Capri & Goldwell
[2022] FedCFamC2F 1363
Federal Circuit and Family Court of Australia
(DIVISION 2)
Capri & Goldwell [2022] FedCFamC2F 1363
File number(s): ADC 3883 of 2022 Judgment of: JUDGE BROWN Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – Parenting – interim parenting arrangements for child aged 14 – nature of interim hearing – weight to be given to child impact report – mother alleges the father coercively alienating the child from her – father alleges mother has exposed child to family violence – parents have no capacity to co-parent – high conflict parenting relationship – mother resides in former family home after father and child have left home – child expresses wishes to return to the family home with his father – best interests of child – weight to be given to child’s expressed wishes – sole occupancy – what is proper – injunction for psychological protection of child Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4(1), 4AB, 60B, 60CA, 60CC, 62G 67Z, 68B, 68LA, 69ZW, 114 Cases cited: Bassett v Bassett (1975) 1 All ER 513
Davis v Davis (1976) FLC 90-062
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
H v W (1995) 18 Fam LR 788
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 FamLR 518
Naslund & Oberlin [2020] FCCA 2295
O’Dea & O’Dea (1980) FLC 90-896
R & R: Children’s Wishes (2000) 25 Fam LR 712
S & S (2002) FamCA 59
Sieling v Sieling (1979) FLC 90-627
SS v AH [2010] FamCAFC 13
Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Division: Division 2 Family Law Number of paragraphs: 176 Date of hearing: 6 October 2022 Place: Adelaide Counsel for the Applicant: Mr Kruse Solicitor for the Applicant: Kruse Legal Counsel for the Respondent: Mr Janson Solicitor for the Respondent: Janson Lawyers Counsel for the Independent Children’s Lawyer: Mr Charman Solicitor for the Independent Children’s Lawyer: Adelta Legal ORDERS
ADC 3883 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAPRI
Applicant
AND: MS GOLDWELL
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
11 October 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The child, X (“the child”) born in 2008, live with the applicant, Mr Capri (“the father”).
2.The father have sole parental responsibility for the child’s care, welfare and development, including ensuring that the child’s education is in accordance with the level deemed satisfactory by the South Australia Department for Education.
3.The respondent, Ms Goldwell (“the mother”) spend time with the child at such time and places as agreed by the mother and child.
4.The mother and the child communicate via telephone communication at such times as agreed between the parties in writing.
5.The father and the child do attend upon the child’s treating general medical practitioner, for the purposes of securing a GP Mental Health Care Plan or obtaining a referral to Child & Adolescent Mental Health Services (CAMHS) and advise the mother and the Independent Children’s Lawyer of the identity of the mental health practitioner so retained.
6.The solicitor for the father is to provide the treating medical practitioner referred to in order (5) a copy of the Child Impact Report of Ms B dated 23 September 2022.
7.The father shall advise the mother of all relevant information regarding the child’s education and medical appointments attended by the child and shall authorise the mother to speak with any education authorities, medical practitioners or allied health professionals who sees the child.
8.Within fourteen (14) days of the date of these orders:
(a)The mother do vacate the property situated at C Street, Suburb D (“the C Street, Suburb D property”).
(b)The father shall have sole use and occupation of the C Street, Suburb D property referred to hereof.
(c)The mother shall be restrained and an injunction is granted restraining the mother from attending at the property or coming within 500 metres of its perimeter without the written consent of the father.
9.So as to facilitate paragraph (8) hereof within fourteen (14) days of the date of these orders, the father transfer the sum of THREE THOUSAND DOLLARS ($3,000.00) to the nominated bank account of the mother and provide written evidence that he has done so to the Court and the Independent Children’s Lawyer.
10.The father pay or cause to be paid to the mother the sum of TWO HUNDRED DOLLARS ($200.00) per week, the first of such payments to be made on Monday 31 October 2022 and weekly thereafter into a bank account nominated by the mother’s solicitor.
11.On a without admission basis, both parties shall be restrained and an injunction granted restraining each of them from:
(a)From abusing, denigrating or criticising the other parent in the presence of the child, or from allowing any other person to do so;
(b)From discussing these proceedings or any allegations or issues raised in these proceedings or any other proceedings with the child, or in their presence, or from allowing any other person to do so.
