Yates and Yates
[2009] FamCA 1023
•27 October 2009
FAMILY COURT OF AUSTRALIA
| YATES & YATES | [2009] FamCA 1023 |
| FAMILY LAW – CHILDREN – Interim – with whom a child lives – with whom a child spends time – with whom a child communicates – a second interim hearing in circumstances of dynamic changes in the circumstances of the parties FAMILY LAW – PROPERTY – Interim/partial property orders – second application need for more than one partial property order prior to final hearing |
| Family Law Act 1975 (Cth) |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 Bassi & KB Sales Force Specialists Pty Ltd v Maas [1989] FLC 92-867 |
| APPLICANT: | Ms Yates |
| RESPONDENT: | Mr Yates |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
| FILE NUMBER: | HBC | 506 | of | 2009 |
| DATE DELIVERED: | 27 October 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 21 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Trezise |
| SOLICITOR FOR THE APPLICANT: | Andrea Trezise |
| COUNSEL FOR THE RESPONDENT: | Mr Ayliffe |
| SOLICITOR FOR THE RESPONDENT: | John Munro |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
ADDITIONAL PARENTING ORDERS
Interim parenting order’s numbered 4 and 5 made 1 July 2009 and order 8 made 20 July 2009 are vacated. The remainder of the orders made on those days remain in place and enforceable.
UNTIL FURTHER ORDER
The child, … (born … January 2004), live with the wife as follows:-
a.from 9.00am Saturday 31 October 2009 until 10.00am Sunday
1 November 2009 (supervised);b.from 10.00am Saturday 7 November 2009 until 2.00pm Saturday
7 November (unsupervised);c.from 10.00am Saturday 14 November 2009 until 6.00pm Sunday 15 November 2009 (supervised);
d.after school Friday 4 December 2009 until the commencement of school Monday 7 December 2009 (supervised);
e.each Wednesday 9.00am to 3.00pm (supervised except for Wednesday 25 November 2009, 2 December 2009 and 9 December 2009);
f.Such other times as are agreed in writing between the parties.
g.At least one of either, Mr R, Ms H, Mrs B or Dr B supervise the time the child lives with the wife according to these orders where marked ‘supervised’ AND IT IS ORDERED that when the child spends overnight time with the wife the child pursuant to these orders, it be in a home occupied by one or other of the supervisors.
The husband to deliver the child and collect the child from such supervisors address when the time with the wife is to commence. In terms of the times that the child is with the wife unsupervised, the child to be delivered to a supervisor and collected from a supervisor reasonably nominated in advance by the wife.
Both parties sign all documents and do all acts to require and request the Department of Health and Human Services, Disability, Child Youth and Family Services at Launceston to provide any feedback with regard to the counselling of the child to the Independent Children’s Lawyer and direct that any advice and/or direction with regard to the continuation and regularity of the counselling for the child to pass through the Independent Children’s Lawyer.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Police Family Violence Order made in April 2009 is varied by the addition of the following words:-
This order does not prevent the mother from spending time or living with the child according to any orders made under the Family Law Act 1975 (Cth) and/or any written agreement entered into between the parties with regard to the child living with or spending time with the wife.
The wife continues counselling as recommended by Ms D.
The wife continue to undertake treatment and counselling as recommended by Dr K, Dr N, Dr C and Ms H and give written authority to such health care providers to inform the Independent Children’s Lawyer if treatment is rejected, refused or any appointments are missed. Such authorities to be given within 7 days from the date of this order and within that time provide a copy of the authorities are forwarded to the Independent Children’s Lawyer.
IT IS DIRECTED
These interim parenting proceedings are adjourned to 9.00am on Friday 11 December 2009 at Launceston.
Leave be given for the representatives of the parties to attend by telephone if they wish and provided they give notice to the Court and the other parties.
Leave be given for the Independent Children’s Lawyer and/or the parties to provide copies of the Children’s and Parents Issues Assessment and Single Expert Report to all of the treating health professionals of the wife including but not limited to Dr N, Dr C, Ms H, and Dr K.
A family consultant prepare a short updated family report as to the nature and effect of the additional time the child spends with the wife pursuant to these orders and having regard to the report of the wife’s treating psychiatrist and the single expert.
The Independent Children’s Lawyer provide a copy of these orders and the reasons upon which they are based to the Principal of G School within twenty one (21) days from today’s date.
The Independent Children’s Lawyer provide a copy of the Children’s Parents and Issues Assessment Report dated 21 September 2009 and the report of
Dr A dated 6 October 2009 to the psychologists and therapists caring for the child at the Children’s and Young Persons Program within twenty one (21) days.The parenting proceedings be adjourned to 9am on Friday 11 December 2009 at Launceston and the Independent Children’s Lawyer and/or Counsel for the husband are given leave to appear via telephone.
IT IS NOTED
There has been no specific general order for parental responsibility made pursuant to these or any previous orders regarding the child and as such each of the parents of the child has parental responsibility for that child (s61(C)(1) Family Law Act 1975 (Cth)).
PROPERTY
UNTIL FURTHER ORDER
By way of partial/interim property order the parties sign all documents and give all authorities to enable the monthly surplus of the income from the family trust of $1,116.00 to be distributed as to one third to the wife and two thirds to the husband.
BY CONSENT the parties do all acts and sign all documents to cause payment out of the available $98,000.00 held by the Bank of Queensland to pay the following liabilities:-
- KPMG $4,615.00
- school fees $14,586.00
- insurance $6,219.00
- Medical insurance $859.05
- Citibank Silver credit card $6,091.00
Total $32,370.05
By way of partial/interim property order the parties sign all documents and give all authorities to distribute the balance of the available $98,000.00 less the sum of $32,370.05 (vis $65,629.95) as to $43,753.00 to the husband and $21,876.95 to the wife.
