WINTON & WINTON

[2019] FamCA 730

FAMILY COURT OF AUSTRALIA

WINTON & WINTON [2019] FamCA 730

FAMILY LAW – PROPERTY – final orders made on an undefended basis that achieve justice and equity.

FAMILY LAW – PARENTING – final orders made on an undefended basis in the best interests of the children.

Family Law Act 1975
Family Law Rules 2004

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Winton

RESPONDENT: Ms Winton

FILE NUMBER: BRC 4964 of 2018

DATE DELIVERED: 20 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 20 September 2019

REPRESENTATION

NO APPEARANCE BY THE APPLICANT

SOLICITOR FOR THE RESPONDENT: Mr M-A Huth as duty lawyer

INDEPENDENT CHILDREN’S LAWYER: Ms S Cleeland
Sarah Cleeland Family Lawyers

Orders

1. That all previous orders be discharged.

Suburb H property

1. That the parties do all acts and things and sign all necessary documents forthwith to effect the sale of the property at G Street, Suburb H in the State of Queensland (“the Suburb H property”).

2. That for the purpose of selling the Suburb H property, the following shall apply:

   (a)The property shall be listed for sale by private treaty with such real estate agent as nominated by the Respondent;

   (b)The listing price for the property shall be nominated by the Respondent (provided that the list price exceeds the amount required to meet payment of all necessary selling costs, including agent’s commission and the amount required to discharge the mortgage in favour of Westpac Banking Corporation secured over the Suburb H property);

   (c)The sale price of the Suburb H property will be as nominated by the Respondent (provided that the list price exceeds the amount required to meet payment of all necessary selling costs, including agent’s commission and the amount required to discharge the mortgage in favour of Westpac Banking Corporation secured over the Suburb H property)

   (d)The Respondent must co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

   (e)That upon the terms of this Order being reached for sale of the Suburb H property, the parties will execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation immediately upon its submission to them by the agent or their solicitor.

   (f)The contract of sale will provide for settlement within thirty (30) days of the date of such contract.

   (g)The proceeds of sale of the Suburb H property will be paid in the following manner and priority:

   (i)to discharge the mortgage with Westpac Banking Corporation secured by the suburb H property.

   (ii)payment of the agent’s commission, advertising, auction (if any) or other expenses, if any, payable on the sale.

   (iii)payment of the legal costs and outlays relating to the sale;

   (iv)the balance of the sale proceeds shall then be paid to the Respondent.

   (h)In the event the Suburb H property is not under contract by private treaty within three (3) months, the property will be listed for immediate auction on the following terms:

   (i)the Suburb H property will be listed for auction with the real estate agent as agreed between the parties in writing;

   (ii)the auction will take place within four (4) weeks from the date of this order coming into effect;

   (iii)the reserve price of the Suburb H property will be such amount as agreed between the parties and failing agreement being reached between the parties, fourteen (14) days prior to the auction, then the reserve price will be nominated by the auctioneer;

   (iv)that the parties will be jointly responsible for payment of any auction expense incurred prior to settlement of any contract of sale for the Suburb H property;

   (v)that the Respondent must cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyers;

   (vi)that upon the terms of this Order for sale of the Suburb H property being reached, the parties will execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation immediately upon its submission to them by the agent or their solicitor;

   (vii)the contract of sale will provide for settlement within thirty (30) days of the date of such contract; and

   (viii)the proceeds of the sale will be paid in accordance with Order 3(g) hereof.

Miscellaneous

1. That unless otherwise specified in these Orders:

   (a)each party will be solely entitled to the exclusion of the other, to all other property (inclusive of choses-in-action) and chattels of whatsoever nature and kind in the possession of that party as at the date of these Order and that, for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the banks record;

   (b)policies are deemed to be in the possession of the owner and superannuation entitlements are deemed to be in the possession of the person who is named as the worker or whose age or working future provides the conditions for payment out of such entitlements; and

   (c)each party will be solely liable for and indemnify the other against, any liability in their name or any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

Execution of documents

1. That in respect of these Orders and the requirement of the parties to execute documents, the parties shall execute all documents necessary to put into effect the terms of these Orders within fourteen (14) days of presentation of same by the other party or the solicitors of the other party.

2. That if either party fails or neglects or refuses to execute such documents, pursuant to section 106A of the Family Law Act 1975 a Registrar of the Family Court is hereby appointed to execute each and every document on behalf of the defaulting party.

Parenting

1. That the children, X born … 2010 and Y born … 2015 (“the children”) live with the mother.

2. That the mother have sole parental responsibility for major long-term issues with respect to each of the children.

3. That there be no time nor communication between the children and the father unless agreed to by the mother or ordered by the Court.

Overseas travel and passport for the children

1. That the mother be permitted to solely sign, apply for and/or renew, without the consent of the father, any Australian travel document which permits:

   (a)the children to have an Australian travel document including but not limited to an Australian passport and visa; and

   (b)permit the children to travel internationally.