12.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released on an urgent basis and that the family report address:
(a)any views expressed by the child and any matters (such as the child maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon his relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
13.Not later than 4.00 pm on 21 October 2022 the parties must provide their contact telephone numbers and email addresses to Final[email protected].
14.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
15.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
16.The Family Consultant shall be at liberty to inspect any material filed by the parties,
17.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
18.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
19.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
20.Further consideration of the matter is adjourned to 6 February 2023 at 9.30am for directions to take place at Court on a face to face basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Capri & Goldwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These are interim parenting proceedings, which arise at a point of extreme crisis in the life of the child affected by them and each of his parents. The child concerned is X born in 2008. X is 14 years of age.
For obvious reasons, given his age, X’s personal preferences, particular where he should live and his degree of interaction with each of his parents, must be closely considered by any Judge charged with making a decision pursuant to the provisions of the Family Law Act 1975 (Cth).[1]
[1] Hereinafter referred to as “the Act”.
At the same time, the court cannot ignore its fundamental responsibility, arising under the provisions of the Act, to do what it thinks will be best for X, in both the short and long term, in respect of any parenting order, which it makes.
As a consequence, the court is not in a position to ignore the context in which X has expressed any particular preference and the factors likely to be in place in influencing his ostensible views.
The parties to the proceedings are X’s parents – his father Mr Capri and his mother Ms Goldwell. They disagree about many things to do with X, not least of which is the nature of his relationship with each of them and what are his true wishes.
What they do agree upon (and in respect of which they are not in a position to dispute) is that their relationship, with one another, both as spouses and parents, has been toxic for many years and X himself has been exposed to their conflict, in his home, on a perennial basis.
Needless to say, this state of affairs must have implications for X’s ostensible wishes. It seems inevitable that, caught between his warring parents, there is a risk that he will become aligned with one of them against the other, merely to survive, in an emotional sense. As a consequence, it may not necessarily be the case that the satisfaction of his wishes will achieve the service of his best interests.
This is the nub of this extraordinarily difficult case. The father asserts that X’s views are unequivocal, he does not want to live or engage with his mother, at present, because he regards her as a violent and emotionally unpredictable person.
On the other hand, the mother asserts that she has always been X’s primary provider of both physical care and emotional support and she is attuned to the child’s psychological temperament. It is her case that the child is being coercively alienated from her by the father and, in these circumstances, it is easier for him to ostensibly reject her, so that he can appease his father.
This issue, complicated in itself, is inextricably entwined with an equally complicated one, which has enormous logistical implications for each of the parties themselves, in both the short and long term. It concerns who of them should occupy the former family home located at C Street, Suburb D,[2] with X. Accordingly, in the jargon of family lawyers, this is just as much a sole occupation case, as one concerned with interim parenting arrangements for X.
[2] Hereinafter referred to as “the former family home” or “the C Street, Suburb D property”.
BACKGROUND
The parties married in 2008. Mr Capri is 61; whilst Ms Goldwell is 57. Mr Capri is the CEO of a small business, which manufactures industrial products. He earns approximately $104,000.00 per annum.
Ms Goldwell has qualifications as a finance professional but has not worked formally for the past 20 years. At present, she is in receipt of Centrelink benefits. It is her position that she was subject to financial control, by the husband, during their marriage of thirteen or so years.
There is no doubt, that during this marriage, the parties and X lived at the C Street, Suburb D property. Mr Capri is the registered proprietor of this property, which he brought into the marriage. It is not subject to a mortgage at present.
The proceedings were commenced, in late-August of 2022, when each of the parties filed almost coinciding applications seeking urgent parenting orders in respect of X. Ms Goldwell has also commenced property proceedings. It is clear that the relationship between the parties had been fraught with all manner of difficulties prior to this date, with both the father and the mother being in occupation of the C Street, Suburb D property prior to this date.
Mr Capri seeks that Ms Goldwell vacate the C Street, Suburb D property and he and X live in it. He proposes that there should only be telephone communication between X and his mother. He has no concrete proposals as to what level of interaction X should have with his mother, in the longer term.
