Vaughan & Vaughan (No 2)
[2024] FedCFamC2F 371
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vaughan & Vaughan (No 2) [2024] FedCFamC2F 371
File number(s): ADC 5154 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Five children aged between 15 and 11 years – Three of the children have special needs –Where the wife seeks to be solely responsible for the engagement of counselling, or therapeutic or psychological treatment for the children – Where the wife seeks injunctions restraining the father from contacting the children’s and the wife’s school carers and medical providers – Where the husband opposes the wife’s application – Consideration of Child Impact Report – Future management.
FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a partial property settlement in order to pay her legal costs – Where the wife seeks for two properties to be sold forthwith – Where the husband opposes the wife’s application but consents to the eventual sale of one of the properties – Issues relating to disclosure – Future management.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 68B, 79, 80, 114. Cases cited: Bennett & Bennett [2001] FamCA 462
Candle & Falkner [2021] FedCFamC1A 102
NHC & RCH [2004] FamCA 633
EJK & TSL [2006] FamCA 730
Felice & Felice [2011] FamCA 162
Flanagan & Handcock [2000] FamCA 150
Gabel & Yardley [2008] FamCAFC 162
Goode & Goode (2006) 36 Fam LR 422
Hedlund & Hedland [2021] FedCFamC1A 84
Medlow & Medlow (2016) FLC 93-692
Sresbodan & Stresbodan & Ors [2013] FamCA 480
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Trevi & Trevi [2018] FamCAFC 173
Wenz & Archer (2008) 40 Fam LR 212
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 7 March 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Camatta Lempens The Respondent: Appearing self-represented Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5154 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VAUGHAN
Applicant
AND: MR VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 MARCH 2024
UPON NOTING THAT
A.The Court directs that all issues as to valuation any outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
i.The total costs and disbursements incurred by the party in the proceeding to date;
ii.An estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
iii.An estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
C.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the Conference.
THE COURT ORDERS BY CONSENT THAT:
1.The Wife provide within fourteen (14) days to the Husband, a list of her personal items and effects that she maintains are in the property situate at B Street, Suburb C in the State of South Australia (‘the Suburb C property’) and in the event the Husband is able to locate such personal items and effects and agrees that they belong to the Wife, then together with any further category of items belonging to the children, the Husband shall within fourteen (14) days thereafter provide such items to the Wife via an intermediary to be agreed between the parties in writing.
THE COURT ORDERS THAT:
Property
2.No later than 26 June 2024, the Husband do pay by way of partial property settlement to the Trust Account of Camatta Lempens for and on behalf of the Wife the sum of FIFTY-THOUSAND DOLLARS AND ZERO CENTS ($50,000).
3.In the event that the Husband fails to comply with paragraph 2 herein, the parties do forthwith all such things to place the property situate at B Street, Suburb C in the State of South Australia (‘the said Suburb C property’) on the market for sale by such selling agent as the parties agree in writing or failing agreement, by such selling agent nominated by the Secretary of the Real Estate Institute of South Australia.
4.The parties do follow all reasonable advice provided by the said selling agent including but not limited to the mode of sale, the reserve price (if any) and any repairs or maintenance required.
5.Upon the sale of the said Suburb C property, the proceeds of sale shall be disbursed as follows:
(a)Payment of all sales costs and commissions;
(b)To discharge the mortgage secured over the said Suburb C property;
(c)The payment of FIFTY-THOUSAND DOLLARS AND ZERO CENTS ($50,000) to the Wife in accordance with paragraph 2 herein; and
(d)The balance to be held in the Trust Account of Camatta Lempens for and on behalf of the parties pending further order of the Court or agreement between the parties in writing.
6.In the event that either party fails to execute or sign any document necessary to implement the terms of the within orders, then upon proof by affidavit of such refusal or neglect, a Judicial Registrar of this Honourable Court is hereby authorised pursuant to section 106B of the Family Law Act 1975 (Cth) to sign any such documents necessary to give effect to the terms of the within orders.
7.Within twenty-eight (28) days of the date hereof, each of the parties do file and serve an Affidavit of Documents including but not limited to the documents referred to in Rule 6.06(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
8.No later than 1 June 2024, the parties do jointly instruct a licensed real estate valuer to value the property situate at Lots 1 and 2, D Street, Town E in the State of South Australia (‘the Town E blocks’) with the cost of such valuation to be shared equally between the parties.
9.In the event that the parties are unable to agree the identity of the said licensed valuer pursuant to paragraph 8 herein by 1 May 2024, then the Secretary of the Real Estate Institute of Australia shall be requested to nominate such a valuer to undertake the valuation in paragraph 8 herein and the parties shall co-operate with all requests made by the said valuer to facilitate same.
10.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Senior Judicial Registrar on 24 July 2024 at 9:00am, such Conciliation Conference to take place in the Adelaide Registry of the Federal Circuit and Family Court of Australia on a face-to-face basis in accordance with Court protocols.
11.The parties and any lawyers on the record shall follow any directions from the Registrar convening the Conference in relation to attendance in person.
12.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Wife must pay the Conciliation Conference fee no less than fourteen (14) days prior to the Conference and the Husband do reimburse the Wife with one half of such fee within seven (7) days of being provided with evidence of payment of same.
13.Not later than 17 July 2024, each party must:
(a)Ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)Ensure that any private expert report that is relevant to the proceedings has been filed;
(c)Provide to the Court (by email to the Senior Judicial Registrar and to the other party a single collated bundle of documents comprising:
(i)A Confidential Outline of Case (Dispute Resolution)
(ii)A detailed minute of Orders Sought;
(iii)Details of any previous or current family violence orders;
(iv)A copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)Particulars of any financial resource;
(vi)A valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)Statements for, and where applicable, valuations of any superannuation interest; and
(viii)Written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
14.No later than 5 July 2024, the Husband do all such things necessary to prepare and finalise the financial statements for the Self-Managed Superannuation Fund (‘SMSF’) for the financial years ending 2019, 2020, 2021, 2022 and 2023.
15.The Husband do meet the costs associated with the preparation of the said SMSF financial statements including the cost of any auditor to be agreed between the parties in writing and with the Wife to pay one half of the said costs by adjustment at final property settlement.
16.The Husband keep the Wife’s solicitors informed of the quantum of costs payable by him arising from the Orders made by a Court in South Australia in relation to the case of ‘[…]’ delivered by a judge in early 2024.
Injunctions
17.Without admission, the parties be restrained by way of injunction from approaching or entering or coming within two hundred (200) meters of the home of the other and from encouraging any other person to do so SAVE AND EXCEPT to comply with any order of the Court or agreed between the parties in writing.
Parenting
18.The Independent Children’s Lawyer has leave to provide a copy of the Child Impact Report dated 4 August 2023 to Dr F, general medical practitioner and any paediatrician or psychologist treating any or all of the said children.
