Whitten and Whitten & Anor (No 2)

[2015] FamCA 408

FAMILY COURT OF AUSTRALIA

WHITTEN & WHITTEN AND ANOR (NO 2) [2015] FamCA 408

FAMILY LAW – CHILDREN – Interlocutory Application – Where it is uncontroversial the children should remain living with the mother and spend substantial and significant time with the father – Where it is appropriate for the presumption of equal shared parental responsibility not to apply because of the untested allegations of family violence – Where each party accepts there is no present need to protect the children from any harm caused by their exposure to family violence – No order made allocating parental responsibility

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Application – Father to pay the mother $200.00 per week by way of spousal maintenance

Family Law Act 1975 (Cth), ss 60CC, 61C, 61DA, 62B, 65DA, 65DAA, 75

APPLICANT: Mr Whitten

1^ST RESPONDENT: Ms Whitten

2^ND RESPONDENT: Whitten & Son Pty Limited

FILE NUMBER: NCC 2457 of 2014

DATE DELIVERED: 18 February 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 18 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Sullivan, Mullane & Lindsay

COUNSEL FOR THE 1^ST RESPONDENT: Mr Jackson

SOLICITOR FOR THE 1^ST RESPONDENT: Curtis Gant Irving

COUNSEL FOR THE 2^ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2^ND RESPONDENT: Not Applicable

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. All former parenting orders in relation to the following children (“the children”), including the interim orders made on 18 November 2014 and
   14 January 2015, are discharged:

   a.F (“F”) & G (“G”), both born … 2011; and

   b.H (“H”), born … 2014.

2. The children shall live with the mother.

3. Each of the parties shall take all reasonable steps to ensure that the children F and G spend time with the father each week from 9:00 am on Sunday until 1:00 pm on Tuesday.

4. Each of the parties shall take all reasonable steps to ensure that the child H spends time with the father each week:

a.From 9:00 am until 11:00 am on Sundays; and

b.From 11:00 am until 1:00 pm on Tuesdays.

1. For the purposes of implementing Orders 3 and 4 hereof, the father shall cause the collection and return of the children from and to the mother’s residence.

2. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

1. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. The husband shall pay to the wife the sum of $200.00 per week by way of spousal maintenance upon the following conditions:

   a.The first payment is due seven days from the date of these orders; and

   b.Such payments shall be made by the husband by way of direct deposit to the wife’s banking account held with the Commonwealth Bank of Australia, being BSB No: … and Account No: ...

IT IS FURTHER ORDERED THAT

1. The following interim application is adjourned to the next Court event before the Registrar on Tuesday, 24 February 2015:

a.The application for interim orders 15 to 19 inclusive set out in the wife’s Response filed on 13 November 2014.

1. Otherwise:

a.The husband’s interim applications set out within his Initiating Application filed on 19 September 2014 are dismissed;

b.The wife’s interim applications set out within her Response filed on
13 November 2014 (excluding Orders 15 to 19) are dismissed;

c.The wife’s interim applications set out within Exhibit M2 filed on
18 February 2015 are dismissed;

d.         The Application in a Case filed on 24 December 2014 is dismissed;

e.The Response to an Application in a Case filed on 10 February 2015 is dismissed; and

f.         Any and all outstanding applications for interim orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitten & Whitten (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2457 of 2014

Mr Whitten

Applicant

And

Ms Whitten

First Respondent

And

Whitten & Son Pty Limited

Second Respondent

REASONS FOR JUDGMENT

1. The spouses in these proceedings are engaged in litigation related to both the resolution of their dispute concerning the children pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”) and the division of their property interests pursuant to Part VIII of the Act.

2. The proceedings were commenced some months ago in September 2014 and the proceedings find themselves before the Court today for the purpose of adjudication of a number of interim disputes between the parties. Before passing to the specifics, it is convenient to indicate that the nature of their interim dispute is: first, the payment by the father to the mother of spousal maintenance; and secondly, the parenting arrangements for the children.

3. Although there is some factual dispute between the parties about when their marriage finally broke down, it is plain their relationship became fractious during 2013 and, at the very latest, final separation occurred in November 2013.

4. Thereafter, no orders regulated either their parenting of the children or their property interests until after these proceedings were commenced by the father in September 2014. Since then the parties have had a number of interim disputes.

