties when the issues in the proceedings are yet to fully crystallise.[62] His Honour espoused that “the determining factor ought to be that there is evidence of some plausible connection to an issue that the court has to decide.” [63]
[62] K & K [2008] FamCA 957 at [19].
[63] K & K [2008] FamCA 957 at [19].
Nevertheless, the Court has a limited ability to consider whether the parties have complied with their obligations of disclosure pursuant to the Act and the Rules. They are important obligations and, in many ways, foundational to the effective operation of the Court. It is a continuing obligation as relevant documents come into existence throughout the litigation. The issue of disclosure is one where the Court expects the parties’ legal practitioners to play a constructive role and provide the appropriate advice to their clients in the context of the solicitors upholding their duties as officers of the Court.
At this stage of the proceedings, given the nature of the issues in dispute, it is simply not possible for the Court to examine each and every document that has been sought and/or produced by the parties. Those issues involve competing contentions as to the parties’ respective property interests, the father’s business, the father’s possible entitlement to an inheritance, and the parties’ contentions regarding loans which they each say that they have acquired.
I also note that there is a dispute between the parties as to whether certain documents exist. Documents in that category include documents that are to be prepared for the financial year ended 30 June 2016.
I further note that both parties assert that they have either already, or intend to, comply with their obligations of disclosure. With respect, each of the party’s applications for disclosure are premature in circumstances where they have not yet complied with their respective obligations of disclosure under the Rules including, pursuant to rule 13.22 making a reasonable and genuine attempt to settle the issue.
To assist the parties to come to a resolution on this issue I will make orders that require disclosure in accordance with the Rules. Those orders will include a mechanism for the parties to seek further redress if the matter cannot be resolved.
In making those orders, I note that the obligation of disclosure is ongoing. It should not be assumed by the parties that either party is excused from disclosing documents which are in his or her possession or control, that may come into existence after the date of these orders.
I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 2 March 2017.
Associate:
Date: 2 March 2017
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