19.The Independent Children’s Lawyer do within fourteen (14) days of the date hereof do all such things to obtain a recommendation from Dr F as to the name of a paediatrician to consult with the children W, X, Y and Z (or such of the children as Dr F considers in need of paediatric assistance) and do thereafter advise the parties in writing of the paediatrician so nominated.
20.The Independent Children’s Lawyer shall write to the said paediatrician at first instance advising of the terms of these orders and shall provide a copy of such correspondence to each of the parties.
21.To give effect to paragraph 10 of the Orders made 21 December 2023, the Wife do:
(a)Facilitate the said children’s attendance upon the paediatrician nominated by the said Dr F and do ensure that the said children attend all such appointments as requested by the said paediatrician;
(b)All such things to ensure that the child X do attend L Organisation and the children Y and Z do attend G Organisation; and
(c)Enrol the children W, X, Y and Z in the H Program at J Centre and do ensure that the said children do complete all sessions as directed by J Centre.
22.The Husband is at liberty to attend upon the said paediatrician for the purpose of providing his input in relation to the said children’s medical needs and obtaining updates as to the said children’s treatment on condition that the Husband shall be solely responsible for his individual appointments.
23.The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the said paediatrician or attending upon the offices of the said paediatrician other than to comply with the orders made herein.
24.The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the children’s psychologists or attending upon the offices of the said psychologists other than to comply with the orders made herein.
25.This order serves as an authority enabling the said paediatrician to communicate with and obtain information from each of the parties and the Independent Children’s Lawyer at his or her discretion.
26.The Husband is at liberty to obtain information from the said children’s psychologists referred to in paragraph 21(b) herein and this order serves as an authority permitting him to do so provided that the Husband shall be solely responsible for the costs associated with any appointments or communications.
27.The Independent Children’s Lawyer shall obtain, file and serve a Report from each of the children’s treating psychologists prior to the Family Dispute Resolution Conference referred to in paragraph 29 herein.
28.The Wife shall do all such things to ensure that the child W has in his possession his iPad (which is used by W to communicate) for each period of time spending with the Husband at the Children’s Contact Service and each medical appointment attended by the child W and for any appointment with a Family Consultant associated with these proceedings.
29.Upon the said children’s final session with the Husband pursuant to paragraph 1 of the order made on 21 December 2023 and upon the Independent Children’s Lawyer complying with paragraph 3 of the order made on 21 December 2023, the parties and the Independent Children’s Lawyer do attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on a date and time to be organised by the Independent Children’s Lawyer for the purposes of discussing future parenting orders for the children.
Procedural
30.No later than fourteen (14) days prior to the adjourned date for hearing, the parties do file and serve an affidavit addressing a proposed Trial Plan including but not limited to:
(a)Any witness to be called on behalf of each party;
(b)A table of assets and liabilities including the value of each item;
(c)Estimated length of Trial;
(d)Any other interlocutory matters that will need to be considered prior to the Trial listing; and
(e)Whether or not section 102NA of the Family Law Act 1975 (Cth) applies.
31.The Wife’s Application in a Proceeding filed 23 October 2023 and the Husband’s Response to an Application in a Proceeding filed 17 January 2024 are hereby dismissed.
32.Proceedings be adjourned to 7 August 2024 at 9:30am for directions and consideration of a Trial listing or transfer of these proceedings to Division 1 of the Federal Circuit and Family Court of Australia, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings come before the Court upon the filing of an Application in a Proceeding on 23 October 2023 by the Applicant Wife, Ms Vaughan ('the wife'), seeking interim parenting and property orders. The Respondent Husband, Mr Vaughan ('the husband') filed a Response to an Application in a Proceeding on 17 January 2024 seeking orders in his own right.
The parties have five children together, namely W, born in 2008; V, born in 2008, X, born in 2010; Y, born in 2012; and Z born in 2012 (together ‘the children’). W and V are currently 15 years of age, X is currently 14 years of age, and Z and Y are currently 11 years of age. Some of the children have significant special needs.
The parties have been engaged in litigation since 11 November 2022. In the 16 months since the proceedings commenced, the parties are only marginally more advanced than they were after the proceedings commenced.
Despite being in protracted litigation for 15 months, the parties are yet to attend a Conciliation Conference to try to resolve their property dispute. The husband is on the cusp of commencing time with four of the subject children at a Children’s Contact Service.
It is the Courts apprehension that these proceedings are having a deleterious impact on the parties’ finances and their co-parenting relationship which could be described as non-existent. The Court therefore proposes to dismiss the current interim applications and to move the matter towards a final hearing to resolve the dispute as soon as possible.
BACKGROUND
The wife is currently 51 years old and is employed full time as a health care worker. Her personal income is $2,111 gross per week.
The husband is currently 58 years old and is self-employed as a professional. His personal income is $1,080 gross per week.
The parties met in 2006 and commenced residing together later in 2006. The parties married in 2006.
The parties have different accounts of their relationship and separation. Separation occurred somewhere between mid-2021 and late 2022. The parties are not yet divorced.
The parties have five children together. The circumstances of the children at the date of hearing are as follows:
(1)V and W are twins and now aged 15 years respectively. It is an agreed position that V is living independently from each of her parents. She attends K School and in is Year 10. W also attends K School. W has a disability. He requires the use of an iPad to communicate. W receives National Disability Insurance Scheme (‘NDIS’) funding and attends upon a speech therapist and has the support of a carer each day after school. The wife had arranged for W to attend at ‘L Organisation’ pursuant to the Court Orders. W is unable to continue at L Organisation due to his disability. The wife is currently looking at alternative options;
(2)X is now aged 13 years. X has a medical condition and has been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’). X takes medications for both of these conditions. X also attends K School. The wife, to date, has arranged for X to attend at ‘L Organisation’ pursuant to the Court Orders. X had an initial appointment at L Organisation in early 2024. X has not been able to access Dr M, paediatrician, for reasons to be outlined herein; and
(3)Z and Y are twins and are aged nearly 12 years respectively. Z and Y both attend N School. Z has been diagnosed with Autism and receives NDIS funding. Z attends upon a speech therapist and has a student support officer at school. Y was reported by her mother as not having any concerning behaviours at the time of the Child Impact Report interviews. The wife has made enquiries with ‘G Organisation’ for Z and Y.
All of the children continue to consult with Dr F, general medical practitioner.
The wife and the children permanently left the former matrimonial home in Suburb C in South Australia in late 2022.
The wife re-partnered with Mr O in late 2022. They live together in rented accommodation with all of the children except for V.
The husband has not re-partnered and continues to reside in the former matrimonial home.
The children have not spent substantial time with the husband since about late 2022. Pursuant to Orders made by the Court on 21 December 2023, the children will shortly commence supervised time with their father at a Children’s Contact Service.
Both parents allege significant family violence perpetrated by the other parent in the presence of the children during the relationship and post-separation. The wife alleges coercive and controlling behaviour and has produced records of communication between the parties in support. The husband has allegedly perpetrated physical assaults upon X. There are no Intervention Orders between the husband and the wife nor any of the children.