5. On 18 November 2014, while the proceedings were still before the Federal Circuit Court, interim parenting orders were made between the parties and the proceedings were transferred to this Court.  Shortly thereafter, in January 2015, the parties agreed to further interim parenting orders before the Registrar. Their outstanding interim disputes were listed before the Court for hearing today.

The applications

1. The father seeks to prosecute his application for interim parenting orders set out on pages 8 to 10 inclusive of his Initiating Application, filed on

   
   

   19 September 2014. 

2. The mother joins issue on the interim parenting orders, but abandons entirely the interim parenting orders proposed within her Response, filed on

   
   

   13 November 2014. She abandoned proposed Orders 1 to 13 inclusive and in due course an order will be made dismissing that application. In lieu thereof, however, she tendered a minute of the interim parenting orders she sought, which minute was marked as Exhibit M2.  The eight parenting orders set out therein represent her proposal for interim parenting arrangements.

3. The second aspect of their dispute, as I have indicated, relates to spousal maintenance. The mother presses her Application in a Case, filed on

   
   

   24 December 2014, though her learned counsel informs the Court she abandoned proposed Order 2 therein.

4. In response, the father pressed his Response to an Application in a Case, filed on 10 February 2015, which merely seeks dismissal of the spousal maintenance application.

The evidence

1. In respect of the evidence adduced by the parties to support their respective proposals, the mother relied upon the following documents: 

   (a)her affidavit, filed on 17 February 2015;

   (b)her financial statement, filed on 13 January 2015; and

   (c)

   paragraphs 51 and 52 of the paternal grandfather’s affidavit, filed on

   
   

   11 February 2015, which two paragraphs were admitted and marked Exhibit M1. 

2. The evidence relied upon by the father was as follows:

   (a)his affidavit, filed on 9 February 2015;

   (b)the affidavit of the paternal grandmother, filed on 9 February 2015;

   (c)his financial statement, filed on 19 September 2014;

   (d)a Centrelink document from 2013 which was marked Exhibit F1; and

   (e)his 2014 taxation return, which was marked as Exhibit F2. 

3. I hasten to add that I pay little or no regard to Exhibit F1, since it was not the subject of any submission. If it was not worth mentioning, it was hardly worth tendering.

4. Each of the parties also invited the Court to take into account the contents of the Child Dispute Conference Memorandum prepared by the Family Consultant on 16 February 2015. 

5. Given the two issues currently in dispute, I will address them in sequence, and begin by addressing the question of parenting orders.

Parenting orders

1. A short statement of history will help inform the adjudication of the dispute.

2. I mentioned these proceedings were commenced in September 2014, and the first set of parenting orders was made between the parties with their consent on 18 November 2014.

3. There are three children of the parties. The eldest two are twins, born in 2011. Those twins are now aged three and a half years.  The third and youngest of the children was born in 2014 and is presently eight months of age.

4. The twins have lived with the mother since separation and the youngest child has lived with the mother since birth. Before these proceedings were commenced, it is common ground the twins spent some overnight time with the father, who currently lives with the paternal grandparents, and that for a period of time he had daily interaction with the twins at the mother’s home. His interaction with the youngest child has been much more circumscribed since her birth in July 2014. 

5. I infer that the fractious relationship between the parties, particularly concerning the children’s interaction with the father, was the genesis of the father’s commencement of these proceedings in September 2014.

6. In November 2014, when the proceedings were before the Federal Circuit Court for interim consideration, the parties agreed it was appropriate for them to have equal shared parental responsibility for the three children, for the children to live with the mother, for the twins to spend time with the father on a frequent basis, and for the youngest child to spend time with the father as may be agreed between the parties. I pause to observe that, regrettably, there is little evidence of much agreement between the parties about the amount of time that should be spent by the youngest child with the father. 

7. Following the transfer of the proceedings to this Court and re-consideration by the Registrar on 14 January 2015, another set of interim orders was made with the parties’ consent. Those orders provided for continuation of the orders earlier made in November 2014, but extended the amount of time spent by the twins with the father so they would effectively spend every Tuesday and every Sunday with him from early in the morning until relatively late in the afternoon. 

8. The parties’ mutual proposals to have equal shared parental responsibility for the children would suggest they each repose some trust and confidence in the parenting capacity of the other, though that is not necessarily evident from the affidavits they chose to file in these proceedings. 