2. That the mother hold any passports and visas issued for the children.

3. That the mother be permitted to travel overseas with the children from time to time and be permitted to leave the Commonwealth of Australia with the children from time to time notwithstanding the consent of the father is neither obtained nor required.

4. That the father provide the mother with an email address he can be contacted on.

5. That the mother advise the father via the email address provided by him at least four (4) weeks prior to her and/or the children’s departure from Australia.

6. That the mother will provide the father with details of the destination and location of travel with the children, the dates of intended departure and return to Australia.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winton & Winton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4964 of 2018

Mr Winton

Applicant

And

Ms Winton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. For the sake of the record, in respect of the property aspects of this matter, at a time after the husband had filed a Notice of Discontinuance but, interestingly, notwithstanding that Notice of Discontinuance having been filed on 26 April 2019, he caused solicitors and Counsel to appear on 21 June 2019 before Registrar Brooks.  Interim Orders were made by consent in relation to the property aspects of this matter.  The orders provided essentially for the former matrimonial home at G Street, Suburb H to be sold and for the net sale proceeds to be paid to the wife and also provide for what might usually be seen to be “cover-all” orders relating to other property, superannuation, personal property and liabilities (see order 3). To enable documents to be executed, paragraphs 4 and 5 provided a mechanism under section 106A of the Family Law Act 1975 (“the Act”).

2. In the absence of reasons of the Registrar, I am uncertain why the orders were not made final on that occasion.  Certainly, they were within the power of the Registrar.  I am, however, prepared to infer that the registrar would not have made the orders on an interim basis unless she was satisfied they were just and equitable, as that is her obligation.  For my part, I am prepared to make the interim orders a final order as the mother, I understand, through the Legal Aid duty lawyer today, Ms Huth, indicates is her position because:

   a)it does seem to cover all the property pool, which is really modest;

   b)the effect of the order is that the wife retains her very modest superannuation – and also the net proceeds are the only substantial asset – together with other items in her possession, power or control, including motor vehicles, superannuation and the like; and

   c)it is clear on the untested evidence that the husband, who is a health professional claiming to have an income of over $500,000 gross per annum, is in a significantly superior financial position than the wife, who has the day-to-day care needs of the children in this case, X and Y, and those children have some significant needs, as I will refer to later.

3. On this basis, it might have been appropriate to consider whether there be a splitting order to give justice and equity to this case of the husband’s superannuation entitlements which, in his Financial Statement filed on 1 November 2018 with his then-lawyer Mr C preparing it apparently, he estimated had a value of $252,481.  I suspect that the wife wants finality.  It may have been that the issue of a splitting order was not raised before the Registrar.  At least, that is an inference I could draw from the way that clause 3(b) is described, namely, that the policy is to be deemed in possession of the owner and superannuation entitlements are deemed to be in the possession of the person who is named as the worker, all reflects that the wife was, in a sense, abandoning interest in the husband’s superannuation.

4. I note, just for completeness, that the wife’s Financial Statement reveals a very modest superannuation entitlement of $28,000. However, where parties have consented to orders where a party has the benefit of legal advice but, more importantly, where, for a whole range of reasons in this case, there is a desire by the mother, and it seems the father, to bring finality as set out by section 81 of the Act, I am prepared to make the orders on the basis that, although not in any way generous to the mother, they are within the range of being just and equitable.

5. In the circumstances, the order will be that the property order made 21 June 2019, on an interim basis by consent, be made a final order.

Parenting

1. I am asked to make final orders on an undefended basis in respect of two children, X, who is now aged nine years and Y, who is now aged four years.  They live with the mother.  They have actually lived primarily with the mother since the mother, who is a Respondent in these proceedings, and the father, who is the Applicant in these proceedings, separated in June 2016.  The evidence before the Court is that the parenting relationship between the father and the mother has entirely broken down.  On an undefended basis, I am unable and should be cautious about making critical findings that cannot be tested in the usual way, however I take into account the following factors.

2. The father, who is a health professional working in a South-East Queensland hospital, acknowledges in a family report prepared by Ms B, filed in the Court on 5 October 2018, to some examples of physical abuse of the mother in the presence of the child and, it seems, even if I am being generous, over-disciplining of the oldest child, X and/or, as well, the youngest child, Y.  The evidence of Ms B reveals that the children have witnessed family violence between the parents, sadly.

3. Although I am not prepared to find that the only reason why X has the raft of very significant mental health issues he does is the conduct of the father alone – it may be that some are innate to his personality – that he has enormous mental health issues is not in dispute and, at the age of nine, is, I am sure, for the mother and hopefully the father, quite distressing.

4. This little nine year old has demonstrated, as his Psychiatrist Dr D identifies, symptoms in relation to paranoid ideation; attempted suicide; uncontrollable episodes of rage, expressed verbally and physically, both towards his mother and at his school.  He has been diagnosed by his treating Psychiatrist as having major depression of childhood and trauma-related personality disturbances.  The mother can only be admired for the manner in which she has devoted herself to the increasing and continually changing needs of her son under such significant stress, including financial stress.