There is a history of conflict between the husband and Mr O, and the husband alleges family violence perpetrated by Mr O. The husband is a protected person pursuant to an Intervention Order issued against Mr O in late 2023.
The parties do not agree the final parenting orders for any of the children.
The parties are also in dispute as to the division of their marital assets. The major assets are two parcels of real estate. The first is the former matrimonial home situate at B Street, Suburb C in the State of South Australia (‘the Suburb C property’) which was purchased by the husband in his sole name in 1995. The Suburb C property is subject to a mortgage in the husband’s sole name with a balance of about $210,000. The parties agree that the Suburb C property is to be sold but they cannot agree when that is to occur. The wife wants it sold “before early 2024” and the husband proposes that it be “auctioned in late 2024.” The second are two blocks of land situate at Lots 1 and 2, D Street, Town E in the State of South Australia (‘the Town E blocks’) which are freehold and registered in the joint names of the parties and the self-managed Superannuation Fund (‘SMSF’). The wife seeks that the Town E blocks be sold as soon as possible. The husband seeks to retain the Town E blocks in his own right and to pay the wife a settlement sum.
PROCEDURAL HISTORY
The wife filed an Application for Divorce in late 2022, which was discontinued in early 2023.
The wife filed an Initiating Application on 16 February 2023 seeking orders for parenting and property settlement. The wife filed an Amended Initiating Application on 27 March 2023.
On 29 March 2023, a Judicial Registrar ordered that the husband file answering documents and mutual financial disclosure. The proceedings were adjourned to consider on the next occasion an interim parenting hearing and the allocation of a Conciliation Conference.
On 26 April 2023, a Judicial Registrar made an Order pursuant to section 68L(2) of the Act appointing an Independent Children’s Lawyer for the children.
On 5 May 2023, Orders were made allocating the proceeding to the Evatt List. On 5 May 2023, a Child Impact Report was ordered.[1]
[1] Orders of a Judicial Registrar made on 5 May 2023, Orders 5 to 11.
On 8 May 2023, the husband filed a Response to Initiating Application seeking interim and final parenting and property orders.
In compliance with the 5 May 2023, Orders in relation to the preparation of a Child Impact Report, the parties attended separate remote interviews by video on 24 July 2023 and interviews were held with the Children in person on 25 July 2023. The children attended with the wife and her support person. The Child Impact Report, dated 4 August 2023 (‘the Report’) was prepared by Court Child Expert Ms P (‘Child Court Expert’).
On 16 August 2023, the Court made an order inviting Child Protection to intervene in the proceedings pursuant to section 91B.[2] Child Protection declined the invitation by way of a Report dated 21 August 2023.[3]
[2] Orders of a Senior Judicial Registrar made on 16 August 2023, Orders 7 to 9.
[3] See the section 91B Report produced by the Department for Child Protection South Australia dated 21 August 2023.
On 22 August 2023, the matter was listed for Interim Defending Hearing before a Senior Judicial Registrar. Judgment was reserved and later delivered on 29 August 2023. The Senior Judicial Registrar declined to make any orders for time spending between the husband and the children.
On 19 September 2023, the husband filed an Application for Review in relation to the Orders made on 29 August 2023 by the Senior Judicial Registrar. The Amended Review Application was opposed by the wife. Argument proceeded before Her Honour Judge Kirton on 8 November 2023.
On 21 December 2023, the Court, on review, ordered that the children (excluding the child V) spend supervised time with the husband at a Children’s Contact Service and for a report to be obtained. Further orders were made for the parties to each obtain a psychiatric assessment as arranged by the Independent Children’s Lawyer. The husband was ordered to undertake behavioural change therapy with a certified behavioural change therapist. Both parties were ordered to complete a parenting course called ‘Bringing Up Great Kids’.
DOCUMENTS RELIED UPON
The wife relied upon the following documents:
(1)Notice of Child Abuse, Family Violence and Risk filed by the wife on 16 February 2023;
(2)Amended Application for Final Orders filed by the wife on 27 March 2023;
(3)Affidavit of the wife filed 14 June 2023;
(4)Affidavit of Ms Q (annexing DCP material) filed 21 July 2023;
(5)Affidavit of Ms Q (annexing SAPOL material) filed 26 July 2023;
(6)Child Impact Report prepared by Court Child Expert Ms P dated 4 August 2023;
(7)Application in a Proceeding filed by the wife on 23 October 2023;
(8)Affidavit of Ms Simson filed 23 October 2023;
(9)Affidavit of the wife filed 17 November 2023;
(10)Affidavit of the wife filed 29 February 2024 as to property issues;
(11)Affidavit of the wife filed 29 February 2024 as to parenting issues; and
(12)Financial Statement of the wife filed 17 November 2023.
The husband relied upon the following documents:
(1)Affidavit of the husband filed 5 November 2023;
(2)Response to Application in a Proceeding filed by the husband on 17 January 2024;
(3)Affidavit of the husband filed 17 January 2024;
(4)Financial Questionnaire filed by the husband on 15 January 2024;
(5)Financial Questionnaire filed by the wife on 16 February 2023;
(6)Affidavit of Ms Q (annexing SAPOL material) filed 26 July 2023;
(7)Financial Questionnaire filed by the wife on 17 November 2023;
(8)Application in a Proceeding filed by the wife on 23 October 2023;
(9)Affidavit of the wife filed 13 June 2023;
(10)Affidavit of the wife filed 23 October 2023;
(11)Affidavit of the wife filed 17 November 2023;
(12)Child Impact Report prepared by Court Child Expert Ms P dated 4 August 2023; and
(13)Costs Notice filed by the wife on 16 August 2023;
(14)Affidavit of the husband filed 2 August 2023;
(15)Affidavit of the husband filed 30 January 2024;
(16)The husband also provided a document which set out Lists of Authority and relevant legislative provisions; and
(17)Cost Notice filed by the wife on 6 March 2024.
The husband tendered and relied upon Exhibits F1 and F2.
The Independent Children’s Lawyer relied upon the following documents:
(1)Application in a Proceeding filed by the wife on 23 October 2023;
(2)Response to Application in a Proceeding filed by the husband on 17 January 2024;
(3)Affidavit of Ms Simson filed 23 October 2023;
(4)Affidavit of the wife filed 17 November 2023;
(5)Affidavit of the husband filed 5 November 2023;
(6)Affidavit of the husband filed 12 November 2023;
(7)Affidavit of the husband filed 17 January 2024;
(8)Affidavit of Ms T filed 1 March 2024;
(9)Affidavit of Ms T filed 7 March 2024;
(10)Child Impact Report prepared by Court Child Expert Ms P dated 4 August 2023; and
(11)Draft Minute of Proposed Orders.