9. Similarly, the father’s acceptance that the orders which best suit the children’s needs require them to continue living with the mother suggests he reposes confidence in her parenting capacity. The mother’s acceptance that the twins are able to spend two days of every seven in the unsupervised care of the father also demonstrates on her part a level of confidence in the parenting capacity of the father. Counsel submitted that her confidence in the father has, in fact, even grown because her current application represents an expansion of the regime under the orders to which she agreed only last month. Her proposal now is that one overnight stay each fortnight by the twins with the father should be incorporated into the parenting regime.

10. Therein lies the nub of the problem between the parties with respect to the twins. Both of them propose an expansion of the current regime, but at different rates. The mother proposes the regime expand to include one overnight visit per fortnight and the father proposes the twins have three overnight stays with him each week. For reasons to which I will advert momentarily, I reject both proposals. 

11. As for the youngest child, the parties accept her tender age requires a different regime and for her to be differentiated from her elder siblings. The mother proposed the youngest child spend time with the father for one hour each week, and only in the presence of one of the child’s nannies. The father proposed that there not be any restrictions upon the time spent by the youngest child with him, and that it occur on two occasions each week, which broadly accords with the recommendations of the Family Consultant.

12. It is opportune at this point to selectively quote from the contents of the Child Dispute Conference Memorandum. The recommendation of the Family Consultant was, given the parties only live 500 metres apart and that the father lives with and has the support of the paternal grandparents, that:

    … there is little reason as to why the twins should not spend overnight time with the father. 

13. The Family Consultant went on to venture the opinion, without any criticism by the parties in submissions, that:

    There are no significant risk of harm issues associated with the father or his parents ie. Drugs, alcohol, mental health, criminal histories etc.

14. Dealing specifically with the youngest child, the Family Consultant indicated that due to her young age and the proximity of the parties residences:

    … there is little reason as to why she should not spend time alone with the father.  Initially the children’s nanny may accompany [the youngest child] to the father’s home to provide him with some support, but the mother should remain at her residence …

15. Counsel for the mother urged upon me an inference that the Family Consultant was recommending the youngest child’s interests required that her interaction with the father be supervised by another person and, in particular, the child’s nanny. I reject that submission.

16. It is apparently uncontroversial that the twins attend day-care each Monday and Thursday in D Town. It is also apparently uncontroversial that the mother has booked the twins to attend pre-school in C Town every Wednesday in the 2015 academic year. Those commitments are important for the socialisation of the twins and there is no reason to suggest why they should not continue to attend. 

17. The father’s proposal is that the twins live with him each week from 5.30 pm on Sunday until their commencement of pre-school on Wednesday. He said that in that period he would take them to and collect them from day-care each Monday. I remain curious as to why that is his proposal, when only a month ago he agreed the twins should spend time with him discretely for a period of time approximating 12 hours during the day on each Sunday and each Tuesday. In respect of the youngest child, his proposal is that she spend time with him for up to three and a half hours every Monday and Tuesday. He anticipated he would be able to have one-on-one time with the youngest child on Monday while the twins were at day-care.

18. Orders in respect of children are regulated under Part VII of the Act. When invited to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which should properly be made. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration and the Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

19. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, but in some circumstances that presumption either does not apply or may be rebutted. That is a matter to which I will return momentarily. 

20. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other. 

21. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration. 

22. Having regard to the provisions of s 61DA of the Act, which deal with the applicability of the presumption of equal shared parental responsibility, I am inclined, in the circumstances of this case, to apply s 61DA(3), which provides as follows:

    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

23. I am so satisfied that it would not be appropriate for the presumption of equal shared parental responsibility to be applied because s 61DA(2) of the Act provides the presumption does not apply if there is evidence the parties, or either of them, has engaged in family violence. The affidavits filed by the parties are replete with exhaustive allegations of family violence against the other. It could only possibly be imputed that each party intends to ventilate against the other at final trial allegations of family violence which they hope will result in findings vindicating the allegations. In the event of such findings that either or both committed family violence, s 61DA(2) would apply and render the presumption of equal shared parental responsibility inapplicable.

24. Given the parties’ evidence about the commission of family violence is so diametrically opposed and it is impossible, in the context of an interim hearing, to draw any reasonable inference about the veracity of either’s allegations, it seems to me appropriate not to apply the presumption. As a consequence, each party will retain parental responsibility for each of the three children according to law, as provided by s 61C of the Act.

