BEARDSLEY & BEARDSLEY
[2020] FCCA 1478
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEARDSLEY & BEARDSLEY | [2020] FCCA 1478 |
| Catchwords: FAMILY LAW – Parenting and Property – interim applications – four children aged 15, 14, 10 and 7 years – where the parties agree for the children to live with the father and for the two older children to spend time with the mother subject to their wishes – where the mother has bipolar affective disorder – where the children have made disclosures about the mother’s concerning behaviour to a family therapist and to the family consultant – whether the mother’s time with the two younger children should be supervised – which party should have sole use and occupation of the former matrimonial home. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DA(3), 65DAA(2), 65DAA(3), 65DAA(5), 114(1). |
| Cases cited: Davis and Davis (1976) FLC 90-062 Goode & Goode (2006) FLC 93-286 Jolly and Jolly (1978) FLC 90-458 Marvel & Marvel [2010] FamCAFC 101 Plowman v Plowman (1970) 16 FLR 447 |
| Applicant: | MR BEARDSLEY |
| Respondent: | MS BEARDSLEY |
| File Number: | ADC 587 of 2020 |
| Judgment of: | Judge Kari |
| Hearing date: | 29 May 2020 |
| Date of Last Submission: | 29 May 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Resolve Divorce Lawyers |
| Solicitors for the Respondent: | Mr Clarke of Clarke Hemmerling Lawyers |
THE COURT ORDERS
That the parties forthwith do all things necessary to enrol in and be accepted into the supervised time program at the Suburb A Children’s Contact Service.
That until further order the children X (born in 2009) and Y (born in 2012) shall spend supervised time with the mother as follows:
(a)Pending acceptance into the Suburb A Children’s Contact Service and following the conclusion of the arrangements in paragraph 2(b) herein, for a period of two hours each week as can be accommodated by the nominated supervisor, with such time to be supervised by a professional supervisor nominated by the father at his sole expense in all things.
(b)Following acceptance into the Suburb A Children’s Contact Service, on such occasions as the Service can accommodate the parties subject to the following:
(i)There be no more than one session per week which is not to exceed two hours in duration;
(ii)The visits are to be at the expense of the father; and
(iii)After six visits the father is to obtain a report from the Director of the Service regarding the supervised time spent with the mother.
That the father request the supervisor that he has nominated pursuant to paragraph 2(a) herein to provide a report at the conclusion of every visit, with a copy of such reports to be provided to both of the parties simultaneously.
That no later than 14 days prior to the adjourned hearing the father shall file and serve a copy the reports that the parties have received from the supervisors referred to in paragraph 2 herein.
That as and from 10 July 2020 and until further order:
(a)The father shall have sole use and occupation of the property situate at B Street, Suburb C in the State of South Australia (“the former matrimonial home”).
(b)The mother shall be restrained and an injunction is granted restraining the mother from attending at the former matrimonial home.
That within 60 days the mother file and serve a copy of a report from her treating Psychiatrist Dr D, and that in relation to the same the mother is directed to provide Dr D with a copy of all documents filed in these proceedings and the orders made.
That the parties are hereby restrained and an injunction is granted restraining them from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other in the presence of the children or allowing any other person to do so;
(b)Discussing these proceedings with or in the presence of the children;
(c)Physically or emotionally abusing the children; and
(d)Exposing the children to nudity, soiled sanitary items and either parent on or using the toilet.
That the proceedings be adjourned for Mention only to 10:30am on 20 October 2020.
THE COURT FURTHER ORDERS BY CONSENT:
That the parties and their legal representatives attend a Conciliation Conference with a Registrar of the Court at 9:15am on 11 September 2020.
That within 14 days the parties provide mutual informal discovery of all documents in their respective possession or control.
That any inspection arising from such discovery be completed no later than 14 days thereafter.
That within 14 days:
(a)The father do provide to the mother a draft joint schedule of assets and liabilities; and
(b)That within 14 days thereafter, the mother do provide her response to the draft statement of assets and liabilities.
The parties shall appoint a jointly instructed single expert/licensed valuer to value any asset the value of which is in dispute, at the joint and equal expense of the parties in accordance with the Family Law Rules.
That any valuation obtained by the parties be filed no later than 14 days prior to the Conciliation Conference.