ISSUES FOR DETERMINATION
The issues to be determined are:
(1)Whether or not an order should be made for the wife to be solely responsible for the engagement of counselling, therapeutic or psychological treatment for the children;
(2)Whether or not injunctions should be made restraining the husband from contacting the children’s school, carers, medical providers and any other person providing care or therapy to the children;
(3)Whether or not injunctions should be made restraining the husband from contacting her carers, medical providers and any other person providing care or therapy to the wife;
(4)Whether or not either or both of the properties situate at Lots 1 and 2, D Street, Town E in the State of South Australia (‘the Town E block’) and the Suburb C property at B Street, Suburb C in the State of South Australia (‘the Suburb C property’) be sold, the terms and conditions of such sale and whether or not each of the parties should receive monies by way of partial property settlement;
(5)The return of various personal belongings and effects of the wife and the children;[4]
(6)Whether or not an injunction should be made restraining the wife from coming within 200 meters of the Suburb C property or encouraging others to do;
(7)Whether or not the wife should receive lease proceeds from the Town E blocks as proposed by the husband; and
(8)Whether or not a Senior Judicial Registrar should be disqualified from further hearing of the matter.
PROPERTY
[4] At the hearing on 7 March 2024 the wife consented to the husband’s proposed order provided that they agreed a third person to assist in the return of the items
The Wife’s Position
The final orders sought by the wife which are relevant to the current dispute provide that:
(a)The wife transfer her interest in the Town E blocks to the husband and that the husband discharge any loans secured over the properties;
(b)The wife be paid a settlement sum representing 70% of the net value of the asset pool; and
(c)Should the husband default in payment of the settlement sum then the Suburb C property should be sold to pay the wife her settlement sum owing.[5]
[5] See the Amended Initiating Application of Ms Vaughan filed 27 March 2023.
On an interim basis, the wife now seeks that she be appointed sole trustee to sell the former matrimonial home at Suburb C and the Town E blocks. The wife proposes that each party then receive a partial property settlement and with the net balance to be held in her solicitor’s trust account pending further order of the Court. The wife opposes any further work being done to the Suburb C property arguing that the husband has been renovating the property for years. She is sceptical that the works will ever be completed. Further, she is concerned about the husband going into debt to fund the works that need to be done. The wife proposes that the Suburb C property be sold “as is” and that the open market determine the value.
The initial affidavit filed in support of the wife’s application for partial property settlement by the wife’s solicitor, Ms Simson, suggests that “Camatta Lempens requires payment of the applicant’s legal fees”.[6] The affidavit further suggests that money in trust is required to “continue the litigation and continue with representation.[7]
[6] See the Affidavit of Ms Simson filed 23 October 2023 at paragraph 10.
[7] See the Affidavit of Ms Simson filed 23 October 2023 at paragraph 10.
The wife’s Costs Notice filed 5 March 2024 states that the wife has actual costs incurred of $126,745.67 and unbilled costs of $9,838.51. The estimated future costs to Trial are said to be “around $80,000” of which the sum of $40,000 is allocated for counsel fees for Trial preparation and Trial.[8]
[8] See the Rule 12.6 Costs Notice filed on behalf of Ms Vaughan filed on 5 March 2024.
The wife’s Terms of Engagement with Camatta Lempens are annexed to the wife’s affidavit filed 29 February 2024.[9] Under the heading ‘Outcome Dependent Billing’, the Terms set out of the following:
[9] See the Affidavit of Ms Vaughan filed 29 February 2024 at Annexure MSV-3.
Outcome Dependent Billing
11.4 We have agreed to receive payment of Legal Fees but not Disbursements and Third Party Fees dependent on an Outcome of this matter.
11.5 For the purposes of clause 11.4 ‘Outcome’ is defined as:
11.5.1 You terminate out engagement prior to finalisation of this matter; or
11.5.2 An offer is made that we reasonably recommend you accept; or
11.5.3 This matter becomes inactive for a period of three (3) months or more; or
11.5.4 This matter settles on terms that include a financial settlement, including transfer of property, to you; or
11.5.5 You receive a partial payment of your financial settlement; or
11.5.6 court orders are made which include a financial settlement, including transfer of property, to you; or
11.5.7 we reasonably terminate our engagement.
11.6 You agree that upon there being an Outcome, Your Costs will become wholly or partially due and payable as determined by us.
It is evident from the Terms, that the wife’s solicitors have agreed on payment of their solicitors’ costs at end of matter. Disbursements and third-party fees which would include counsel fees and valuations reports are not dependent on the outcome of the proceedings and will be wholly or partially due and payable as determined by them.
The wife will require funds for counsel fees and disbursements prior to Trial. Actual counsel fees as at 5 March 2024 are $7,980.50 (GST inclusive) and $40,000 for counsel fees is estimated for Trial.[10]
[10] See the Rule 12.6 Costs Notice filed on behalf of Ms Vaughan on 5 March 2024.
The Husband’s Position
On a final basis the husband proposes that the Town E blocks be sold in a manner recommended by a selling agent and that he have “first right of refusal to match the best offer made” It became apparent during submissions that the husband proposes some sort of ‘phantom’ marketing campaign with the value of the Town E blocks to be determined by the best offer made on the open market and with the husband to be able to make an offer in that setting to retain the blocks. The husband seeks an order that there be an adjustment on account of any value added due to “his hard work and ingenuity.” Further, the husband proposes that the wife retain the Suburb C property and that otherwise she receives an amount representing 30% of the value of the net asset pool.[11]
[11] See the Response to Initiating Application of Mr Vaughan filed 8 May 2023.
On an interim basis, the husband opposes the sale of the Town E blocks but does propose that the Suburb C properties be sold in late 2024 after he has been given an opportunity to complete renovations and repairs to the property.[12] The husband maintains that these repairs and renovations are critical to maximise the ultimate return for the benefit of the parties.
[12] See ‘Orders Sought’ in the Response to Application in a Proceeding filed by Mr Vaughan on 17 January 2024.
Upon sale and after discharge of the mortgage and payment of sales costs in relation to the Suburb C property, the husband wishes to repay his sister, Ms U, the sum of $35,000 she allegedly advanced to him to complete the renovations and that the remaining net proceeds be divided equally between the parties.[13]
[13] See the copy of the alleged loan agreement signed by the husband only at Annexure Mr V-6 to Affidavit of Mr Vaughan filed 17 January 2024.
The husband has obtained development approval from the Council for a small block of land on the Town E blocks, the income of which he says will fund his retirement.[14] The husband seeks an opportunity to establish the land as a source of income into the future arguing that it is difficult for him to earn an income as a professional due to the competitive nature of the industry which has moved to online services. Further, the husband asserts that the Town E blocks are “increasing in value rapidly” due to a nearby residential development[15] and argues that it will benefit the wife if the Town E blocks are retained.
[14] See the Affidavit of Mr Vaughan filed 17 January 2024 at paragraph 8.