25. Given I am not making an order allocating equal shared parental responsibility for the children to the parents, I am relieved from the obligation otherwise imposed by s 65DAA of the Act to consider the residential options of either “equal time”, or alternatively, primary residence with one parent and the expenditure of “substantial and significant time” with the other.

26. It is uncontroversial the three children should continue to live with the mother.  It seems uncontroversial, in my view, that the mother expects the children should spend substantial and significant time with the father. She professed it is important for the children to have a strong relationship with the father. She ventilated a grievance, to both the Family Consultant and in her affidavit, about the father’s apparent disinterest in the children, but she wants it to be otherwise.  In such circumstances, I intend to make orders for the children to live with the mother and spend substantial and significant time with the father. 

27. Of course, the concept of “substantial and significant time” within the meaning of s 65DAA(3) of the Act is somewhat elastic. A factor which heavily influences the determination of what amounts to “substantial and significant time” is the age of the children. The age of the twins makes it appropriate, in their best interests, to spend more time with the father than will the youngest child. To their credit, both parties seem to recognise that. I intend to make orders which reaches mid-ground between their respective proposals.

1. Happily enough in these proceedings, no submission was made by either party to engage s 60CC(2)(a) of the Act. It is accepted the children have meaningful relationships with each parent from which they derive benefit.

2. Similarly, other than the evidence adduced about family violence to which I have just referred, no submission was made by the parties about s 60CC(2)(b) of the Act and the need to protect the children from physical or psychological harm through subjection or exposure to abuse, neglect, or family violence. I impute that, although the parties make allegations against the other of past family violence, they each accept there is no present need to protect any of the children from any harm caused by their exposure to it.

3. In such circumstances, the primary considerations specified by s 60CC(2) of the Act are not determinative of, or even influential in, these proceedings.

4. None of the individual factors prescribed as additional considerations under

   
   

   s 60CC(3) of the Act were discretely addressed by the parties.

5. It is important, as was submitted by the mother, for the children to retain and foster their existing relationships with the father. For that reason, I intend to make orders that provide for the twins to spend time with the father from Sunday morning until Tuesday afternoon each week, in expectation the father will do as he deposed and take the twins to day-care on Mondays. It is also my intention to make orders that provide for the youngest child to spend time with the father on two occasions each week, on each occasion for two hours, at times when he will have the twins in his care so that all siblings will then be together. 

6. I also intend to make an order for the changeovers to occur at the mother’s home. That was the mother’s proposal, as set out in Order 5 of Exhibit M2. The father’s solicitor’s submissions expressly adopted that location as a suitable venue for changeovers.

7. Any additional orders I make, restraining the parties from denigration and requiring them to provide one another with information, could hardly be the subject of rational dispute.

Spousal maintenance

1. I turn therefore to the second problem, which pertains to spousal maintenance. 

2. Before any entitlement to spousal maintenance arises, the mother must demonstrate her financial need. In her financial statement filed on 13 January 2015 she deposed to receipt of various amounts from Centrelink, which are ignored for the purposes of these proceedings because s 75(3) of the Act requires the Court to discount any entitlement to social security. She receives no income other than social security. An amount of $100 per week is currently voluntarily paid to her by the father, but that is paid to help support the children. The mother, for the purposes of these proceedings, has no income.

3. She does, however, have considerable expenditure, which she refers to in paragraph 60 of her financial statement. The father deposed he does not accept the veracity of that evidence and I am inclined to agree, at least to some extent. For reasons which have not been explained, the mother has not correctly completed paragraph 60 of her financial statement. She attributes lump sum amounts to each of the expenses without dividing those expenses between herself and the three children. Any difficulty that arises from interpretation of the evidence in such circumstances is the problem of the mother, not the father.  Dealing with those expenses as best I can, I offer the following observations. 

4. Her claim for food of $350 per week for herself and three children, all under four years of age, is excessive. It needs to be reduced by at least $100.

5. Her claim for electricity of $115 per week is excessive. It needs to be reduced by $65 per week.

6. Her claim for children’s activities of $100 per week, in addition to their education expenses, is not maintainable and I ignore her asserted expense for that amount.