That unless otherwise exempted from payment, the father shall pay the Conciliation Conference fee (in accordance with the Family Law (Fees) Regulation 2012), no later than 28 days prior to the Conciliation Conference AND within 7 days of payment the mother shall reimburse the father one half of such fee.
IT IS NOTED that publication of this judgment under the pseudonym Beardsley & Beardsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 587 of 2020
| MR BEARDSLEY |
Applicant
And
| MS BEARDSLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These interlocutory proceedings relate to two discrete issues:
a)Firstly, the time spending arrangements for two of the parties four children; and
b)Secondly, which of the parties should have sole use and occupation of the former matrimonial home.
The parties have four children, namely:
a)W born in 2004, who is almost 16 years of age;
b)V born in 2005, who is almost 15 years of age;
c)X born in 2009, who is almost 11 years of age; and
d)Y born in 2012, who is 7½ years of age.
There is no dispute that:
a)All four children are to live with the father at this stage; and
b)The older two children are to only spend time with the mother in accordance with their wishes.
The dispute regarding the arrangements for X and Y is that:
a)The Father asserts that the children should only spend limited time with the mother supervised either at a contact centre or by an independent professional supervisor; and
b)The mother’s position is that her time should not be supervised at all and that the children spend time with her each weekend from the conclusion of school Friday until Sunday evening, however in the alternative she proposes that her time spending (on the same regime) be supervised by her father or her mother.
Background
The background of the parties and their relationship is as follows:
a)The father was born in 1977 and he is 42 years of age.
b)The mother was born in 1976 and she is 43 of age.
c)The parties married in 2003 and they separated some 17 years later on 24 January 2020.
There is no dispute that in 2003 the mother was diagnosed with bipolar affective disorder and that she had a relapse in June 2019 with “manic features, requiring admission to E Hospital between March and April 2019.”[1] There is also no dispute that in the past the mother has been medicated to manage her condition but that she ceased taking medication in Mr F 2003.
[1] Report of Dr D, Consultant Psychiatrist dated 10 February 2020, being Annexure “1” to the Affidavit of the mother filed 6 March 2020.
In the lead up to the parties’ separation the family began having therapy with Mr F, who is a Social Worker. It is alleged that during the course of those therapy sessions, Mr F became so concerned about the mother’s behaviour and the disclosures made by the children W and V that he made three separate mandatory reports to the Department of Child Protection. The disclosures by the children (which the mother denies) included:
a)That the mother walks around the house naked and asks the children to look at her;
b)That the mother sits on the toilet with the door open and has the children sitting between her legs; and
c)That the mother grabs the children and drags them away when she is irritated with their behaviour.
There is no dispute between the parties that the mother’s relationship with the two older children (W and V) is particularly fractured, and there are allegations of hostilities and derogatory language being directed by the children towards the mother and vice versa.
When the parties separated on 24 January 2020 it was immediately following a session with Mr F wherein Mr F advised the parties that he had made reports to the Department of Child Protection regarding the mother’s behaviour. It is common ground that immediately after the session with Mr F the mother vacated the former matrimonial home at Suburb C and spent the night at her parent’s home at Town G before moving into a home owned by her parents at Suburb H.
The mother however returned to the former matrimonial home on 29 January 2020, causing the husband to immediately vacate the home with the children, allegedly on the advice of Mr F. The father moved with the children to the home of the paternal grandparents at Suburb J where he and the children have remained living, while the mother has remained in the former matrimonial home.
After separation the parties attended therapy with a different person, namely Ms K. From the mother’s affidavit it is clear that she had no confidence in the therapy with Mr F continuing, as she makes a number of allegations as to Mr F’s inappropriate conduct generally during the therapy with him.
It was alleged by the father’s Counsel during the hearing that Ms K also made mandatory reports to the Department of Child Protection as a result of her concerns regarding the mother.
The father asserts that on 2 February 2020, the child Y made disclosures to him (which the mother denies) that the mother:
a)Licks him on the inside of his mouth and he does not like it; and
b)That the mother has shown him her soiled sanitary pads “dozens of times”.
The father commenced the proceedings on 14 February 2020.
The father asserts that on or about 2 March 2020 the mother attended the children’s school and attempted to encourage the children to leave with her.