[15] See the Affidavit of Mr Vaughan filed 17 January 2024 at paragraph 13.
The husband opposes the wife receiving any monies from the sale of either the Suburb C property or the Town E blocks at this point in time. If and when the Suburb C property is sold, the husband proposes that after payment of the mortgage, sales costs and the debt to his sister, the balance be divided equally between them.
Relevant Legal Principles
As best as can be discerned from the documents filed by the parties, the significant assets of the parties are as follows:
ASSET OWNERSHIP WIFE’S VALUE HUSBAND’S VALUE 1. B Street, Suburb C SA Husband $450,000 E $650,000 E 2. Lot 1 and 2, D Street, Town E SA Joint $800,000 E $705,000 E 3. Car Wife $38,000 NK 4. Cars (Motor Vehicle 1 and 2) Husband $8,000 E $9,000 E[16] 5. Westpac Bank Account Wife $700 NK 6. Bank Accounts (no disclosure) Husband Unknown. $23,400 E[17] 7. Furniture and effects Wife $1,000 NK 8. Furniture and effects Husband $3,000 NK 9. Shares (22,000 shares) Husband NK Not disclosed 10. Life Insurance Policy Husband NK $1,000 E Assets Subtotal $1,300,700 E $1,388,400 E LIABILITIES 11. Car Loan Wife $38,000 NK 12. Home Loan (Suburb C) with S Company Husband $220,000 E $210,000 E 13. Income Tax outstanding Husband NK $20,000 E[18] 14. Westpac Personal Credit Card
Westpac Business Credit CardHusband $1,800 E $2,200 E[19] 15. Home improvement loan with AA Company Husband $2,500 E $2,200 E[20] 16. Personal Loan from Ms U Husband Nil $50,000 E[21] 17. Costs arising from Court proceedings with BB Pty Ltd Husband NK Not determined. Liabilities Subtotal $262,300 E $284,400 E SUPERANNUATION 18. Super Fund 1 Wife $390 NK 19. Super Fund 2 Wife $7,975 E NK 20. Self-managed superfund (Funds 1 and 2) Husband Unknown $101,000 E[22] Superannuation subtotal $8,365 $101,000 E TOTAL NET NON-SUPERANNUATION ASSET POOL $1,038,400 E $1,104,000 E TOTAL NET ASSET POOL (INC. SUPERANNUATION) $1,046,765 E $1,205,000 E [16] Comprising a Motor Vehicle 1 estimated at $5,000 and a Motor Vehicle 2 estimated at $4,000. Figures taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraphs 37 and 40.
[17] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraph 37. The husband alleges these funds are reserved for renovations to the Suburb C property.
[18] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraphs 48 & 49.
[19] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraph 52.
[20] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraph 52.
[21] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraph 50.
[22] Taken from the Financial Statement of Mr Vaughan filed 15 January 2024 at paragraph 45.
The law in relation to interim property settlements in this jurisdiction is well established.
If an interim property order is to be made, the order must be granted under a power to make such orders and the issues attaching to the exercise of such power must be taken into account.
Section 79 of the Family Law Act 1975 (Cth) (‘the Act’) confers on the Court a power to make orders for property settlement. While there is only a single exercise of power under section 79, the Court may exercise the power through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[23]
[23] Gabel & Yardley [2008] FamCAFC 162.
Section 80(1)(h) of the Act confers on the Court a power to “make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order”. Together, sections 79 and 80(1)(h) confer on the Court a power to make orders for interim property settlement.
The Full Court decision of Strahan & Strahan (Interim Property Orders)[24] is the leading authority on the test to be applied when considering an interim property settlement application. The Full Court stated that there are two stages to consider when hearing an application for interim property settlement.
[24] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (Boland, Thackray & O’Ryan JJ).
The first stage is what was said to be ‘the procedural step’. Their Honours Justice Boland and Justice O’Ryan held:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.[25]
[25] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, [132].
The second stage of the process for considering interim property applications is the ‘substantive step’. With respect to the second stage of the process, their Honours said:
In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provision of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.[26]
[26] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, [135].
Given that a party is effectively seeking access to their own funds, it is unnecessary for there to be ‘any detailed inquiry as to the purpose for which funds are to be used’.[27]
[27] Felice & Felice [2011] FamCA 162, [12] (Loughnam J).
Following on from discussion about the two-stage approach, the plurality of the Full Court considered ‘the adjustment issue’ or ‘claw back issue’, which is whether:
It seems likely to the Court that…the applicant…will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made.[28]
[28] Felice & Felice [2011] FamCA 162, [137] (Boland & O’Ryan JJ).
In exercising the power under section 79 of the Act, it is important for the Court to ensure that it is just and equitable to make the order sought in circumstances where the power will not be exhausted by an interim order.[29] An interim order for the distribution of property must be “amenable to adjustment on a final hearing.”[30] The nature of an interim hearing is such that the Court is not in a position to properly evaluate the evidence and accordingly, the Court should take a conservative approach, including in respect to determining whether there is likely to be sufficient resources of the parties available at a final hearing to accommodate any “ adjustment issues.”
[29] Felice & Felice (2011) FamCA 162, [136] (Boland & O’Ryan JJ).
[30] Medlow & Medlow (2016) FLC 93-692, [83].
Importantly, more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of funds being sought) from the other party.[31] The Court may have regard to the fact that in family law proceedings one party may have the preponderance of resources.[32]
[31] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 [139].
[32] Wenz & Archer (2008) 40 Fam LR 212, [50]-[57]
The overriding consideration at all stages of the process is that the Court should be satisfied that it is just and equitable to make the order in the circumstances presented to the Court.
In the case of Sresbodan & Stresbodan & Ors[33] at [35]-[43], the following principles were said to be relevant to the Court’s consideration:
[33] Sresbodan & Stresbodan & Ors [2013] FamCA 480.
(i)Together, s 79 and s 80(1)(h) of the Family Law Act confer a power on the Court to make orders for interim property settlement.
(ii)Section 79 confers a discrete power to make orders for property settlement and the Court may exercise the power conferred by s 79 through ‘a succession of orders until the power … is exhausted’ or a final order dealing with all the known property of the parties is made.
(iii)Section 80 is not in itself a source of jurisdiction for such an order to be made. Rather, the section is an ‘enabling provision’ that provides various ways in which the general power in s 79 may be exercised in individual cases. This includes, by s 80(1)(h) making ‘a permanent order, an order pending the disposal of proceedings, or an order for a fixed term, or for a life or during joint lives, or until further order.’
(iv)There are two stages to the hearing of an application for property orders.
(v)There is no barrier or threshold requiring an applicant to establish ‘compelling circumstances’ at either the first or second stages of the Court’s consideration.
(vi)Given that the parties are effectively seeking access to their own funds, it is unnecessary for there to be ‘any detailed enquiry as to the purpose for which funds are to be used’.
(vii)Sufficient particulars must nonetheless be provided to enable the Court to determine;
(i)That the application is ‘genuine’.