IT IS DIRECTED
The parties forthwith contact the Registrar and request an appointment for a conciliation conference on the next reasonably available date.
IT IS NOTED
The parties have agreed to the sale of the former matrimonial property at S. The parties believe they will agree to the sale price. In the event that the parties are unable or unwilling to agree leave be given to the parties to have the matter listed before me on short notice for determination of that issue.
The parties will either agree to a valuation of the property a G Street or agree to its sale and the parties will each inspect the documents provided by the other to indicate whether there needs to be any forensic examination of the funds expended in recent times.
GENERALLY
Costs of all parties be reserved.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Yates and Yates (Interim Parenting and Property) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 506 of 2009
| MS YATES |
Applicant
And
| MR YATES |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Yates and Mr Yates were married in September 1989 and separated in February 2000. They had three children, P aged eighteen, F, aged 5 almost 6 and L who passed away in October 2000 aged almost 6.
In June 2009 the wife filed an application asking the court for interim and final property and parenting orders. The husband opposed the wife’s applications and sought different orders. On 23 June 2009, after a contested interim hearing, I made orders that both children be independently represented (that order in so far as P was concerned only operated until her eighteenth birthday in July 2009). I made an interim/partial property order for payment of about $11,000.00 to the wife and a similar sum to the husband.
After the appointment of the Independent Children’s Lawyer interim parenting proceedings were heard on 1 July 2009. I made an order that F primarily live with the husband and live with the wife (supervised) each Saturday and each Wednesday. At the request of the parties I declined, at that time, to make an order for equal shared parental responsibility.
The supervision of the child lived when he lived with the wife was to be undertaken by one or other of three nominated responsible friends of the wife.
The wife has now come back to the court seeking further interim orders. In the factual, changing and dynamic circumstances of the parties, their emotional health, the emotional health of their children and the dynamic circumstances of their property holdings and financial needs, a further interim hearing on both property and parenting is necessary.
In terms of F, the wife seeks orders that he live with her for half the time and such time not be supervised. She also seeks an order that F ceases attending counselling under the Tasmanian State Children and Young Persons Program (CHYPP). This apparently arose after a Police Family Violence Order was made in early 2009.
The husband opposes that arrangement and submits that F should continue attending counselling with CHYPP and that the supervision should remain in place as he has concerns that the child might be at risk of harm in the unsupervised care of the wife. To the husband’s credit, he agrees that the child should spend more time with the wife but not as much time as is sought by the wife.
The parties sold a property at H Street earlier in 2009 and there is available from the proceeds of sale of that property a sum of money (part of which is being held by the Bank of Queensland). The Bank of Queensland are now prepared to release to the parties $98,000.00. The wife requests interim property settlement in terms of payment of some bills and distribution of the balance of those funds as to one half to the husband and one half to the wife by way of interim property settlement.
The husband opposes that application and seeks orders that a number of bills are paid, that a sum of about $19,000.00 is paid to the wife and a balance to him, he having the primary care of F and he claims that P (now over 18) lives with him most of the time and he has her primary care. There is no issue that P is an adult child but who is attending high school. There is an issue as to what care is provided by the husband and what care is provided by P’s maternal grandparents and others.
Parenting issues
The proceedings relating to F are marked by the twin pillars which are the foundation of parenting jurisprudence in Australia; that is the benefit of a meaningful relationship between the child and his parents and the need to protect a child from abuse, neglect or violence.
There is no issue in these interim proceedings that there is a benefit in F having a meaningful relationship with the wife and the husband.
The husband raises serious concerns about risks to F in the wife’s unsupervised care. He says that F has been traumatised by events which occurred in the weeks and months prior to separation and further that the wife constitutes a risk of harming herself and/or F whilst he is in her unsupervised care.
The wife relied upon her application filed 16 October 2009 and her affidavits filed 12 June 2009 and 16 October 2009. In addition she relied upon affidavits of Dr B, Mrs B and Ms H filed 1 July 2009 and two affidavits of Dr K (a psychiatrist) filed 14 October 2009 and 21 October 2009. The wife relied upon an affidavit of her counsellor, Ms D filed 2 October 2009.
The wife tendered and relied upon a letter from Dr A (a single expert psychiatrist appointed for the purpose of these proceedings) dated 16 September 2009. In that letter Dr A observed:-[1]
I have now examined both parents with [F] and found that prima facie, neither of them suffers from a mental disorder. However, the reported incidents involving the mother require adequate explanation, and I have been made aware by both parties, although from differing points of view, the involvement of their daughter and the maternal grandmother.
[1] Exhibit M1.
As a consequence of that letter Dr A saw P and the maternal grandmother. The letter must be read in conjunction with Dr A’s later report.
The wife tendered and relied upon a letter[2] which the husband had sent to the Principal of G School setting out what he said was a “safety plan”.
[2] Exhibit M2.
As this was the subject of some discussion by the parties’ legal representative but not the subject of a request for interim orders. I will, however, direct a copy of the orders and the reasons to the principle of the school so that the school is aware of the present status of the parties in respect of parental responsibility and residence. Hopefully this may head off another application.
For the benefit of the parties and the school authorities I note the following. In the first interim hearings in June/July 2009 and in these proceedings neither party actively sought an order for equal shared parental responsibility. Having regard to the allegations of violence I was not required to make an order for equal shared parental responsibility. When the matter came before me on 21 October 2009 both parties sought and I left parental responsibility as provided in s61C of the Family Law Act 1975 (Cth) (“the Act”), that is:-
61(c)each of the parents of a child who is not eighteen has parental responsibility for that child.