At the first hearing of the matter on 11 March 2020:
a)The court had the benefit of two responses from the Department of Child Protection.
b)In the Response dated 5 March 2020, (responding to the Notice of Risk filed by the father) the Department recorded:
i)That they had no investigative involvement with the family.
ii)That there had been two previous notifications for the family, one in July 2017 and another in January 2020, pertaining to the “mother’s mental health and alleged erratic behaviour”.
iii)That the recent notification (which was presumably the Notice of Risk filed by the father), raised similar concerns regarding the mother’s behaviour and the file was marked as requiring a 10 day response, but ultimately closed with no action “due to the full workload of departmental staff”.
c)In the Response dated 10 March 2020, the Department recorded, (presumably in response to the Notice of Risk filed on behalf of the mother):
There has been one notification since the last NOR with allegations that the father has a psychiatric disorder, has not been not taking his medication and he encourages the older children to bully the mother. Allegations the father assaulted the child X resulting in “extensive bruising” which lasted for two weeks.
d)The Court made orders at the request of the parties for there to be a private s 11F style child inclusive process with Ms L on 18 March 2020, with Ms L to provide a brief report to the court.
By the time of this hearing, the court had the benefit of Ms L’s report dated 20 March 2020.
During the interviews with the parents, Ms L variously recorded:
a)That the mother had made allegations as to what might be described as coercive and controlling behaviour on the part of the father, including an allegation that the father was “emotionally abusive”, that the father had “viewed her emails and forced her to give up her job, and would not allow her to volunteer at the children’s school.” These allegations were denied by the father.
b)The father’s concerns about the mother not adequately attending to her mental health concerns, and in particular her disengagement with those that treated her following her hospital admission in 2019.
c)The father’s admissions of having suffered “anxiety for a long period” with “nil success in being medication-free on two attempts”, including alluding to self-harm when attempting to wean of his medication in the past.
d)The mother alleged that the father was undermining her relationship with the children and in particular W and V. This allegation was denied by the father, and he opined that as the children got older and the mother’s unusual behaviours had worsened the children became more embarrassed by her behaviour.
e)The father expressing a concern that the child X may be predisposed to having mental health difficulties.
f)The mother denied allegations that:
i)She had licked Y in the mouth;
ii)She had toileted with the door open;
iii)She had showed the children her soiled sanitary pads;
iv)She had exposed the children to nudity; and
v)She had used physical force in disciplining the children.
When the child W was interviewed:
a)Ms L formed the view that W “presented information in a very direct and composed manner, providing detailed narratives.”
b)W disclosed to Ms L that the mother’s “physical appearance, tendency towards skimpy clothing or nudity in the home, showing him her sanitary pads and openly toileting were ‘so embarrassing’”.
c)W confirmed that he “had conveyed verbal anger to the mother when he felt she ‘continuously ignored’ his complaints about her behaviours, adding that his father understands but tells him off for ‘swearing and yelling’”.
d)W stated that he felt “distant” from the mother and that he felt that a burden had been lifted in not having to spend time with her.
When the child V was interviewed:
a)Ms L formed the view that she presented in a “mature and matter of fact manner”, relaying that V felt a lack of “emotional connection” with the mother over the past 4 years.
b)V disclosed to Ms L that the mother called her “retarded” and “stupid” over minor issues, and that the mother would anger over her “noise sensitivity” and that the mother had pulled Y “roughly”.
c)V disclosed having been shown sanitary pads, being exposed to the mother’s nudity and toileting, and that the mother had “disregarded her conveyed views about this”.
d)V expressed a concern that the father did not always address the mother’s concerning behaviours, and that he would “play it down”.
e)V reported that she had disengaged with her school counsellor as the mother had attempted to seek information about those sessions.
f)V reported that she was not motivated to repair her relationship with the mother and that she worried about her siblings spending time with her.
When the child X was interviewed:
a)Ms L formed the view that X found the interview process “difficult”.
b)X was able to positively reflect on her relationship with the father and indicated that she did not have any worries in that regard.
c)X conveyed to Ms L that the mother yelled a lot over “noise, having lights on/off and that the father tended to ‘tell her to stop yelling at us’”.
d)X did however disclose to Ms L that she had been shown soiled sanitary pads and that the mother toileted with the door open.
e)X expressed a desire to live with the mother.
f)However, Ms L formed the view that X was wanting to protect the mother, particularly as she was unable to elaborate on her perception of V and W’s relationship with the mother, and nor was she able to give anything other than “superficial” reasons for wanting to live with the mother (for example “she usually takes me to the shop a lot”).