(ii)To identify ‘the circumstances that make it appropriate to give consideration to exercising its power’.
(iii)To sufficiently weigh the identified need ‘against the benefit of having only one exercise of a s 79A power’.
(viii)While the usual s 79 considerations apply to the second stage of the process, a detailed analysis of those considerations is not required in any interim hearing.
(ix)Nevertheless, because the very nature of an interim hearing is such that the Court is not in a position to properly evaluation the evidence, the Court should take a conservative approach including in respect of determining whether there are likely to be sufficient resources of the parties available at final hearing to accommodate any ‘adjustment issue’.
(x)After completion of the first two stages, it is then necessary to focus on that ‘adjustment issue’. In terms of quantum, it is necessary to consider whether an interim property order would give a party so much that it could not be adjusted on the final hearing.
(xi)In terms of form, such an order must be of a nature that it is ‘capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power.
(xii)In that respect, the interim order ‘must be capable of variation or reversal without resort to s 79A of the Act or appeal’.
(xiii)An applicant is required to show more ‘than the mere fact that upon final hearing the applicant would receive the property being sought’ or an amount in excess of the funds being sort’ from the other party.
(xiv)The exercise of the jurisdiction should be conducted in the context of and 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 s 79 proceedings.
(xv)The overriding consideration at all stages of the process is that the Court is satisfied that it is ‘just and equitable’ to make the order in circumstances before the Court.
(xvi)In evaluating the competing contentions, it is necessary to have some regard to the fact that, in family law proceedings, one party may have the predominance of resources.
(xvii)Perhaps the most common situation in which the Court would be prepared to entertain an application for interim property orders, is when the party with access to the least resources requires funds to conduct their own litigation, that is, to effectively even out the legal playing field.
(xviii)While the majority of cases in which interim property orders have been made relate to applications to obtain funds to conduct litigation, that is by no means the only instance where such orders have been made. Other instances include;
(i)Situations where parties may need access to resources ‘to meet debts which may result in the party being pursued by creditors’.
(ii)The need for a party to make payments to the benefit of the children.
(iii)To take advantage of other financial opportunities.
(iv)Where the parties consent.
(v)Where there are urgent situations such as:
(i)Where it is necessary to exercise this power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period.
(ii)Cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.
In summary, the tests to be applied are:
·Whether the power under section 79 and 80(1)(h) of the Act should be exercised.
·If so, then an assessment of the factors contained in section 79 of the Act is to occur.
·An assessment as to whether any interim amount provided to the Wife in this matter can be ‘clawed back’ at a final hearing stage.
Conclusion
The parties agree for the Suburb C property to be sold. The dispute is as to timing and what should happen with the net proceeds.
I consider that the wife’s claim for a partial property settlement distribution is irresistible. The amount sought by her is within the range of would be contemplated at Trial on the factual matrix before the Court. After a long relationship, the husband remains in full control of the parties’ assets. It is not unreasonable for her solicitors to seek to have funds available for the wife to brief counsel and pay disbursements given the Terms of Engagement agreed upon by the wife with her solicitors. I decline to make an order for the sum of $90,000 as sought by the wife. Legal fees paid from matrimonial property fall within one of the exceptions to be added back to the matrimonial pool available at Trial.[34] Further, the evidence before the Court does not support this sum as needing to be paid.
[34] Trevi & Trevi [2018] FamCAFC 173; NHC & RCH [2004] FamCA 633; Candle & Falkner [2021] FedCFamC1A 102.
I propose to make an order that the husband pay the wife the sum of $50,000 no later than 26 June 2024. The date is an approximate mid-point between the parties’ positions. This will give the husband sufficient time to explore funding possibilities. There is precedent for the husband having raised funds previously from his sister Ms U. If the husband cannot raise the payment sum, the parties are to jointly appoint a sales agent to sell the Suburb C property on terms to be agreed in writing. If they cannot reach agreement, then the terms will be determined by the sales agent to be appointed by the Real Estate Institute of South Australia.
I will extend the time for the husband to pay the wife but not to the extent sought by the husband. The wife argues that the husband will never complete the renovations and if given the opportunity, will draw them out for as long as possible. The repayment of money to the husband’s sister, Ms U, is controversial. The husband says that he has borrowed the sum of $35,000 to undertake the renovations and repairs to the Suburb C property which he could not afford to self-fund. The wife disputes this arrangement and currently does not agree that it is a joint liability. The situation is not assisted by complaints about the husband’s lack of financial disclosure which may assist the wife in better understanding the husband’s position. I consider that any debt sought to be brought to account to a third party in the Balance Sheet is a Trial issue unless otherwise agreed.
I do not propose to divide any portion of the Suburb C property proceeds to the husband as he seeks. The husband seeks to ultimately retain the Town E blocks which are the parties most valuable asset. I am not satisfied on the evidence at this interim hearing that such an order would be just and equitable. I am not satisfied that any sum could be easily “clawed back” nor adjusted at final hearing.
I propose a compromise position as set out in these orders. If the husband fails to pay the wife her partial property settlement sum, then the Suburb C property shall be sold “as is.” Given that the husband seeks to retain the Town E blocks and to pay the wife a settlement sum, it is in his best interests to achieve the highest possible selling price that can be achieved to expediate the renovations.
I do not propose to sell the Town E blocks as part of these interim proceedings. The wife promotes a final order that the husband retain the Town E blocks and the husband agrees. The Town E blocks are said to be held in the names of the parties and the SMSF. It will be a matter for the husband to put evidence before the Court to show how that transfer will be achieved in the most cost-effective manner. It is agreed that if the Town E blocks are sold, the sale will trigger capital gains tax which will deplete the pool. There is currently no evidence about the quantum of tax that may arise.
PARENTING AND INJUNCTIONS
In relation to parenting matters and the injunctions sought, there are three discreet topics in dispute between the parties, namely:
(1)An order sought by the wife that she be solely responsible for the engagement of the children in counselling, therapy or psychological treatment and that a copy of the order evidence the wife’s sole authority without recourse to the husband;[35]
(2)Orders sought by the wife by way of injunction that restrains the husband from contacting the children’s school, carers, medical providers and any other person providing care or therapy to the children. The wife seeks an identical injunction but in relation to her own “carers, medical providers and any other person providing therapy to her”;[36] and
(3)An order sought by the husband restraining the wife from coming within 200 metres of the Suburb C property where he resides or “encouraging others to do so.”[37]
[35] See the Application in a Proceeding filed by Ms Vaughan on 23 October 2023 at paragraph 1 of the Orders Sought.
[36] See the Application in a Proceeding filed by Ms Vaughan on 23 October 2023 at paragraphs 4 and 5 .
[37] See the Response to an Application in a Proceeding filed by Mr Vaughan on 17 January 2024 at paragraph 1.