For her part, the mother seeks the urgent delivery of X to her, with such delivery, if necessary, to be facilitated by the police. Thereafter, she seeks that she should be entitled to the sole occupancy of the C Street, Suburb D property and that X should live there with her. As with the father, she has no proposals as to what time X should spend with his father, other than it should be as the court determines appropriate.
Accordingly, it would be hard to conceive of a case, in which the positions of the parties could be more diametrically opposed. Essentially, it is the father’s positon that the mother suffers from some form of psychiatric or personality disorder, which renders her violent and reactive. He alleges that Ms Goldwell has assaulted X on a number of occasions and, as a consequence, the child is vehemently opposed, at present, to having anything to do with his mother.
On the other hand, it is the mother’s position that Mr Capri is a coercive and controlling person, who is influencing X against her or alternatively the child has aligned himself, with his father’s position, because it is the easier option for him, in emotional terms, to escape the conflict between his parents.
Ms Goldwell concedes that X is currently a troubled child, who has recently displayed all manner of kinds of emotional dysregulation, including threatening her with a knife. However, she asserts that this demonstrates that X only feels safe to act out his emotional distress, when he is with her. Otherwise, he feels compelled to do as his father directs him to do in order to placate him. In this context, the mother asserts that X has sent her secret notes, indicating his love for her.
Accordingly, not only are the positions of the parties grossly polarised but it is also apparent that each asserts that the other is a compromised parent, who poses a risk, for X, because of both past and likely future exposure to family violence or some other form of emotional abuse.
Given these concerning circumstances, when the matter first came into court before the Registrar, it was ordered that X be independently represented in the proceedings. X’s representative is Ian Charman, who is a highly experienced family lawyer. Mr Charman is to be regarded as a party of equal importance, in these proceedings to both Mr Capri and Ms Goldwell.
Pursuant to the provisions of section 68LA of the Act, Mr Charman is under a statutory obligation to examine all the evidence available to him and the court and advocate the outcome, which he believes will best secure the interests of X.
It is apparent to me that this current crisis has had a long gestation and, as a consequence, many factors are likely to be in play in it. As such, it is likely to require extensive expert examination, particularly in terms of the nature of X’s relationship with each of his parents.
I do not, as yet, have such a detailed report although, as will be detailed in due course, I do have a preliminary assessment, of the family, in the form of a Child Impact Report, which was prepared by Ms B, an experienced Court Child Expert.
In respect of their initial positions, each of the parties relied on hastily prepared affidavits, which reacted to the urgency of the situation. As a consequence, it was difficult for me to formulate a clear chronology of various incidents, involving X and his parents, which had brought the family to the current impasse.
It was however clear that X had been initially in the care of his mother, away from the C Street, Suburb D property, in emergency accommodation, provided by a family violence crisis service. The mother and X had then returned to the C Street, Suburb D home. Thereafter, X and his father had left the property, which Ms Goldwell now occupies alone.
As previously indicated the C Street, Suburb D property is not subject to a mortgage. Ms Goldwell estimates its value to be around $800,000.00. Accordingly, if she remains living there, she would not have to pay rent. She has deposed that she has no cash savings to speak of. As a consequence of behavioural issues manifested by X at school – the mother asserts in response to him being bullied by another child – X has been home schooled since 2020.
This is another issue in dispute between the parties. It is the mother’s position that the father is unable to provide the support and guidance necessary to allow X to be home schooled and, as a consequence, the current reality of X’s situation is that he is not receiving an education.
From the mother’s perspective, this is another reason to allow her to retain possession of the C Street, Suburb D home – it will provide her with a home, at which to return to her role as a home educator, a role which she asserts the father cannot fulfil.
For his part, Mr Capri disputes this assertion, claiming that the educational authorities are content with the level of support that X is currently receiving from him. In addition, he asserts that his employment allows him to work predominately from home and he can discharge many of his duties in the evening after.
The father has recently deposed that he and X have outstayed their welcome, which they have enjoyed with the friends with whom they have been living since leaving the C Street, Suburb D property. In these circumstances, he deposed that he and the child have slept at his office, from time to time, as well as in his motor vehicle. Clearly, if this evidence is correct, such a situation cannot continue.
