Wadhams & Wadhams

Case [2021] FCCA 2173

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wadhams & Wadhams [2021] FCCA 2173   

File number(s): SYC 1903 of 2021
Judgment of: JUDGE BECKHOUSE
Date of judgment: 26 August 2021
Catchwords:

 FAMILY LAW – interim parenting – spend time with –– child’s expressed view

FAMILY LAW – interim property – periodic spousal maintenance - interim lump sum spousal maintenance   
Legislation:  Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 72, 74, 75(2), 75(3)
Cases cited:

Garston & Yeo (No. 2) [2019] FamCAFC 139

Hall v Hall (2016) 257 CLR 490

Hanas & Jolaha (No. 4) [2019] FamCA 483

MS & PS (2006) FLC 93-268
Date of hearing: 26 August 2021
Place: Sydney
Counsel for the Applicant: Mr Fermanis
Solicitor for the Applicant: Vobis Equity Attorneys
Counsel for the Respondent: Ms Giacomo
Solicitor for the Respondent: Purcell Lawyers
Solicitor for the Independent Children's Lawyer: Ms Wilkins of Phillip A Wilkins & Associates

ORDERS

SYC1903 of 2021
BETWEEN:

MR WADHAMS

Applicant
AND:

MS WADHAMS

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

26 AUGUST 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.The matter is listed for mention on 8 November 2021 at 9:30am.

2.Orders 15, 16, 17 and 22 of the Orders made on 6 April 2021 remain in full force and effect.

3.The child, X born in 2010 (hereinafter “the child”), be permitted to contact each parent by telephone or any other electronic medium in accordance with her wishes and neither parent shall hinder or prevent that communication.

4.By way of lump sum interim spousal maintenance, and in addition to any spousal maintenance arrears or periodic payments, the Husband pay to the Wife the sum of $2,500 within 14 days.

BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:

5.Within fourteen (14) days of the date of these Orders, each parent shall do all things and sign all documents necessary to enrol in the following courses, and shall thereafter attend at such courses as directed by the course provider until the completion of the said course:

(a)Tuning in Teens; and

(b)Parenting After Separation or Keeping Kids in Mind.

6.Upon completion of such courses set out in Order five (5) herein, each parent shall provide a certificate of completion to the Independent Children’s Lawyer.

7.Each parent shall be restrained from denigrate the other in the present or hearing of the child.

Family Report

8.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report.

9.The Family Report to deal with the following matters:

(a)The benefit to the child of a meaningful relationship with each parent.

(b)The capacity of each parent to protect the child from harm.

(c)The capacity of each parent to promote the psychological, emotional and educational well-being of the child.

(d)The insight of each parent into…

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Wadhams & Wadhams [2021] FCCA 2173
Case
[2021] FCCA 2173
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Wadhams (the Applicant/Husband) and Ms Wadhams (the Respondent/Wife) before Beckhouse J in the Federal Circuit Court of Australia. The dispute involved interim parenting orders and spousal maintenance, with a particular focus on the welfare and best interests of the child, X, born in 2010. The parties had previously separated under the one roof in August 2020, with the wife physically leaving the family home with X in March 2021.

The court was required to determine several legal issues, including the appropriate interim parenting arrangements for X, specifically addressing concerns about her well-being and relationship with each parent. Additionally, the court considered the provision of interim spousal maintenance and the release of *Harman* undertakings to allow for the use of court material in separate criminal and apprehended domestic violence order proceedings in the Local Court of New South Wales. The court also needed to address the parties' compliance with parenting programs and the preparation of a Family Report.

In reaching its decision, Beckhouse J applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CA regarding the best interests of the child, and sections 60B and 60CC outlining the objects, principles, and considerations for parenting orders. The court noted the importance of protecting X from harm, which was to be given priority over the benefit of a meaningful relationship with each parent. The court was significantly assisted by a Child Inclusive Conference Memorandum, which detailed interviews with the parties and X. The memorandum highlighted X's distress regarding her father's behaviour, including confiscating her mobile phone and speaking negatively about her mother. X expressed a clear preference not to spend additional time with her father, finding the overnight arrangements uncomfortable and feeling caught in parental conflict.