The wife complained to the court that she was not able to take the child to school events. I can see nothing in the Police Family Violence Order made 17 April 2009 (which remains in force for twelve months) which prevents the wife attending school on school occasions and the provisions of s61C of the Act entitle the wife to be provided with information from the school which would normally be available to parents.
The school can take whatever steps it considers appropriate, within the school environment, to protect a child from the conflict that exists between parents when marriages break down. So that there is no misunderstanding I give leave for the parties to make a copy of these reasons and the orders made consequent upon these reasons to the Principal of F’s school.
The husband had filed a response on 20 October 2009 setting out the orders he sought. He filed and relied upon his affidavits filed 23 June 2009, 29 June 2009, 15 October 2009 (in part) and 19 October 2009. In addition he relied upon an affidavit of his daughter P filed 14 October 2009 and an affidavit of his sister filed 14 October 2009.
At this point I will deal with the affidavit of P. It is unfortunate that father and the Independent Children’s Lawyer filed and/or sought to rely upon evidence of this teenage adult child. The use of such evidence must be treated as a last resort and where the issue is of significant relevance and there are no alternatives. The use of such evidence inevitably polarises such children to one side or the other, and perhaps without the maturity to consider the long term impacts of taking such a step. There are sometimes relevant and cogent reasons to file such material and I make no positive or negative finding in that regard at this time.
In saying this I reflect upon the principles for conducting child related proceedings set out under s69ZN of the Act. The parties and the Independent Children’s Lawyer should think long, hard and carefully about whether P ought to be called as a witness in these proceedings and whether her evidence is of such a nature as would be absolutely necessary.
The impact of a young person of that age giving evidence on behalf of one parent or another will resonate through this family well into the future and may have a significant impact on F in terms of his interaction with the parties in years to come.
The evidence of P was relevant and provided her perspective. It provided useful background and history. However, in the context of the limited scope of the present interim hearing it was not determinative. This determination rests heavily on the evidence of F’s parents and the experts.
The essence of Division 12A is to enable a court to have sufficient evidence to make decisions but not allow the process of the determination to destroy or undermine the family structure to the detriment of the child and his parents and sister.
The husband’s solicitors relied upon paragraphs 533 and 534 of his 91 page affidavit filed 15 October 2009. Those paragraphs deal with an email allegedly from the wife to the husband in late September 2009 exhibiting her continuing deep bitterness to and of him following the death of L over nine years ago.
As to the remainder of that affidavit I note that this was to be an interim hearing. I note that that affidavit contained some ninety one pages of typed material which was headed “Notes formulated from diary, SMS messages, call data, message bank, reporting’s and discussions with family from July 2008 to 15 October 2009”.
The affidavit was prolix, verbose and argumentative. Many of the comments were of a submission nature and would not have been admitted in evidence. The affidavit was prepared by the husband and filed on his behalf without regard to the impact it would have upon the wife, the Independent Children’s Lawyer and the court. Hours must have been spent reading that document which was a waste of effort, time and expended unnecessary cost. If such an affidavit is sought to be filed in the final hearing it is likely to be rejected and costs may be a consequence.
The husband relied upon an affidavit of the maternal grandmother filed
29 June 2009 but did not rely upon her affidavit filed by him on 14 October 2009.The wife raised objection to that affidavit but it was not pressed. The wife also raised objection to the material contained in the affidavit of P. I have considered all of that material and have given such weight to it as I felt was appropriate.
The husband referred to the affidavit of Ms D filed 1 July 2009, I will deal with that submission later in these reasons.
The Independent Children’s Lawyer tendered in evidence a copy of the Police Family Violence Order and two letters between the Department of Health and Human Services and the Independent Children’s Lawyer. That letter contained a counselling report from a provisional psychologist at CHYPPS issued in October 2009 and a letter from the Manager of CHYPPS (north/north west Tasmania) dated 21 September 2009.
The Independent Children’s Lawyer relied upon affidavits of the supervisor Ms B, Mr R and Ms H all filed September 2009. He relied upon a Children’s and Parents Issues Assessment prepared by a family consultant dated 21 September 2009 together with a report dated 6 October 2009 of Dr A, the independent psychiatrist expert.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[3] for the child. The section provides as follows:
[3] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(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;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary consideration set out in s60CC(2b) goes to the core of the decision, although it must be taken into account with the additional considerations under s60CC(3).
This is an interim hearing which is likely to only cover a short period of time. I have had regard to the approach suggested by the Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 were at paragraph 82 it said:-
82. In an interim case that would involve the following:-
i)identifying the competing proposals of the parties;
ii)identifying the issues in dispute in the interim hearing;
iii)identifying any agreed or uncontested relevant facts;
iv)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
v)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
vi)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
vii)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
viii)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
ix)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
x)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
DISCUSSION
The conflict in these proceedings arise over the tragedies and misfortunes which have afflicted this family, in particular the wife over the last decade or so.
Subsequent to P’s birth the wife fell pregnant with twins. One of the twins died in the wife’s uterus at about 12 to 13 weeks, the other twin was L.
After L was born it was discovered that he had suffered a massive intracranial haemorrhage. L was blind and would never be able to walk or talk. To this family, at birth he was small but perfect. There were developmental challenges and they were met and dealt with. In the words of the wife “he chose us, he could not have had better parents”. As he became older L commenced having seizures, and as time passed they increased in regularity. In October 2000 he had massive seizure and needed medical attention, an ambulance was called but took 40 minutes to arrive. On the day before his sixth birthday L passed away. He was deeply loved by his family. The emotional and psychological impact of his death has tormented this family from that moment in time. Those consequences continue and are profound.
In 2003 the wife again fell pregnant and F was born in January 2004. In the material before me it seems likely that his primary attachment figure was or is the wife.