The orders as pleaded by the wife are opposed by the husband and supported in principle by the Independent Children’s Lawyer. The Independent Children’s Lawyer did not support the wide-sweeping nature of the wife’s proposals and promotes modified orders as set out in a draft Minute of Order.
The injunctive order sought by the husband was the subject of a without admission mutual consent order at the conclusion of the interim hearing pending delivery of my Judgment.
The Child Impact Report
In determining the current dispute, I consider that regard should be had to the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P (‘the Child Impact Report’). In my view, the Child Impact Report provides a helpful insight into the dynamic between the parties and the views of most of the children. Unfortunately, W attended the interview without his iPad which he uses for communication and could only interact using a “thumbs up (good) and thumbs down (bad) approach…”.[38]
[38] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 31.
The interview with V (aged 15 years) is the most insightful.
V was observed in the interview as being visibly distressed and crying. At the time of interview, V was a student and worked casually in hospitality and assisted her mother caring for her siblings.
When asked about her mother, V described her as being “stressed and tired” due to the Court process and having five children in her care. V stated that her mother has spent considerable time in her bedroom and is mostly “fighting or crying”. V described the mother as “clueless and in love” and that she (V) cannot share her feelings with her mother which makes V “feel sad”.[39]
[39] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 36.
V spoke of her mother and Mr O arguing regularly and described that after returning home from work, the adults retired to their bedroom together to watch movies and eat. V complained that her mother was not spending enough time with any of the children and would leave the home on weekends including overnights when carers would stay at the home to care for the children. V described asking her mother why she and Mr O go away or to expensive restaurants without the children. Her mother’s alleged response was said to be “we need to use up the funding”. V considered Mr O was controlling of the mother.[40]
[40] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 37.
V expressed a “sense of great responsibility” for herself in the home and reported cooking most evenings (every night when her parents were together) and babysitting her siblings.[41]
[41] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 38.
When asked about her father, V was described by the Family Consultant as “sobbing” and complained that her father had not acknowledged her accomplishments and that she had been called “lazy and fat” by her father.[42]
[42] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 39.
V described herself as “slave and second parent” during her parents’ relationship.[43]
[43] See the Child Impact Report dated 4 August 2023 prepared by Court Child Expert Ms P at paragraph 40.
It is noteworthy that V has now voted with her feet and is living independently from each of her parents. To my mind, V’s interview raises concerns about Mr O and what is happening for the children in the wife’s home.
The complaints made by V in relation to each of the parties were mirrored to differing degrees at interview by Y and Z.
Under the heading ‘Key Considerations and Pathways for Decision Making’, the Court Child Expert recommended that V, X, Y and Z would all benefit from psychological therapy to understand their experiences and develop strategies to ensure their emotional wellbeing is prioritised. Services such as L Organisation or Child and Adolescent Mental Health Services (‘CAMHS’) were considered appropriate. Further recommendations were made in relation to the attendance of the parties at parenting courses or behavioural change programs and for each party to obtain a psychiatric report.
Many of these recommendations are now the subject of Court order.
Relevant Legal Principles – Parenting
The order sought by the wife for responsibility for the children’s therapeutic or psychological treatment is a parenting order within the definition provided in Section 64B(2)(i) of the Act.
The legal principles to be applied at an interim hearing are the same as those to be applied at the final stage.[44] Unlike a final hearing, I am unable to make any findings on any factual disputes or allegations.
[44] Goode & Goode (2006) 36 Fam LR 422, [81].
In making a parenting order, the Court must regard the best interests of the children as the paramount or most important consideration.[45] The Court must consider in determining a child’s best interests, the matters set out in section 60CC of the Act.
[45] Family Law Act 1975 (Cth) s 60CA.
Section 60CC of the Act sets out two classes of considerations, namely the primary considerations and a longer list of additional considerations. The Court is directed to give greater weight to the primary considerations which align with the objects and principles set out in section 60B of the Act.
There are two primary considerations, namely:
(1)The benefit to the child having a meaningful relationship with both child’s parents; and
(2)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[46]
[46] Family Law Act 1975 (Cth) s 60CC(2)(a) & (b).
Section 60CC(2)(a) of the Act directs the Court when applying the primary considerations to “give greater weight” to the primary consideration relating to protective concerns.
Additional considerations are further set out in section 60CC(3) of the Act, being criteria that the Court must consider in determining the best interests of the children.
In this case, I consider that the following section 60CC(3) criteria are relevant:
(a) – any views expressed by the children and any weight to be attached to those views
(b) – the nature of the relationship of the children with each parent;
(c) – the extent to which parent has (or has not) taken, or failed to take the opportunity to participate in long term decision making or to spend time and communicate with the child;
…
(f) – the capacity of each of the child’s parents to provide for the needs of the child, including emotional needs;
…
(i) – the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents;
(j) – any family violence involving the child or a member of the child’s family.[47]
[47] Family Law Act 1975 (Cth) s 60CC(3)(a), (b), (c), (f), (i) and (j).
In undertaking an enquiry regarding the best interests of children, the Court is to consider that the children are to have the benefit of both of their parents having a meaningful involvement in their lives.[48]
[48] Family Law Act 1975 (Cth) s 60B(1)(a).
Section 60B(2)(c) of the Act provides that an underlying objective of the Act is to ensure that parents jointly share duties and responsibilities concerning the care, welfare, and development of their children. Subject to any prevailing counter indication, the law encourages parents to share responsibilities and to make major long-term decisions for the benefit of their children.
Given that V (who is 15 years of age) has elected to live away from her parents, I should record that none of the Orders made herein apply to her.
Should the wife be solely responsible for the engagement of counselling or therapeutic or psychological treatment for the children with the medical practitioner chosen by the wife without recourse to the husband?
Paragraph 10 of the order made on 21 December 2023 directs the wife by its terms to “forthwith do all things necessary to engage each child in psychology therapy through an organisation such as L Organisation or the Child and Adolescent Health Service.” The mother is also permitted the terms of the order to provide a copy of the Child Impact Report to the child’s treating psychologist or therapist.
The mother attempted to engage Mr CC, psychologist, in compliance with the said order.
The wife has put before the Court an email to her from Mr CC dated 20 September 2023 advising that the husband had contacted him stating that he did not consent to the children consulting with him. Mr CC then cancelled the appointment.[49]
[49] See the Affidavit of Ms Simson filed 23 October 2023 at Annexure MSS1.
The husband agrees that Mr CC has now declined to treat any of the children and that a new psychologist will need to be sourced. The husband proposes that the children attend either the DD Program or the EE Program run by FF Service, or the H Program run by J Centre.
Whilst the Court considers that the programmes nominated by the husband would be beneficial for the children, it does not address the fact that a specific recommendation was made in the Child Impact Report for psychological therapy to ensure that the children’s emotional wellbeing is prioritised. The order for targeted psychological therapy has been ordered on two occasions by the Court. There is no evidence before me that the programmes suggested by the husband involve specific psychological therapy.