By consent and pending further order, the court made several orders. These included listing the matter for mention, maintaining existing orders, permitting X to contact each parent electronically according to her wishes, and ordering the husband to pay a lump sum of $2,500 by way of interim spousal maintenance. Both parents were ordered to enrol in and attend parenting courses, and to refrain from denigrating each other in X's presence. The court also ordered that a Family Report be prepared by a Family Consultant, detailing specific matters relevant to X's welfare and best interests, and granted the respondent leave to use material filed in these proceedings in separate Local Court matters. The court noted that the wife's compliance with the parenting course order was subject to her having access to a computer.

Orders

Orders of the court

SYC1903 of 2021

BETWEEN:

MR WADHAMS

Applicant

AND:

MS WADHAMS

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

26 AUGUST 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The matter is listed for mention on 8 November 2021 at 9:30am.

2. Orders 15, 16, 17 and 22 of the Orders made on 6 April 2021 remain in full force and effect.

3. The child, X born in 2010 (hereinafter “the child”), be permitted to contact each parent by telephone or any other electronic medium in accordance with her wishes and neither parent shall hinder or prevent that communication.

4. By way of lump sum interim spousal maintenance, and in addition to any spousal maintenance arrears or periodic payments, the Husband pay to the Wife the sum of $2,500 within 14 days.

BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:

5. Within fourteen (14) days of the date of these Orders, each parent shall do all things and sign all documents necessary to enrol in the following courses, and shall thereafter attend at such courses as directed by the course provider until the completion of the said course:

(a) Tuning in Teens; and

(b) Parenting After Separation or Keeping Kids in Mind.

6. Upon completion of such courses set out in Order five (5) herein, each parent shall provide a certificate of completion to the Independent Children’s Lawyer.

7. Each parent shall be restrained from denigrate the other in the present or hearing of the child.

Family Report

8. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report.

9. The Family Report to deal with the following matters:

(a) The benefit to the child of a meaningful relationship with each parent.

(b) The capacity of each parent to protect the child from harm.

(c) The capacity of each parent to promote the psychological, emotional and educational well-being of the child.

(d) The insight of each parent into the children’s needs.

(e) The attitude of each parent to the responsibilities of parenthood.

(f) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(g) Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

10. The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.

11. The Family Consultant has leave to view all material produced under subpoena and released for inspection.

12. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the Family Report.

Release from Harman undertaking

13. The Court release the Respondent from the implied Harman undertaking in respect of the Initiating Application filed 17 March 2021, Affidavit of Mr Wadhams filed 17 March 2021, Notice of Risk filed 17 March 2021 and Affidavit of Mr Wadhams filed 26 August 2021 filed in this proceeding, and have leave to use the affidavit in the criminal and ADVO proceedings currently before the Local Court of New South Wales.

THE COURT NOTES THAT:

A. The Wife’s compliance with Order 5 of the interim consent orders is subject to her having a computer to complete the courses.

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.