In March 2007 the wife was diagnosed with Hodgkin’s Lymphoma. She says she had radical treatment over about eight months in 2007. She is presently free if this cancer.
In 2008 P had health difficulties, with which she and her parents have struggled since that time.
There is a real issue as to what happened with the wife’s mental state in late 2008 and the first few months of 2009. The wife’s evidence is that she was suffering with grief but well able to parent F and that the husband was endeavouring to alienate her from the children and her family to “win custody” of F and that whilst she had unresolved issues of grief relating to L and had some anger outbursts her mental health was not as bas as asserted by the husband.
The husband’s evidence was that the wife was violent to him, had threatened suicide and had been acting for some time “completely out of character”.
The single expert observed that:-
[the wife] specifically and spontaneously admitted incidents of verbal abuse of her daughter, but made no spontaneous comment on allegations of family violence.[4]
[4] Page 7 single expert report dated 6 October 2009.
The husband, in his interview with Dr A, described the wife has having been “the rock of our family, she was the motor vehicle, I was the fuel”. He provides evidence to the single expert of the wife in recent years becoming less and less able to cope and suffering personality changes after her diagnosis of cancer. He says that the wife assaulted him, threatened to leave and kill herself and take F with her. He reiterated that this was totally out of character for the wife. He described her rage and attack and said that the wife endeavoured to get out of a window to commit suicide. He describes the verbal abuse of P by the wife.
Added to this was that the parties had a large contract with Telstra which was lost and the parties were left under great financial stress. There is no doubt that these proceedings are adding to that stress.
I note the comment made by the single expert when he said:-[5]
I concluded after interviewing the two parents of [F] that neither of them showed any evidence of a mental disorder in their mental state, although the reported behaviour of [the wife] required explanation and some aspect of a medical history needs to be reviewed. Despite the level of conflict in this present case, there is evidence that each retained a considerable regard to the other and an appropriate concern for the surviving children of the marriage.
[5] Page 11 single expert report dated 6 October 2009.
It is in the context of this interim parenting application with this history that I need to make a number of interim decisions.
·Will the CHYPPS counselling stop or continue?
·Will the supervision of F’s time with the wife continue?
·What additional time will F spend with the wife?
The wife asks me to make orders stopping the husband from taking the child to counselling at CHYPPS. She wants the child counselled by someone independent. The wife’s says she believes that the husband is using these sessions to alienate F from her.
The counsellor/s of F has only seen the husband and have taken their history and formed their views based on that material. The counsel for the Independent Children’s Lawyer quite properly observes that the assessment of F by the counsellors is not a clinical psychological assessment but is based on reports from the husband, including evidence that the child may be showing signs of post trauma stress and the reaction of the child and how the child feels.
The report from CHYPPS is that the child presented as a “likeable curious boy who engaged well with the therapist”.
They observe that the child has had, as at 21 September 2009, seven counselling sessions and has displayed progress with his ability to verbally express himself and talk about emotions. The counsellor recommended that it continue for the time being and expressed a view that it is “not deemed within the best interests of the child to change therapists”.
The counsellors confirmed that it is not their role to investigate whether there was any incident of family violence nor is their role to engage with “alleged offenders”.
It was submitted to me by counsel for the husband that his client no longer attends these sessions. The sessions are with the child and therapist only.
Having regard to the material provided by the Independent Children’s Lawyer including the counselling report and letter I do not, at this time, regard it as being in the best interests for the child to have this counselling terminated. The child has been seeing these counsellors for some time. From the untested evidence of the counsellors they are having a positive impact on the child and there is no evidence that it is ‘anti wife’. It is a concern that the counsellors will not engage with the wife, hover provision of the single expert report and the Child and Parent issues assessment may assist them in better understanding of the dynamics of the conflict. I will also direct that a copy of the single expert’s report and the Children’s and Parents Issues Assessment be provided to the relevant psychologist at CHYPPS.
I understand the wife’s concerns bearing in mind comments made by the family consultant with regard to some of these comments appearing to be somewhat “contrived and adult” in context, the full nature of which will no doubt be determined if this matter comes on for a full hearing.
I raised with counsel for all parties during the course of the hearing whether I should give the Independent Children’s Lawyer parental responsibility as to the question of this counselling. That approach was supported by the wife, opposed by the husband and accepted by the Independent Children’s Lawyer (subject to an indemnity in relation to any expenses).
On reflection I am not inclined, at this stage, to make such an order as it is of a very serious nature. I will, however order that both parties direct that CHYPPS give feedback to the Independent Children’s Lawyer and any changes they seek must be made through the Independent Children’s Lawyer who would seek consent of the parties or otherwise seek orders of this Court.
Finally I am concerned about the impact on the child of the varied ‘experts’ who are seeing him. Division 12A of the Act and in particular s69ZA impose duties on courts to consider the impact of proceedings on the child.
In all of the circumstances I will leave the counselling in place.
The remaining issues are how much time F spends with the wife and whether such time ought to be supervised. There the husband is concerned for F’s safety if the supervision of his time with the wife is removed.
There is general agreement that F spend more time with the wife. The issue is how much time it should he spend with his mother.
This year F spends four days a week at school, he does not go to school on Wednesdays. At present he is seeing the wife on Wednesdays and Saturdays and the wife seeks equal time. Having regard to all of the evidence and in particular the concerns, comments and evidence of the family consultant and Dr A, it seems to me, at this stage, that equal time is not an immediate option.