When the child Y was interviewed:
a)Ms L formed the view that Y presented in a “very chatty manner” but that there appeared to a suggestion that he had been exposed to the father’s perspective.
b)Y is said to have “spontaneously disclosed” to Ms L that the mother had “licked my tongue, and my mouth” on more than one occasion, providing a detailed but “jumbled” narrative as to when at least one incident of that nature had occurred, including examples of other “odd” behaviour. Ms L formed the view about these disclosures that they may be indicative of Y misreporting “somewhat odd, rather than sexually abusive” behaviour by the mother.
c)Y also disclosed the mother’s use of physical force with him when she was angry, reflecting that “she is really sensitive to sound”, causing her to act in an irritable and unpredictable manner which worried him.
d)Ms L formed the view that Y’s primary comfort figure was the father.
e)Y felt “ok” about not spending time with the mother and was ambivalent about spending time with her in the future.
Ms L ultimately made recommendations that:
a)Any time the children X and Y spent with the mother should be “supervised initially; either at a Children’s Contact Service or by a mutually agreed professional supervisor”, commenting that “the presence of an impartial supervisor may be preferable, as they would be able to provide a report as to the mother’s behaviour.”
b)That there would be some utility in the mother engaging with a therapist “skilled in the intersection between parenting and mental health” with the ability to provide a report to the court.
c)That X and Y would likely find it difficult moving between the two parents, but that they should continue to engage with therapy to assist them to manage the process and to address any “early resistance/refusal dynamics.”
d)That the “extra burden” of the children not being in the family home at a time when they are experiencing the acrimonious separation, was not optimal and she considered that the children should be returned to the home.
As a result of the report from Ms L, at the hearing, the mother did not pursue the orders in her Response filed 26 May 2020 for the two younger children to live with her. Instead, orders were made by consent for all of the children to live with the father, and for the two older two children to spend time with the mother in accordance with their wishes.
The mother did however file an affidavit on 26 May 2020 setting out a litany of concerns that she holds regarding the process adopted by Ms L and the opinions expressed by her in her report.
It is the father’s position that:
a)The mother poses an unacceptable risk of harm to the children, and that at this juncture the only way to protect the children from harm and have them maintain a relationship with the mother is for any time that she spends with the children to be supervised, as recommended by Ms L.
b)That his preference is for time to be at a contact service, however understanding that there are significant delays in such services being available, he proposes a professional independent supervisor be arranged with the mother to solely meet those costs.
c)In circumstances where he has the primary care of the children and the former matrimonial home is familiar to them, he should be permitted to have sole use and occupation of the former matrimonial home; particularly as the mother can either resume living at her parent’s property at Suburb H or she can rent alternative accommodation.
The mother’s position is that:
a)She has taken a realistic position (said to be on advice) at this stage and only pursues time with the younger two children in light of Ms L’s report.
b)She does not consider that she poses any risk to any of the children and that there is no basis for her time to be supervised. However, she understands that Ms L has made recommendations for supervision and if the court was minded to make orders for supervised time, then she proposes the maternal grandfather (who has filed an affidavit in the proceedings confirming his willingness), or the maternal grandmother (who has not filed an affidavit), as the wait time for a contact service is inordinately long and she cannot afford the costs of a professional independent supervisor.
c)She should remain living in the former matrimonial home as she cannot afford alternate housing and her parents’ home at Suburb H is not available to her.
What are the appropriate parenting arrangements at this stage for X and Y?
The Law
In any case involving children the court must regard the best interests of the child as the paramount consideration.[2]
[2] Family Law Act 1975 (Cth) s 60CA.
In determining what is in a child’s best interest the court must take into account a range of factors set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).
The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.[3] That presumption can be rebutted in certain circumstances, namely situations relating to abuse and/or family violence.
[3] Ibid s 61DA.
Where equal shared parental responsibility is applied, the court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[4]
[4] Ibid s 65DAA.
In the event that the court rejects an equal time spending arrangement between the parents, the court is required to consider the child spending “substantial and significant” periods of time with each of his or her parents, taking into account the child’s best interests and whether the arrangements are reasonably practicable.[5]
[5] Ibid s 65DAA(2).
The Act defines substantial and significant time as including days that fall on the weekend and days that do not fall on weekends or holidays. Significantly substantial and significant time is defined as time which enables a parent to be involved in the child’s daily routine and occasions of significance to the child or his or her parents.[6]
[6] Ibid s 65DAA(3).