Pursuant to the provisions of section 67Z of the Act, the parties in parenting proceedings are required to provide formal notice of any issues relevant to the physical and emotional safety of any child concerned in proceedings.
In this context, the father has alleged that the mother suffers from post-traumatic stress disorder and her behaviour is often volatile, manipulative and controlling. On the other hand, in respect of mental health issues affecting the father, the mother has alleged that Mr Capri engages in coersive (sic) manipulation.
In summary, the situation currently confronting the court is one replete with risk, so far as X’s emotional and physical safety is concerned. In addition, it is also apparent that he has insecure and uncertain accommodation and may be at risk educationally. It is also apparent that he is likely to be suffering the psychological sequelae of being exposed to endemic parental conflict.
In this challenging context, it is the court’s responsibility to assess the nature of the various species of risk currently affecting X and put in place the response which it considers to be the most appropriate and proportionate to the risks so assessed.
In Deiter & Deiter[3], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[4]
[3] Deiter & Deiter [2011] FamCAFC 82
[4] See Deiter & Deiter [2011] FamCAFC 82 at [61] (Finn, Thackray and Strickland JJ).
In the present matter, this assessment of risk must occur in the context of an interim hearing. As such, the evidence available is far from complete and yet, as is the case here, the degree of crisis is so intense that a decision must be made expeditiously, notwithstanding the incompleteness of the evidence available.
As previously indicated, the most significant element of evidence not currently available is in the form of a detailed Family Assessment Report and/or some form of psychological/psychiatric assessment of both X himself and each of his parents, given the allegations and assertions made by both Mr Capri and Ms Goldwell of the other regarding some level of psychological impairment.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[5]
[5] See Goode & Goode (2006) FLC 93-286 at 80,901 [68].
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
In the current matter, it is difficult for me to establish a clear chronology of events, particularly in recent times. In this regard, I have been provided with some evidence from the embedded officers employed by both DCP[6] and SAPOL[7], provided to the court pursuant to the provisions of section 69ZW of the Act. This information indicates some department involvement, in the family, but not of any particularly extensive nature.
[6] The Department for Child Protection.
[7] South Australian Police.
From this disparate, sparse and conflicted information, I will endeavour, as best I can, to construct a timeline of X, recent movements, with each of his parents, in and out of the C Street, Suburb D property. What however is clear is that this has been X’s home for the whole of his life to date, until recently. In this context, Ms B reported that X said to him as follows:
I love the family home…it’s the only home I’ve known…it’s the only house I’ve felt safe…[8]
[8] See Child Impact Report dated 23 September 2022 at [20].
It is unclear to me precisely when the parties separated. At one stage, the husband asserted that the parties had been separated, under the one roof, for about 6 years. More recently, a date in December of 2021 has been attributed as the date of their separation, albeit that such separation occurred under the one roof of the C Street, Suburb D home. However, police records indicate that their first involvement, with the family, was on 24 October 2021.
On this date, police attended on the mother and X at a swimming centre, as a consequence of a report of an argument between the two. X reported having been scratched, with car keys, by his mother, after she had been verbally abusive towards him. X stated that abuse of this kind had been going on for a number of years but reported no previous physical abuse. Mr Capri was also spoken to, by police and indicated that he wanted Ms Goldwell out of the house.
On 27 November 2021, the mother is reported as attending upon police to complain that Mr Capri had removed X from her care and she was unaware of his whereabouts. At this stage, she also made allegations that Mr Capri had been coercive and controlling of her, monitoring her movements and limiting her access to family finances.
The end of the police record concludes with the following statement, which illustrates the concerns of an independent police officer, regarding X’s situation and possibly a tactical approach being taken in respect of the occupation of C Street, Suburb D property in the face of looming proceedings. The extract reads as follows:
[GOLDWELL] stated that they both had agreed that they wanted to separate and divorce, but neither party wished to move out of the family home. [GOLDWELL] stated that she had already sought legal advice and it was her intention to remain at the family home for as long as possible. [GOLDWELL] was not in fear of [CAPRI] and it appeared to police that [X] was being unnecessarily exposed to the ongoing issues between the parents. Police provided [GOLDWELL] with information on support services.[9]
[9] See South Australia Police Co-Located Officer report dated 6 September 2022.