There is no doubt that there is a benefit of this child having a meaningful relationship with the wife, she has been his primary carer for most of his life until the early months of 2009. The family consultant notes the following:-[6]
He [F] gave the impression of dearly loving his mother and her company but being very confused as to what was actually happening. His experience with her and what he has been told it would seem do not accord. Her highly agitated emotional state is a worry to him and seeing the calmness of his father may provide for him some respite. What can be said, it is considered [F] has significant attachment to his mother and the sooner he can enjoy time with his mother that resembles previous time with her, the less confused and perplexed he will be.
[6] Page 5 of the Children and Parents Issues Assessment dated 21 September 2009.
The family reporter goes on to say:-[7]
[F] needs his mother and needs to have an ongoing relationship with her. The sooner this relationship is restored the better it will be for [F].
[7] Ibid.
It is apposite to note at this time that when I raise the question of additional time but with appropriate supervision during the course of the interim hearing, the husband, who was present in court, vigorously nodded his head in terms of the additional time and in terms of the need for supervision.
The evidence of P is troubling at a number of levels, not the least of which is the nature of the relationship between her and her mother and her present opinion of her mother.
The sooner that some more time is provided with F is the better bearing in mind, albeit untested, evidence of the family consultant and to the large extent the view of the parties themselves.
I am conscious that this may mean another short hearing in terms of parenting to deal with what happens with F’s time with the wife over the December/ January school holiday period (including Christmas) and for school in 2010 when F will be attending full time rather than four days per week.
As a guide to the parties and subject to the wife’s health being dealt with as referred to later in these reasons, and subject to me being satisfied that the child will be safe in the care of the wife, there appears to be good reason for the child to spend at least each alternate week over the school holiday period (with or without supervision depending on further evidence) and in the following year each alternate weekend commencing after school Friday to the commencement of school Monday plus some other time. This would may be a reasonable approach between the commencement of the next school holiday period and the final determination of this matter whether by hearing or by agreement. That is not to say I have formed any final view as to what should happen in terms of F’s primary care after a final hearing or a further interim hearing.
For the reason set out I intend to put in place the following arrangement:-
The child live with the wife as follows:-
(a)from 9.00am Saturday 31 October 2009 until 10.00am Sunday
1 November 2009 (supervised);(b)from 10.00am Saturday 7 November 2009 until 2.00pm Saturday
7 November (unsupervised);(c)from 10.00am Saturday 14 November 2009 until 6.00pm Sunday 15 November 2009 (supervised);
(d)after school Friday 4 December 2009 until the commencement of school Monday 7 December 2009 (supervised);
(e)each Wednesday 9.00am to 3.00pm (supervised) except for Wednesday 25 November 2009, 2 December 2009 and 9 December 2009.
Supervision
The husband submits that all time the wife spends with the child should be supervised. He says that the child is at risk of harm by way of the wife acting impulsively and hurting herself and/or the child or that she may be verbally abusive of the child. The husband sets out his version of events over the last year or so as a basis for his concerns.
The husband asserts the wife assaulted both he and P. The husband says that one of the threats made by the wife to harm herself (which is denied by the wife) included an implicit threat that she would take F with her. He claims that the evidence shows that the wife is unstable and volatile and has assaulted him and used abusive, offensive aggressive language to him and P in the child’s presence. He says that she endeavoured to climb out of a skylight to commit suicide and sets out a series of events which he says started in about July 2008.
The husband says that earlier in that year the wife became remote and her behaviour was such that he became concerned enough to keep a diary. He sets out his version of the events on 14 February 2009 and the steps he took subsequent to that.
The husband alleges that the wife said to him that she “can’t stop hurting the children”. His evidence is that the wife’s behaviour is impulsive and presents a danger to the child if her time with the child is unsupervised.
The husband relies upon the untested evidence by the wife’s mother. He evidence sets out violence, anger and depression of the wife. The wife and her parents are presently estranged although I note that some of the information upon which the wife’s mother relies is information which was told to her by others. Her evidence is nonetheless concerning.
P provided an affidavit setting out her perceptions of what had happened over recent years. I have had regard to that untested evidence.
The expert evidence commences with a report from Dr M dated 24 April 2009 who at that time considered that the wife was suffering from pathological grief from the death of L. He said there was evidence that the wife suffered from depression which was possibly only partially treated. He observed that the wife said things indicating possible risk to herself and the family but his view was that they appeared to stem from anger, frustration and a sense of helplessness. Dr M also observed that the wife was aware of “her difficulties but conveyed a sense of minimising her emotional outbursts to show partial insight about her current situation”.
That particular quotation was relied upon by counsel for the husband as part of the material which would base a decision for continuing supervision. However, Dr M goes on to say:-[8]
Her risk currently does not appear to be significant either in relation to herself or her children. Unfortunately this view is not shared by the rest of the family”-.
[8] Page 3 of Annexure C of the affidavit of the wife filed the 12 June 2009.
Counsel for the husband also referred me to an affidavit of the wife’s treating psychologist Ms D filed 1 July 2007. There is no issue about Ms D’s qualifications and that she is a treating psychologist for the wife with whom the wife has continued an association. In June 2009 Ms D recommended supervision. This did not relate to concerns that the child was at harm from the wife but as a way of reuniting the child with the wife after three months.
In her most recent report dated 12 September 2009 Ms D says of her observations of the wife:-
there is no reason to suggest that she cannot care with [F] on an unsupervised basis and there should be no reason why she can’t see [F] at school.
Ms D is quite positive in terms of the wife’s involvement with F and expresses a view (albeit untested) that the child is safe in the care of the wife.
The wife has sought treatment from a psychiatrist, Dr K. There are issues about the qualifications which I do not intend to go to in these reasons, however I have had regard to those issues. Dr K is a psychiatrist who commenced treating the wife on 16 March 2009 and has had three consultations with her. Whilst he makes some adverse comments, which the husband relies upon, these need to be read in context. Dr K said that the wife is not a risk to F. He gives some evidence with the wife’s insightfulness with regard to P.