7. Her claim for child-minding of $150 per week is not maintainable. It was asserted by her counsel that the parties agreed during their relationship that the mother would be assisted domestically by a nanny for the children, but the father’s solicitor disputes that. I accept there is a factual dispute and the father alleges that no nanny was employed until after separation and just prior to the birth of the youngest child in mid 2014. It would be a surprising outcome for many parents in our community if they were to learn that a court concluded a single parent with three young children could properly claim $150 a week for spousal maintenance to cover the cost of a nanny. That is not an expense which can properly be incorporated within the necessary living costs of a parent. That is not to say, of course, that single parents face difficulty and expense parenting young children, which is quite a different thing. 

8. The mother claims $180 a week for holidays. I excise that claim. Obviously everybody likes to have holidays, but if the parties’ resources will not extend that far it becomes discretionary expenditure.

9. The mother claims $144 a week for education expenses, including fees and levies. According to the parenting orders that I have made, she will not have any expense for the twins’ day-care on Monday. If they go to day-care on Monday, that will an expense borne by the father. She will have the expense of pre-school on Wednesday and day-care on Thursday. On the available evidence, those two fees will amount to approximately $100 a week and, therefore, I deduct the amount of $44 a week from that claimed expense. 

10. I ignore her claim for gifts at $70 a week.

11. I ignore her claim for $15 a week for internet expenses.

12. I ignore her claim for $35 a week for skip bin rubbish removal. 

13. These figures are necessarily approximate, but such deductions amount, in round figures, to $760. Deducted from her claim of $1,689, her residual reasonable weekly expenses amount to $930. As I have indicated, she did not apportion those expenses between herself and the children. Doing the best I can with what I have, I apportion those expenses 50 per cent to her and 50 per cent to the children. I therefore conclude her reasonable need is properly quantified at approximately $465 each week. 

14. Curiously, the father did not make any submission about the quantification of the mother’s weekly financial need.  The most the father said about that issue was at paragraph 104 of his affidavit, where he estimated her reasonable expenses at $820, which I presume to be a weekly figure and is moderately less than the figure of $930 deduced from the mother’s evidence. 

15. Having established the mother’s need, it is now necessary to turn to the father’s capacity to pay. 

16. I will deal firstly with the father’s evidence. His gross income presently approximates $1,100 a week. The figure is computed from his annual gross income of approximately $55,000. The amount he declared in his most recent financial document, being his tax return for the financial year ended 30 June 2014, was a little in excess of $54,000. For ease of mathematics I round it up to $55,000 and impute his current gross income approximates $1,100 a week. His solicitor accepted that approximate calculation. 

17. The mother’s counsel asserted, by reference to Exhibit M1, that the father’s income was in fact considerably greater. I reject that submission. It could be correct, but it is not a permissible inference on the state of the current untested evidence. Exhibit M1 comprises a portion of an affidavit sworn and filed by the paternal grandfather, which relates to partnership income some three to four months ago, being a partnership in which the father supposedly has an interest. I am not prepared to infer, simply because the father drew certain amounts each month from a partnership some three to four months ago, he currently draws the same monthly amounts. There is no basis to presently accept anything other than what the father declared in his tax return, which comprises Exhibit F2. 

18. Turning then to his expenses, he deposed to such expenses in paragraph 83 of his affidavit, which total $1,271 each week.

19. I reject from consideration the payment of rent for the mother in the sum of $346 a week, at paragraph 83(d). That is a voluntary amount he pays.

20. I reject the amount of $30 for gifts, at paragraph 83(n). That is a discretionary expenditure. 

21. He refers to pre-school fees of $44 a week. On consideration, I am inclined to count that as a legitimate expense because he will have the cost of day-care for the twins each Monday, the approximate cost of which is $50. I have allowed the mother to count within her expenditure the pre-school fees for the twins on Wednesday and the day-care for the twins on Thursday.

22. Deduction of the two amounts in paragraphs 83(d) and 83(n) means the father’s weekly expenses amount, in round figures, to $900 per week. There is, therefore, a surplus of income over expenses of some $200 a week.

23. Even though the mother’s need is quantified at $465, I find the father’s capacity is limited to $200 a week, and I therefore make an order for him to pay to the mother spousal maintenance of $200 per week. 

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 February 2015.

Associate: 

Date:  1 June 2015