In determining the practicalities of the arrangements for a child, the court is required to consider matters relating to the distance between the parent’s homes, the parents capacity to implement a shared care living arrangement, the parent’s capacity to communicate with each other and resolve parenting issues, and finally the impact of the arrangement on the child.[7]
[7] Ibid s 65DAA(5).
At an interim stage however, the court is not obliged to make any orders with respect to parental responsibility.[8] In those circumstances, the court is required to make orders in the child’s best interests with regards to those matters set out in s60CC of the Act.
[8] Ibid s 61DA(3).
In Goode & Goode (2006) FLC 93-286 (‘Goode’) at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:
a. identifying the competing proposals of the parties;
b. identifying the issues in dispute in the interim hearing;
c. identifying any agreed or uncontested relevant facts;
d. considering the matters in s60CC 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);
e. deciding whether the presumption in s61DA 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;
f. if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g. 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 s60CC, or impracticable;
h. 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 s65DAA(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 s60CC, or impracticable;[80904]
i. 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 s60CC;
j. 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 s60CC; and
k. 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
Given the interim nature of these proceedings, and the significant issues in dispute between the parties, I do not consider that I am in a position at this juncture to make orders with respect to parental responsibility.
On the face of the material before the court there is a significant dispute between the parties as to a series of allegations that have been made in relation to the mother’s conduct towards the children over a period of time, and the impact that conduct has variously had on each child.
As identified earlier in these reasons, the mother has denied the allegations that the father asserts have been the subject of disclosure by the children to the father, and to Mr F and now to Ms L.
As identified by the Full Court in Goode (at paragraph 68):
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
In Marvel & Marvel [2010] FamCAFC 101 (which has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104) the Full Court commented at paragraph 120:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
The Full Court went on to say at paragraphs 122 and 123:
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
While there is much in dispute between the parties, at this juncture I am greatly assisted by the report prepared by Ms L, particularly so far as the comments that the children appear to have independently made to her. In particular, the children each in their own separate ways have confirmed the disclosures that the father asserts the children have made to him and to Mr F regarding the mother and her conduct. As a result, and while I note that the mother has denied the allegations made by the father, I do not consider that I can at this stage disregard those allegations simply because the mother denies them.
I have taken this view because it also appears to me that the allegations that are said to have been disclosed by the children all appear to have a thread of consistency about them, both in terms of the topics and detail the father asserts about the disclosures made to him and to Mr F and then as independently recorded by Ms L, but also as and between each child’s account as disclosed to Ms L.
In addition, and given the ages of the children, and in particular the two older children, I am of the view that I can give some weight at this stage to the matters Ms L has recorded the children reported to her.
Despite her criticisms of Ms L’s report, implicit in the mother’s position must be an acknowledgement that there is some basis for the court to have concerns with respect to the risk of harm (psychological harm at the very least) the mother poses to the children. While the mother’s solicitor attempted to positively eschew any suggestion of this nature during the hearing, this is incongruous with the mother abandoning her interim application for the primary care of the two younger children.
Attention was drawn throughout the hearing by counsel for each of the parties to a brief report that the mother has obtained from Dr D, her treating Psychiatrist on 10 February 2020. In that report Dr D expresses the view that:
a)The mother has presented to him across three appointments on 31 January, 4 February and 6 February 2020 with “no evidence of acute relapse of bipolar affective disorder”.
b)The mother’s bipolar affective disorder is “currently in remission, and that she is not presently being prescribed any regular psychotropic medication”.
The mother’s position is that the report of Dr D can give the court confidence that the mother is attending to the concerns regarding her health. The court was additionally told during the hearing that the mother has been maintaining regular appointments with Dr D since the release of the report.
The father, through his Counsel was critical of Dr D’s report for a range of reasons, including but not limited to there being a lack of any reference by Dr D to the concerns and allegations that have been raised in relation to the mother by him and the children.
This is a submission, which on balance at this juncture carries some force, as it is not clear to me that Dr D has any understanding about the issues that are being raised in relation to the mother that may well influence the opinion that he has expressed. I accordingly do not consider that I can accord the report the significant weight that the mother would like at this stage.