The family consultant prepared the issues assessment and observed that the child expressed some concerns about assaults on him. As I have indicated earlier the family consultant said that this statement by the child appeared ‘somewhat contrived and adult in the context’. The family consultant left the question of supervision to me.
Dr A’s report was prepared after he saw both of parties, the wife’s mother and P. He concludes that neither party had a mental disorder.
Of the wife he says this:-
1b.The physical and mental health of the [the wife]
Because of the history of thyroiditis resulting in a series of disturbances of thyroid function, it is likely that [the wife] is suffering from sub-clinical hyperthyroidism due to having ceased to take an effective anti-thyroid drug. The hyperthyroid condition is not at this time clinically evidence, but it may manifest in mood disturbance.
She has a history of infectious mono-nucleosis with cerebral symptoms, and Hodgkin’s Lymphoma which may in some cases be a sequel to infection with the causal virus. She thus has two medical conditions which may produce subtle effects on the brain and contribute to the behavioural and mood disturbances described. Both of these conditions have their onset during her late teens, and have almost certainly contributed to the development of personality traits evidenced during the stressful situation of where she is. Menopausal changes have also contributed to mood and behaviour disturbances.
The single expert went on to say[9]:-
It would appear that [F] has undoubtedly witnessed episodes of extreme emotional behaviour and violence by the mother [the mother does not admit the violence]. Although such episodes are remembered, children are generally resilient to them, recognising their own instability of mood and temper. The present policy of limiting the child’s contact with the mother to supervised visits is probably barely sufficient to provide a countervailing positive experience of the mother.
[9] Page 23 – 1d.
The counsel for the husband was critical of this comment by the single expert. I accept that a child viewing violence committed on others, particularly members of their family, amounts to violence on the child. However, the comment by the single expert has to be seen in context in circumstances where he was not asked to give a view on the child and has not interviewed the child.
Worryingly, the single expert says[10]:-
With a credible history of intermittent emotional behaviour disturbance it is not possible to be certain of the safety of the child [F] in the mother’s unsupervised care at this time [emphasis added]……
In my opinion, the risk of considered suicidal behaviour on the part of the [the wife] is low, and the risk of harm to a child is even lower. There is, however, a continuing risk of impulsive behaviour which might cause considerable anxiety to others, and be disturbing to the child [F] if witnessed by him [emphasis added]. Her condition can almost certainly be stabilised by a combination of a present psychological management and appropriate medical treatment …..
In my opinion the severity of the situation is such that the investigation of appropriate treatment of [the wife’s] condition should be made a condition of any move to any unsupervised contact, or residence of the child [F].
[10] page 24
It is unclear whether what the expert is saying is that the supervision should be dispensed with or limited whilst the medical investigations are being undertaken or should remain in place after the investigation is being undertaken. Having regard to the context of the statements in the report it seems that it is the former rather than the later interpretation.
It is impossible for courts to give a guaranteed result in any case. The law regarding unacceptable risk must inevitably mean that there is an acceptable risk. In this case there is a need for the child to spend far more time with the wife. The wife asserts that much of the allegations raised by the husband are part of his underlying desire to remove her from the care of him. Whether that is accurate or not will be a matter for determination on a final hearing.
The husband is extraordinarily concerned about the welfare of the child.
I am satisfied, from the evidence of the family consultant, that the child has a desire to spend more time with the wife to assist him in easing his confusion.
Both parties are able to provide for the physical needs of the child and I am satisfied that, for at least short periods of time, the wife is well able to manage her emotions. This will be particularly the case if I put in place the limited unsupervised time that I set out earlier in these reasons. There would be a responsible adult available before the child goes with the wife and after the child is returned. Periods will be for daylight hours only and will give the Court and the family consultant an opportunity to investigate how this operates.
I intend to order an updated family report from the family consultant in that regard. The husband suggested I should obtain a report from the single expert. I am reluctant to do that at this stage bearing in mind the child is undertaking counselling through CHYPPS and has already seen the family consultant. There is not a need at this time to expose the child to yet another ‘expert’.
I am satisfied that there is a strong relationship between the child and his parents and the child and his sister P. There is a question as to whether the husband is willing to facilitate and encourage the relationship between the child and the wife. The nature, if any, of this and if established the extent of it, will need to be determined at trial.
The effect of the changes that I am putting in place will mean that the child spends far more time with the wife and it will be supervised most of the time. In that respect I include Dr B as a supervisor, bearing in mind the wife has lived in the home of Dr and Mrs B since earlier this year. He is a qualified medical practitioner and there have been no significant evidence of any factor which would cause concerns about him as a supervisor.
The practical consequences of what I am putting in place will mean that the child continues to spend Wednesdays with the mother and initially most weekends and then each alternate weekend. That seems to meet the needs of the child for the immediate period before the Christmas school holidays.
As I have said earlier both parties have the physical and intellectual capacities to meet the needs of the child, the real question is that of the emotional state of the mother which I have dealt with elsewhere. I am satisfied that if the mother had significant emotional disturbance, as was asserted by the husband and his witnesses earlier this year, it seems that her condition has much improved bearing in mind reports of her psychiatrist, the single expert and her treating psychologist. The mother will need to continue counselling and investigate the matters raised by the single expert. I will give leave for the relevant reports to be provided to her treating medical advisors and provide for the wife to give authorities to relevant medical advisors to keep the Independent Children’s Lawyer informed about the wife medical circumstances.