On 13 July 2022, the mother contacted a domestic violence housing service and requested emergency housing for herself and X. At this stage, the service was not able to provide a domestic situation for the mother and X and, as a consequence, they were placed in motel accommodation, with a number of other families. The mother concedes that X found this style of accommodation to be extremely challenging and it appears to be the case that it was in this context that the incident regarding X brandishing a knife, at his mother, occurred.
Significantly, in my view, Ms Goldwell did not depose to this incident herself in her affidavit material. Mr Capri alluded to the incident, in his affidavit material, but only in the context of what X had described to him, as he (the father) was not present during the incident. X provided an account of the incident to Ms B describing his actions as being defensive rather than offensive. Ms B herself described that child’s account as being particularly compelling.
For obvious reasons, any incident involving a teenage boy (described his parents as being a strapping 14 year old, bigger in stature than each of his parents) using any sort of weapon in the context of parental discord, causes me a great deal of perturbation. In these circumstances, when the matter first came before me, on 19 September 2022, given the sparse nature of each parties’ affidavit material, I took the unusual course of electing to take oral evidence, from each of the parties themselves.
As a consequence of this direct exposure to the parties, I have formed the provisional view that the parties have very different temperaments and approaches to the responsibilities of parenting. In addition, the intensity of the conflict and dislike between them, was palpable. Mr Charman also was able to form his own impressions of the parties.
The mother described X as a sensitive, creative and kind child, who was becoming increasingly emotionally volatile because of the stress to which he had been exposed arising from his parents’ relationship with one another.
She acknowledged that X had a propensity to explode, from time to time, but asserted that he only did so with her, because he felt emotionally able to do so. In contrast, she asserted that the child was not able to express himself, whilst in his father’s care.
Mr Capri described X as an obedient and subservient child, who liked reading and playing video games. He accepted that X loves his mother and she loves him. He did not suggest that X did not get an appropriate level of physical care, whilst with his mother.
At the time of his oral evidence, Mr Capri indicated to me that he had approximately $12,000.00 saved in the bank. I have more recently been told that he has expended the sum of approximately $9,000.00 in legal fees relating to these proceedings.
Mr Capri has another child, from an earlier relationship. She is 37 years of age and lives in suburban Adelaide, where she cares for her two young children. Whether X’s elder half-sister could provide a place for X to reconnect with his mother, has not been explored to any great degree.
In her evidence, Ms Goldwell deposed that the incident, which led to X threatening her with a knife, occurred when she remonstrated with him, after midnight, that he should stop his internet gaming activities and go to bed. If this is correct, in my view, the mother was entitled to direct the child in this way and it was a grave infraction of parental discipline for the child to behave in the way in which he did.
In any event, following this incident, on 25 July 2022, the mother and child returned to the C Street, Suburb D property. Previously, the mother and child had returned to the home, during the day, for home schooling and returned to the motel accommodation, in the evening. This situation seems to have been untenable in the longer run.
During the course of the proceedings, I have urged the parties, with the assistance of their legal advisors to endeavour to see if there is some means by which the parties could share the property concerned, it being apparent to me that they have been separated, under it one roof, in the past, for extended periods.
Regrettably, neither Mr Kruse nor Mr Janson could propose any such lateral solution. Each party maintains that the only way forward is that the court should direct that one of them should live in the C Street, Suburb D property, with X, and the other should have no time with him.
Accordingly the issue of who should occupy the former family home is one which mathematicians would characterise as a zero sum game – namely only one of the parties can be successful in the desired outcome and the other must lose totally. In mathematical terms – player one's gain is equivalent to player two's loss, therefore the net improvement in benefit of the game is zero. Necessarily, such an outcome is unlikely to lead to the reduction of parental conflict and a greater focus on X’s complex emotional needs.
It is the father’s position that the return of the mother to the C Street, Suburb D home created an intolerable emotional situation for the family, from which he was obliged to remove X, notwithstanding that he had no obvious alternative form of accommodation and had to seek the assistance of friends. In these circumstances, he and X left the C Street, Suburb D property a few days afterwards. It is common ground that X has not interacted with his mother, apart from one brief occasion to which I will refer in due course, in a period of around 8 weeks.