However, even if I am wrong in holding concerns over Dr D’s view, I consider that there is sufficient information before the court from the children’s perspective (as reported to Ms L) that gives cause for concern as to how to best manage the mother’s time spending arrangements with the children, to ensure that they are not exposed in her care to psychological and/or emotional harm at the very least.
For all of these reasons, I consider it appropriate to adopt a conservative approach at this juncture and to make orders requiring the mother’s time to be supervised.
This conclusion however leaves the court in a difficult position, because the parties were unable to identify a person whom they agreed would be able to supervise time.
While the mother proposed that either of the maternal grandparents supervise her time with the children if the court considered supervision necessary, I accept the submissions made on behalf of the father that neither of the maternal grandparents would be suitable. I have formed that view in light of the allegations (about which I make no findings) that have been made by the father about each of the grandparents as follows:
a)That in relation to the maternal grandfather, that the mother disclosed to him on more than one occasion that he had exposed his erect penis to her when she was “young” and that he asked her to “touch it”.
b)In relation to the maternal grandmother, that the mother had told him that she had shown the mother her soiled sanitary pads to learn about puberty.
Given the fractured relationships between the mother and the children and the disclosures that the children have made to Ms L, it is important in my view to identify a supervisor that both parents, and the children have confidence in, so as to provide the best atmosphere possible for successful time spending between the mother and the children.
I also consider that the use of an independent supervisor may well encourage the older children to spend time with the mother, whereas it is conceivable that they may be unwilling to do so without the support of an independent professional. I have come to this view, because it is clear to me that all of the children have shown the confidence to make their views known to independent professionals in recent times.
I also consider that the use of an independent supervisor would be appropriate as it means that the court in due course will have the benefit of a report regarding those sessions.
The invidious position this decision leaves the court in is that because there are lengthy delays before a contact service is available, coupled with the dispute between the parties as to how the services of a professional supervisor might be paid, there is a real risk that there will be a significant delay until the commencement of the mother’s time with the children. On any view this is not optimal, and nor are such delays in any of the children’s best interests. Unfortunately however, in the absence of a viable supervisor there is little that the court can do to remedy the situation.
Who is to have sole use and occupation of the former matrimonial home?
The Law
The court has the power to make orders pertaining to the sole use and occupation of the matrimonial home pursuant to s 114(1) of the Family Law Act, which provides as follows:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
…
In Davis and Davis (1976) FLC 90-062 at [75,309], the Full Court set out a non-exhaustive list of factors the court should take into account when deciding whether or not to exercise discretion to make such an order:
The criteria for the exercise of the power under sec 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
In Plowman v Plowman (1970) 16 FLR 447, Carmichael J further illuminated the factors the court is to consider and said as follows:
Among factors which will determine how the discretion is to be exercised are: (a) Can the wife be adequately housed elsewhere? (b) Is the money available, either from the wife's own resources and/or her husband's, to provide that housing? (c) For whom, husband or wife, is it less convenient to have to live away from the matrimonial home? (d) What are the interests of any children of the parties and what would be in their paramount interest? (e) What are the relevant proprietary rights of the spouses? (f) Would a non-molestation order be an appropriate alternative to an order for expulsion? (g) Is there possible use of improper methods either by way of intimidation or fraudulent condonation to prevent the wife from pursuing her rights, if the spouses continue to reside in the one home? (h) The possible injustice of forcing a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause.
In Jolly and Jolly (1978) FLC 90-458, Connor J commented [at 77,334]:
It is to be noted that the Full Court did not attempt to summarise all the considerations but merely some of them. Nor did the court decide that more emphasis should be placed on one than another. What has to be considered is all the circumstances listed above together with other matters which might be relevant in a particular case. In a particular case perhaps more emphasis should be placed on one consideration than another or all the others in deciding what is proper in the circumstances of the case remembering, of course, that the decision should not depend merely on ‘the balance of convenience issues’.
Discussion
Both parents have competing applications for sole use and occupation of the former matrimonial home at Suburb C.
From the father’s perspective he says that the decision as to who is to have the use and occupation of the home is intertwined with the arrangements for the children, and while not the only basis to favour his position, he asserts that in circumstances where he is to have the primary care of the children, their needs and the “hardship” caused to them by being away from their familiar home environment should weigh the balance in his favour.