There are allegations of family violence. As a consequence of a complaint made by the father a family violence order has been made. I intend to vary that family violence order so that it does not operate to prevent the child from having time with the wife in accordance with these orders or future orders. This does not prevent the operation of the order in relation to the main purpose of them.
I have had regard to the limited time the mother has spent with the child since separation particularly until the first order was made and the minutes of notes of the orders made by me earlier this year.
Accordingly whilst there will be supervision it will be of a “lighter” nature than one would have normally anticipated but I do this having regard to the comments made by the evidence provided by the experts in these proceedings. I also intend there to be an opportunity for the child and wife to spend time together unsupervised as the evidence is that it is safe or relatively safe and that for short periods there can be some assessment by the family consultant and for the court.
I have ordered these proceedings be adjourned for short hearing before me on Friday 11 December 2009 at 9.00am as I have detailed above.
There needs to be more time between the child and the wife. The supervision will eventually wind back as the mothers health improves. In the circumstances of this case that winding back should start now.
PROPERTY
I have power to make an interim property order pursuant to s79 of the Act. The Full Court recently discussed the powers to make such orders in Strahan & Strahan (interim property orders) [2009] FamCAFC 166 where they said:-
101.s79 of the Act confers the power to make an order for property settlement. The approach to the determination of an application pursuant to s79 is well established by authorities. S79(2) provides that an order shall not be made, unless the court is satisfied, in all the circumstances, that it is just and equitable to make an order.
The court is required in considering what orders, if any, it should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b), (c) of s79(4);
The effect of any proposed order on the earning capacity of the parties; the matters referred to in s75(2) so far as they are relevant; and any other order made under the Act effecting a party or a child; and any child support under the Child Support (Assessment) Act 1989 (Cth).
S80 of the Act gives the court power to make an interim or partial property order pursuant to s79.
The Full Court in Harris & Harris [1993] FLC 92-378 and later in Bassi & KB Sales Force Specialists Pty Ltd –v- Maas [1989] FLC 92-867 made it clear that the Court could make such an interim or partial property order “dealing with some of the property of the parties prior to final hearing”.
There is a useful discussion of the power to make such orders in Strahan (supra) by Boland and O’Ryan JJ in paragraphs 114 through to 141.
The Full Court has identified two distinct aspects of such an application. The first is the procedural step the second the consideration is the substantive steps.
That first step needs consideration as to whether the jurisdiction would be entertained. In terms of the first step the Full Court in Strahan (supra) observed that the interim or partial property order should ordinarily be exercised on a “once only” basis “circumstances may arise before there can be a final hearing where the power is exercised”. The Full Court in Strahan observed:-[11]
Thus, the first step is to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercises of power.
[11] At paragraph 115.
In these proceedings there is no issue that the power ought to be exercised. It may well be that this falls into those rare cases where not only will it need to be exercised now but once the former matrimonial home is sold it then there may need to be a further exercise. The financial circumstances of both parties are quite parlous. Their primary source of income has disappeared, the wife has suffered significant health difficulties and there is an urgent need for capital in the present circumstances and there is likely to be urgent need for capital once the home is sold.
The Full Court approved the approach adopted by FM Reithmuller in Wenz v Archer [2008] 40 FamLR 212 where he identified the need for there to be appropriate circumstances rather than compelling circumstances. That approach was adopted by the Full Court in Strahan (supra).
The parties agree that it is an appropriate exercise of the jurisdiction and I am satisfied having regard to the circumstances set out earlier that it is an appropriate case for the exercise of that power.
In coming to that conclusion I note that the total pool of assets will be in the vicinity of $700,000.00 and that a payment out of some debts at this stage will reduce future liabilities of the parties and will avoid the risk of legal action against the parties with consequential additional cost.
The full asset to the parties have not, at this time, have been clearly identified. However the husband sets out a framework of the assets in his affidavit filed 23 June 2009 wherein he shows four properties (one of which has been sold) totalling some $1,585,000.00. In that pool he estimates the value of the home at M Street at $620,000.00. It seems that its value may be greater than that and upwards of $550,000.00. The parties own two motor vehicles, a Mercedes Benz and a Golf and have other assets.
The property at H Street has, I believe, sold and part of the liability of the parties has been reduced. At 18 June 2009 the husband disclosed liabilities of $1,147,897.00 and a net asset position of about $400,000.00. Having regard to the believed change in value of the property at S the assessment of an asset pool of about $700,000.00 seems reasonable at this stage although it would need to be refined for a final hearing.
There is a risk that the debts of the parties, bearing in mind neither are earning any significant income, will expand over the weeks and months between now and final resolution of the property dispute between the parties.
In terms of the question of contribution, the parties were in a relationship for almost twenty years. There were three children of the relationship to whom I have referred to earlier. On the information before me it is clear that both of the parties have made significant contributions to the acquisition and maintenance of the properties that they have accumulated during their marriage. It is equally clear that each of them will be entitled to a significant part of that property although the precise contributions will not be determined until final hearing.
In respect of the future needs of the parties I note the following:-
(a)The husband and wife are aged 43. The wife has had some serious health difficulties in the past and it is possible that those health difficulties are continuing.
(b)The parties have the responsibility for care of one child of the marriage, F who is aged 5 almost 6.
(c)It is likely the parties have the responsibility to care for their eldest child P, although 18 attends high school and there is some evidence she may be continuing high school into 2010.
(d)The wife is at this time not earning an income and the husband’s earning capacity is, at this time, impacted by his responsibility to care for the children although clarification of the earning capacity of both parties would be a matter for final hearing. I have earlier set out the identified property of the parties.
(e)Each of the parties are struggling to support themselves and struggling to support their children. As I have said earlier there is no order for maintenance for P however, if P is attending high school in 2010 this is likely to be a matter where the provisions of s66L of the Act could apply if either one or other party has the capacity to meet those expenses.