On any view, this is a significant period of time, particularly as it is the mother’s case that she has historically been X’s primary carer, whilst Mr Capri has been the family’s main bread winner. In addition, as previously indicated, it is the mother’s position that X’s home schooling has been severely disrupted.
DCP provided brief written information to the court in mid-September. This information is as follows:
Concerns regarding [X]'s behaviour and the impact his parents separation is having upon him, behaviours including; emotional dysregulation, daily outbursts of violence towards his mother and property, self-harming by head banging, skin picking and suicidal ideation. Concerns that the parents are attempting to alienate [X] from the other parent and making allegations of abuse against each other.
There were also allegations that [X] disclosed abuse, including the mother putting her hand around [X]’s throat and strangling him during an argument and the mother hitting him about the head with her handbag. This information was reported to SAPOL.
Concerns the father has engaged in gas lighting and verbally abusing the mother for many years, and that the mother is going to return to the family home to reside. It was alleged that [X] mimics his father’s behaviour.
Allegations the father perpetrates domestic violence towards the mother and is physically abusive towards [X]. Concerns the father is alienating the mother from [X] and allegedly told [X] he cannot wait until the mother is dead, stating he will dance on her grave. [X] allegedly told the mother "Mum be careful" and "If I go away mum do you promise to keep looking for me". [X] allegedly stated that the father hit him in the face and punched him in the stomach on 28/06/22 after [X] had defended his mother.
A notifier reported concerns for [X]’s emotional wellbeing, believing that [X] was being isolated by the father since they had left the family home. The father was not allowing the mother contact with [X] and the father had ceased [X]’s home schooling and social activities.
The most recent notification reported allegation that the mother's poor mental health was making her volatile, manipulative and controlling. It was alleged that the mother had physically abused [X] and that he had stated that he was scared. The notifier reported that they believed [X] was being put in the middle of his parents’ custody case.[10]
[10] See DCP Co-Located Officer report dated 2 September 2022.
These matters have not been investigated by the Department. Clearly, they indicate X is a vulnerable child, who is currently enmeshed in labile circumstances. In essence, the competing risk factors, arising in the case, are summarised as follows:
·X is self-harming in response to the conflict between his parents.
·X has been assaulted by his mother.
·X has been assaulted by his father, whilst protecting his mother.
·The mother’s mental health renders her emotionally labile and potentially violent to X, who is frightened of her.
·The father is a coercive and controlling person and X is mirroring his father’s behaviour, particularly in regards to his mother.
·The father’s removal of the child from his mother is indicative of a desire on his (the father’s) part to alienate the child from his mother, to the long term emotional detriment of X.
In her affidavit material, the mother asserts that since X’s removal from her, he has left her a number of secret notes, one of which reads I love you but please stay away. It is the mother’s position that this note is an expression of X’s true wishes, which is that he wants to be with his mother but feels compelled to align himself, with his father, in order to placate his feelings.
It is also apparent to me that the parties have very different views about issues to do with X’s health and emotional support. The mother is an advocate of homeopathy and has taken the child to see a counsellor, who is not psychologically trained. It would seem to be the father’s position that these interventions are not appropriate.
It is the position of Mr Charman that X is in grave need of professional psychological support. I agree. However, at this juncture it seems improbable that the parties themselves will be able to agree on an appropriate professional to provide this support and/or counselling.
The hearing, begun in the morning of 19 September 2022, given the incident of the parties providing oral evidence, was interrupted by the luncheon adjournment. During this adjournment, I was informed that fortuitously a Child Impact Report, arranged for another family, which had been scheduled for the following day had fallen through.
For obvious reasons, it was apparent to me that it would be potentially highly illuminating of the extraordinary level of conflict between the parties and its impact upon X, if his views could be canvassed by an independent expert person. It was in this context that Ms B was engaged to interview X and his parents in the days following.
During the course of his oral evidence, as indicated, Mr Capri conceded that X loved his mother and she loved him. In these circumstances, I enquired of him as to whether it would be possible for X and his mother to engage for a brief interaction, such as a meal, just to touch base with one another.