In resolving this dispute, I propose to order that a copy of my orders serves as an authority for the wife to proceed with organising and ensuring the children’s attendance at psychological therapy without the husband’s consent. That was in effect what should have occurred when orders were made by consent on 29 August 2023 and then on Review on 21 December 2023.
However, I consider it reasonable for the husband to be kept informed of those appointments and I will direct that the Independent Children’s Lawyer obtain a copy of a report from the children’s treating psychologists and provide the report to each of the parties.
The psychological treatment is to help the children given the matters identified in the Child Impact Report. Those sessions should be safe and private spaces for the children to have professional help for their emotional wellbeing. It is regrettable that nearly seven months after the first order was made the children are yet to commence any therapy at all because of their parents’ ongoing inter-personal dispute.
Relevant Legal Principles – Injunctions
Whilst not specifically pleaded, I proceed on the assumption that:
(a)The injunctive orders sought by the wife in paragraph 4 of her Application in a Proceeding are sought pursuant to section 68B of the Act given that the order is directed to the alleged protection of the children from behaviour by the husband; and
(b)The injunctive order sought by the wife in paragraph 5 of her Application in a Proceeding and paragraph 1 of the husband’s Response to an Application in a Proceeding are sought pursuant to section 114 of the Act given that the orders are directed to the protection of each of the parties from the alleged conduct of the other.
The Court has held that orders pursuant to section 68B of the Act are informed by the best interests test but not the paramountcy principle.[50]
[50] Hedlund & Hedland [2021] FedCFamC1A 84; Flanagan & Handcock [2000] FamCA 150; EJK & TSL [2006] FamCA 730; Bennett & Bennett [2001] FamCA 462.
The order sought by the wife in paragraph 4 of her Application stem from the husband’s communications with Dr M, paediatrician at GG Centre. Dr M has previously consulted the child X given his diagnosis of ADHD.
In early 2024, the husband sent an email to Dr M as transcribed below:
[Dr M]
I believe it is clear on the facts that the Mother is refusing as custodial parent to engage with me and provide relevant medical information about [X].
I ask you to immediately withdraw any inference that put me in the same category.
The letter as it currently stands will no doubt be used by the Mother's lawyers to blame me when all I was doing was seeking to access information I was entitled to and you in your prior communication said you will provide.
You now have had a change of mind and abandoned [X], well done you have reacted in precisely the way the other side lawyers wanted you to.
I demand an immediate retraction of that inference in your letter and an apology.for the inference.
I will hold you responsible for any harm that your letter will cause to myself if used by the mother's lawyers in Court and the Court accepts the clearly untrue inference(s) in it.
I demand forthwith be provided with all relevant medical information with regards to [X] and it is outrageous that you think that you can just close the file and not provide it to me as I have sought,you do not seem to understand the responsibilities you owe BOTH parents.
If you seek further verification of myself beforehand then I am more than willing to provide,I have already said I am happy to make an appointment and I believe that is the right thing to do now to discharge your medical and ethical responsibilities before you close the file.
I suggest the appointment you have just cancelled be reopened for myself.
I will still require the necessary written responses I have sought.
I suggest you seek legal advice before responding to this email.
I give you 21 days to appropriately respond.
I reserve my full legal rights including lodging a complaint with the relevant medical tribunal.
I am shocked at the lack of respect and arrogance you have shown to me in your last letter.
Regards
[Mr Vaughan][51]
[51] See the Affidavit of the Independent Children’s Lawyer filed 1 March 2024 at Annexure MST-1.
In early 2024, Dr M emailed the Independent Children’s Lawyer advising that she is no longer willing to communicate with either parent about X and that no further emails would be acknowledged or responded to.[52]
[52] See the Affidavit of Ms Vaughan filed 29 February 2024 at paragraph 8.
Any reasonable person would see the email communication from the husband to Dr M as unnecessarily aggressive and belligerent. It has resulted in the child X not being able to consult a paediatrician in relation to his ADHD condition which requires monitoring and medication.
I propose to make orders permitting the husband to communicate with the children’s medical providers and therapists to comply with the orders made herein. Otherwise, the husband should be restrained from communicating with those persons given what has happened to date with two professional persons who have withdrawn from treating the children. It is not in the children’s best interests for the conduct of the parents to impact on their medical treatment. If the husband has any additional queries or concerns, they should be directed to the Independent Children’s Lawyer.
There is no recent evidence to support an order restraining the husband from contacting the children’s schools,[53] nor any evidence to support an order restraining the husband from contacting the children’s ‘carers.’ I propose to dismiss those aspects of the wife’s application.
[53] See the Affidavit of Ms Vaughan filed 14 June 2023 at paragraph 55.
Paragraph 5 of the wife’s Application in a Proceeding can be dealt with summarily. In response to a question from the Court, the wife’s counsel conceded that there is no evidence before the Court to support such an order being made.
Accordingly, the order sought in paragraph 5 of the wife’s Application in a Proceeding filed 23 October shall be dismissed.
Paragraph 1 of the husband’s Response to an Application in a Proceeding filed 17 January 2024 can be resolved by continuing the mutual without admission order made by consent on 7 March 2024. I consider such an order to be reasonable in all the circumstances. It is a proportionate order and will ensure that each party has the safe and quiet enjoyment of their respective homes. There is currently no need for either to attend at each other’s residences for any handover and the return of the wife’s items can be arranged by an agreed agent.
OTHER ORDERS
I propose to dismiss the husband’s application that the Senior Judicial Registrar be disqualified from hearing the matter further. Either the proceedings will remain before me and I will manage the matter to Trial. If, however, the parties draft Trial plans suggest a hearing date longer than five days then it is inevitable that the proceedings will be transferred to Division 1 of the Court. There are other Senior Judicial Registrars available to hear any interlocutory applications should that be necessary at some later date. I, therefore, decline to rule on the application seeking to disqualify a Senior Judicial Registrar from further hearing the matter.
I decline to make an order in terms of paragraph 2 of the husband’s Response to an Application in a Proceeding filed 17 January 2024. The wife did not address this order in her submissions. In the absence of hearing full submissions on the topic, I decline to make orders as sought by the husband.
The wife complains that the husband has failed to undertake the Financial Statements associated with the SMSF since 2018. The husband accepts that the funds are yet to be prepared and lodged. The husband has conceded that he will be responsible for any lodgement penalties in relation to the SMSF.[54] I propose to make an order for the financial statements for the SMSF to be prepared and lodged, and with the costs of such lodgement to be paid by the husband at first instance.
[54] See the Affidavit of Mr Vaughan filed 17 January 2024 at paragraph 27.
Each of the parties complain about the failure by the other to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules2021 for the provision of financial disclosure to each other. I propose to make an order for the filing of an Affidavit of Documents by each party.
I will further make orders for the preparation of the matter prior to the parties attending a Conciliation Conference.
For all of the above Reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 27 March 2024
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