(f)The standard of living of these parties has diminished greatly in recent times, without making any formal findings it appears that the loss of the Telstra contract and the health difficulties of the wife combined with the relationship breakdown have reduced the circumstances of the parties.
I have considered all of the factors under s75(2) of the Act that are relevant to this determination and that are available to me.
The main concern I am endeavouring to address in these orders is to provide some basis capital upon which the parties can live and meet ordinary living expenses between now and the final hearing.
There are two issues regarding the property, the first is the question of how a surplus of $1,100.00 per month being property accumulated by the parties out of the investment property held by a family trust is distributed.
The second is how the $98,000.00 available to the parties after a sale of the property in H Street is distributed.
There is no issue that these are interim/partial property orders.
As to the first question the father deposes in his affidavit that the G Street property has an income of about $3,794.00 per month, outgoings of about $2,678.00 per month with a net income of about $1,116.00 per month.[12]
[12] Annexure I to affidavit of husband sworn 19 October 2009.
Both the husband and the wife are in dire financial circumstances. The wife lives with friends in their home and as a consequence of the trust she is not able to access any social service benefits. The wife has difficulties in working due to health concerns much of which have were referred to in evidence referred to earlier in these reasons.
The father has the care of the two children (albeit P is over the age of eighteen years but is still at school) and has at this stage limited earning capacity.
The mother proposes that the income ought to be divided equally by way of interim property orders pending the outcome of these proceedings. The husband submits that it ought to be adjusted on some different basis having regard to his care of the children. $1,110.00 per month is inadequate to meet the needs of all of the parties.
I am conscious that the father, at this stage, has the primary care of F and that P, at least part of the time lives with him, and there needs to be money available for her adult care at high school.
Having regard to those circumstances I determine that it is appropriate to distribute this income property, at this stage, on the basis of one third to the wife and two thirds to the husband. As to how this is ultimately dealt with at the final hearing will be a matter for the Judge at final hearing. Accordingly, I will make orders in that regard.
As I set out earlier the parties have $98,000.00 available for distribution (being part of the proceeds of sale of a property at H Street). The parties are agreed, I accept that is appropriate, that a number of debts need to be paid out of that sum, namely:-
- KPMG $4,615.00
- school fees $14,586.00
- insurance $6,219.00
- Medical insurance $859.05
- Citibank Silver credit card $6,091.00
Total $32,370.05
This would leave a balance available to the parties of sum $65,629.95.
I will be making a consent orders in relation to the payment of those accounts out of the monies held by the parties.
The parties total pool of assets a modest pool. It will be significantly reduced by the cost of these proceedings however it is likely that a property owned by the parties at S will be sold in the immediate future and that money will be available to assist the parties in living and housing arrangements.
The wife has received some funds since the commencement of these proceedings including about $11,000.00 pursuant to orders made by me earlier this year, about $5,000.00 in a tax return and about $3,600.00 by way of a Centrelink payment to her (the precise nature of which is not available to me).
There is an issue as to how much the wife received from Centrelink. Whilst I make no findings for the purposes of the calculation today I will treat it as the sum of about $3,600.00. This means that since March 2009 the wife has had about $19,000.00 or $20,000.00.
The father asserts that he has paid all of the debts of the family and that the expenses are transparent. He says he has spent about $31,000.00 in the last four months supporting himself, paying debts including car repayments and meeting expenses of the children. In addition he needed to pay some money out of the former business of the parties.
He says that the wife should receive some $19,000.00 of the available liquid assets. The wife seeks about $32,800.00 being one half of that sum.
The husband’s case falls into a number of areas. Firstly he has the commitment to pay debts of the family of about $13,000.00. He applied the whole of the money he received from the earlier interim property to payment of debts and for living expenses and still needed to borrow money from others. His counsel made extensive submissions as to the expenses that he had incurred and his needs in that regard.
It was submitted that unless he paid some bills he may become a bankrupt and there is no evidence of any pending bankruptcy proceedings or any judgments against him.
Much of these financial difficulties will be solved upon the sale of S property. That will create further problems and the need for other accommodation for the father and the children or either of them.
I have indicated to the parties that February 2010 is probably too early for a final parenting hearing and that it is likely that that hearing would be heard in my sittings commencing 19 July 2010.
There needs to be updated reports and information as to the wife’s health needs to be made available before a final hearing can be determined on children’s matters and it is difficult to determine property in the absence of some medium to long term arrangements for F.
As such I will make one day available in my February 2010 Launceston sittings (if necessary) to determine further interim property orders.
The danger for these parties is that the costs of these proceedings may reduce the pool of asset significantly and much of that which they have worked for all of their lives may be lost. Some form of mediation both in terms of property and parenting would be of enormous value to the parties in every possible way. I intend to order a conciliation conference
The husband says he needs a greater share of the property on an interim basis because of the present needs of the children and himself. There is some merit to that argument at the present time.
Fortunately the pool of assets would be such that any such payment can be adjusted once all of the evidence is before the Court and is tested. I intend to apply the same methodology on this asset distribution as I did on the other, that is that two thirds will be paid to the husband which is $43,753.00 and one third to the wife which is $21,876.95.
In coming to this determination I have had regard to the submissions of the husband that the wife’s expenses were far less than his. However, I have before me significant evidence that the parties have each expended monies in relation to this litigation and will need money to fund the litigation as it proceeds through the court, particularly having regard to an interim hearing in December 2009 and in respect of children and a further interim hearing in February 2009 in respect of property.
Having regard to all of the facts and circumstances in this interim or partial property settlement I am satisfied that the orders I propose are, in all of the circumstances, just and equitable.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 27 October 2009