5. The little boy Y, perhaps because of his age and perhaps because – his slightly different personality, does not demonstrate all the psychiatric profile that X does; however, Y has himself been diagnosed with a condition that affects growth and development and causes speech, language and intellectual impairments and difficulties, swallowing impairments and psychological and behavioural difficulties.

6. Again, the management of these children, to which the mother is devoted, is not for the fainthearted.  It is a sad reality of this case that the father, although a health professional earning, it seems, close to $500,000 gross per annum, has not been able to effectively support, manage and, at times when he had, in the earlier days, the care of the children, control the behaviour of the children.

7. He has, to some degree, left it all to the mother whilst, at the same time, as the evidence, at least suggests, not taking full responsibility for his actions or the consequences of some of his actions.  Not surprisingly, the very experienced and competent Independent Children’s Lawyer, Ms Cleeland, sought to examine why that might be the case for a clearly intelligent person who is still practising in the public health area in a very sensitive specialty, particularly to women.

8. Dr F was retained by the ICL and conducted a psychiatric examination of the father.  I have read his findings set out in the report filed on 22 March 2019.  It is in the course of those findings that even the father was prepared to acknowledge to another health professional that he had at times lost control of his actions, and they had been directed to the mother and to the children.  Although there is some suggestion of some continuing monitoring by the medical board, I am not in a position, on the evidence I have, to disagree with the ultimate assessment of Dr F that:

   “From a DSM-IV perspective, Mr Winton does not suffer from a constellation of symptomology sufficient to warrant a major psychiatric Axis diagnosis.  By his own admission he accepts the diagnosis of personality traits particularly narcissistic, and in the absence of any corroborating evidence, I am accepting of this.”

9. Dr F indicated that he did not believe the father would benefit from psychological counselling:

   “…as he has to deal with the antagonism expressed towards him by his son, which is a source of significant distress to him.”

10. Dr F further said that:

    “…I believe it would be helpful for Mr Winton to work with a Psychologist…”

11. Dr F said he did not believe the father requires a treating psychiatrist or psychotropic or antidepressant medication.  Within this background, and, no doubt, I am prepared to accept, in circumstances where the father may have found that his opportunity to spend time with the children – which has since ceased, generally because of the absolute, unequivocal resistance expressed by X and now to a lesser degree followed by Y – filed a Notice of Discontinuance in respect of all applications earlier this year.  He has not appeared before the Court today, which was the day appointed by a Registrar of the Court for the hearing of the disputed parenting and property applications, to be heard on an undefended basis.

12. I have earlier today dealt with the property application and made final orders.  The ICL Ms Cleeland and Ms Huth, supporting the mother as the duty lawyer, have assisted the mother, and Ms Cleeland has also signed a minute of order.  On a final basis, it provides for the children to live with the mother; for the mother to have sole parental responsibility and for there to be no time or communication between the children and the father unless agreed to by the mother or as ordered by the Court.

13. Today the mother indicated that without relying upon an order for sole parental responsibility, she would like the opportunity in the future, when her financial situation improved, to contemplate overseas travel for the children.  I was told that the father holds the oldest boy’s passport and, in fact surprisingly, holds the mother’s passport.

14. As a result of some exchange between myself, Ms Huth and Ms Cleeland earlier today, in addition to the orders that had been the subject of earlier indication to the Court as being areas of consent, orders 5 to 13 have been agreed to.  That relates to overseas travel.  A note has been given to the father, as I think is appropriate, as well as to acknowledge that the mother now uses a name other than that set out in the initial application.  I am satisfied that the orders I am being asked to make on a final basis are in the best interests of X and Y.  I make the orders on a final basis, in accordance with the draft signed by the parties, that is, the Independent Children’s Lawyer and the mother, initialled by me and placed with the papers.

15. To the extent that there may have been some reservation by the Court about the inclusion in these final orders of an order for travel overseas (not relocation), and with the requirements for notice to be given to the father, I am satisfied that procedurally the orders can be made today.  Of course, the father is entitled, as a matter of law, under the Family Law Rules 2004, these orders having been made in his absence, to seek to set aside the orders.  But any such application to do so would require an exercise of discretion to allow the application to be dealt with.

16. Of course, if there is a material change of circumstances in the future, and subject to the principles of Rice & Asplund (1979) FLC 90-725 and subsequent authority, the Court could contemplate an application to vary the parenting orders made. Until then, the mother deserves enormous credit for the way in which she carries on the duties of a parent, a sole parent, to these two young boys with significant issues confronting them. She can be satisfied that the matters are at an end. I make the orders which appear at the commencement of these Reasons, which I regard as in the best interests of X and Y.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 September 2019.

Associate: 

Date:  28 October 2019