Background

Background to the litigation

I should also note that both parties have sought the release of Harman undertakings in respect to material that has been filed in these proceedings for use in proceedings that are currently before the Local Court of New South Wales. The parties reached agreement on this issue, and it will be incorporated into the orders that are made by consent today. Those orders were marked as Exhibit 2. BACKGROUND By way of background to the matter, the father is Mr Wadhams. He was born in 1977 and is aged 43. The respondent mother is Ms Wadhams. She was born in 1974 and is aged 46. The parties began cohabiting in 2005 and were married in 2005. They separated under the one roof on 2 August 2020, although the date of physical separation would appear to be 11 March 2021 when the wife left the home with X and moved into her own accommodation. As this is an interim matter, there are no findings of fact that are made today apart from matters that are agreed between the parties. By way of additional background, I provide the following information. The matter came before the Court on 6 April 2021 when orders were made by consent. Those orders contained specifically, and relevant to this matter, an order that the husband pay the wife $250 per week of spousal maintenance and that he pay the wife the sum of $6000 by way of a lump sum amount of spousal maintenance. The parties were ordered to attend a Child Inclusive Conference on 2 August 2021. An ICL was appointed and orders were made to facilitate that appointment. In relation to the child X, it was agreed that she would reside with the mother and spend every second weekend with her father from Friday to Monday and each Wednesday evening from after school until 8 pm. On 16 July 2021, the wife alleges that the husband ceased paying her the amount of $250 per week.PARENTING I will first turn to the matters arising from the application for parenting orders. As I have indicated, currently there are orders that were made on 6 April, and some additional orders will be made today by consent. The two matters that remain in dispute in relation to the parenting matter, as I have indicated, is the additional night and the communication issue. The Law The law that guides the making of decisions in relation to parenting matters is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”), and when making parenting orders the Court must consider what is in the best interests of X pursuant to section 60CA. Her best interests are determined by a combination of the objects and principles under section 60B as well as the primary and additional considerations in section 60CC. In this matter, I must be guided by the need to protect X from harm over the benefit of her having a meaningful relationship with her parents. For today’s purposes, that is not such a significant determination, and I am more guided by the secondary considerations set out in section 60CC(3). The independent evidence I am greatly assisted in making a decision about what orders would be in X’s best interests by the Child Inclusive Conference Memorandum. The parties were seen by Family Consultant Condon on Monday 2 August 2021 separately, and the Child Inclusive Conference Memorandum has been released to both parties.

Evidence

Evidence Before The Court

In this matter, I must be guided by the need to protect X from harm over the benefit of her having a meaningful relationship with her parents. For today’s purposes, that is not such a significant determination, and I am more guided by the secondary considerations set out in section 60CC(3). The independent evidence I am greatly assisted in making a decision about what orders would be in X’s best interests by the Child Inclusive Conference Memorandum. The parties were seen by Family Consultant Condon on Monday 2 August 2021 separately, and the Child Inclusive Conference Memorandum has been released to both parties. Of note in that report, the father reported that X did not want to spend overnight time with him and he did not support that. He said there are no grounds upon which X should not be spending equal time with him. I note, however, his position has now moved. The mother said there was an incident between X and Mr Wadhams, the father, which caused X serious distress. It caused her to lock herself in a bathroom, and she was refusing to spend the night in her father’s care because he had confiscated her mobile phone and, she said, was screaming at her. On that occasion, the mother said X was distressed and demanded that she be collected by her. The mother said she was not able to collect X because of the ADVO. She said she then called the police, who undertook a welfare check on X, and X remained with her father that evening. In the affidavits of the parties, and particularly the affidavit of the mother, there appears to be high conflict between the parties and a constant involvement by the father of X in the proceedings. She is certainly a child in the middle of the parental conflict. When X saw the Family Consultant, there were many observations made, but particularly X had a clear view that she did not want to spend any further time with her father than what the current arrangements provided for. She said she did not like the overnight part because she feels uncomfortable. She explained that the house did not have great memories for her and she found it hard being separated from her mother. X said one of the biggest difficulties in spending time with her father is the lack of support for her to call her mother, and X said that the changeovers were not ideal either. X expressed concern that her father speaks negatively about her mother, and X said she did not have a positive relationship with the paternal grandmother either, but mainly because she overheard her father talking in Language B to the maternal grandmother and saying what X reported were mean things about her mother, such as calling her “dumb” and “selfish”. X said to the Family Consultant that she accepted her current parenting arrangements for now. She reiterated in her interview that she does not want any more time, including the school holidays, and wants the current arrangements to stay as is. In terms of the future directions for the matter, the Family Consultant observed that X impressed as a thoughtful and articulate young person, seems to value her respective relationships with each parent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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