The father otherwise asserts that the hardship to him and the children is as a result of the hardship caused by the practical difficulties created by the father and the children living with and in the home of the paternal grandmother. The father asserts those difficulties to be as follows:
a)The four bedroom home provides cramped living conditions; with the four bedrooms utilised by the father sharing a room and bed with Y (who usually has his own room in the former matrimonial home), the girls (V and X) sharing a room, W in his own room and the paternal grandmother in her own room.
b)In addition to the cramped sleeping arrangements, the home is said to have only a small front and backyard, no workspaces for the children and no Wi-Fi connection, which the children variously need to utilize for their homework. Whereas the former matrimonial home is said to have two living areas and a shed filled with toys and activities for the children to play.
c)There is also a 45 minute drive to the children’s school in Suburb M, as against a 10 minute drive from the former matrimonial home.
The father also asserts that there are significant financial implications to the current arrangements, because despite the former matrimonial home being owned by the parties freehold:
a)The father continues to pay all other outgoings for the property together with health insurance for the family, car insurances, registration, home insurance and phone bills; and
b)The father is not in receipt, and nor has he asked for any child support payments from the mother.
The father’s position is that the mother can take up residence in the second home of her parents at Suburb H at no cost whatsoever, much as she did for the brief period at the time of separation. While there is some dispute between the parties as to how big the Suburb H property is, there is no dispute that the home has four bedrooms and that it is not permanently inhabited by the maternal grandparents.
The mother’s position is quite simple, she asserts that she cannot afford alternate housing and that the second home of her parents at Suburb H is not available to her.
The mother asserts that up until very recently she has only been earning $200 per week, and that her income has only recently increased to $950 per week gross, amounting to $750 per week net after tax. The mother acknowledges that her income has increased as she has increased her work hours, but she asserts that as she is presently on a probation period, there is no guarantee that her income will be able to be maintained at this level going forward.
Each of the parents assert that the other of them can afford to rent separate accommodation if required.
It is clear to me from a cursory perusal of the Financial Statement filed by the father that he certainly has surplus income after the payment of all of his outgoings of somewhere in the vicinity of $450 per week.
From the mother’s financial statement it would appear that the mother’s ability to meet her outgoings, despite her recently increased income, is far more limited, and there is very little leeway for extraordinary expenses.
I was not however provided with any evidence from either party as to what alternate housing costs are likely to be if either of them were required to rent.
I was told during the hearing that the mother’s parents own two homes and that they share their time between those two homes; that in Suburb H and another in Town G. The court was not told how the maternal grandparents split their time between those two homes. However given the arrangements it is open to me to infer that the home in Suburb H is not a rental property and that the maternal grandparents would not suffer any financial loss if the mother were to live in the Suburb H home full time.
There is some irony in the mother asserting on the one hand that both of her parents are prepared to live with her each weekend (from Friday afternoon until Monday according to the affidavit filed by the maternal grandfather) if the court were to order supervision of her time with the children, while on the other hand the mother’s parents are said not to be prepared to house the mother if the court were not to make an order for sole use and occupation of the former matrimonial home.
Moreover, the mother has not provided the court with any explanation as to why the home of her parents is not available to her. This is all the more confounding, because the maternal grandfather has gone to the effort of filing an affidavit in these proceedings addressing the topic of his preparedness to supervise the mother’s time for 4 days and three nights each week, but that same affidavit makes no mention whatsoever of the mother’s housing and whether or not the Suburb H property would be available to the mother. I was told during the hearing that the paternal grandfather would not be making the Suburb H property available to the mother if the court did not make the sole use and occupation order in the mothers favour.
I find this to be a self-serving position taken by the mother and the maternal grandfather designed to present the court with a fait-accompli. In light of the sworn evidence of the maternal grandfather that he and the maternal grandmother are prepared to live with the mother for three nights each and every week, I consider that I am able to draw an inference that the maternal grandparents are willing and able not only to house the mother, but to also share their home at Suburb H with the mother whenever they wish to utilise living in that property.
On balance and taking into account all of the matters that each of the parties have agitated, I am persuaded that the father and the children should be permitted to return to the former matrimonial home.
In circumstances where I propose to make orders for the father to have sole use and occupation of the former matrimonial home, I consider that he will certainly have sufficient surplus income to pay for an independent person to supervise the mother’s time with the children pending their acceptance into a children’s contact service.
For all of the reasons that I have set out herein, I now make those orders that appear at the commencement of these reasons.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Kari
Associate:
Date: 5 June 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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