In this context, I asked Mr Capri what was X’s preferred restaurant/culinary option and was advised that he enjoyed sushi, particularly that provided by E Restaurant at Suburb F. Ms Goldwell indicated her willingness to attend this meal.
In my view, the intention of this order was clear. Mr Capri was to deliver the child to the restaurant and depart, returning to collect X at the time specified in the order. This did not occur and the order miscarried. I am concerned that, whilst professing his support of X having a relationship with his mother, the father did not put his protestations into practice.
MS B’S CHILD IMPACT REPORT
Ms B has not been formally cross-examined in these proceedings. In addition, her report provides the following rider:
The Child Impact Report provides to the parties and the Court preliminary expert advice about the needs and experiences of children. Any views expressed or professional recommendations made by the Court Child Expert are, of necessity, limited.[11]
[11] See Child Impact Report of Ms B dated 23 September 2022 at page 3.
Ms B summarised the dilemma facing the court in the following terms:
Regardless of whether either parent’s account is accepted, it seems that in the absence of collaborative and mutually supportive and respectful parenting, a now teenager [X] is rebelling against his parents’ seemingly markedly different parenting styles and is choosing the least conflictual option, namely his father.[12]
[12] See Child Impact Report of Ms B dated 23 September 2022 at [9].
Ms B accepted each parties’ account of X as being a sensitive and big-hearted boy. As a consequence, she opined that he would have been detrimentally affected by having had to live through his parent’s endlessly chaotic and highly dysfunctional relationship. In this context, X reported that he could not remember his mum and dad ever getting on rather, it was his position that he thought their behaviour was normal.
To Ms B, X described being scared of his mother, whom he described as acting like a wild animal. By way of explanation, he complained that his mother had bitten him and, as a consequence, he needed to be home with dad. In this context, he described the last eight weeks of living solely with his father as being calm and stress free.
Accordingly, so far as X’s wishes and views, as recorded by Ms B are concerned, it is to have nothing presently to do with his mother, whom he regards as being toxic. Significantly, X did indicate to Ms B that he still loves his mother.
However, so far as X’s present views are concerned, he is strongly desirous of returning to the C Street, Suburb D home, in which he is likely to feel safe, provided his mother is not there. In the context of the ill-fated meal, at E Restaurant, X reported feeling acutely uncomfortable because both his parents were present.
This would seem to rule out any sharing of the home on a temporary basis. As previously indicated, neither party has proposed, even as a temporary emergency response, the parties cycling through the C Street, Suburb D home, whilst X remains in situ.
To sum, Ms B reported as following:
[X]’s apparent rejection of his mother is in the context of chronically disputing parents. His seemingly angry and alienated stance toward his mother could be construed as one way of adapting to such circumstances, with such a coping response raising questions about whether this may become a maladaptive and enduring way of relating to others, which would be to his detriment developmentally, in the long term.[13]
For such a reportedly temperamentally vulnerable child as [X], such an aligned stance could be interpreted as an expected response to an intolerable situation, with [X] likely to be able to recover his relationship with his mother as he matures, provided he is not forced into a relationship with her. This process might be accelerated if [X] were to attend counselling with a specialised therapist, who may be able to assist him to understand and process his seemingly intense mixed feelings arising from his reported lived experience of having been allegedly subject to inappropriate or unsafe behaviours by the mother (such as biting), as well as being an only child in a high conflict family.[14]
[13] See Child Impact Report of Ms B dated 23 September 2022 at [23].
[14] See Child Impact Report of Ms B dated 23 September 2022 at [26].
Ms B did not support the return of X to his mother’s care, in the C Street, Suburb D property, given his current resistance to her. In particular, Ms B indicated that she would be concerned for X’s physical and emotional safety, if he was allowed to be alone in his mother’s care, at this point, particularly given his report of having raised a knife against her.
Ms B also recommended that X access expert psychological support to help him process his conflicted feelings about his mother as well as to assist him dealing with the current crisis and in time to be therapeutically in resuming his relationship with his mother.
At this stage, Ms B only proposed that mother and child have electronic communication with one another, although she did not rule out the prospect of X’s older half-sister supervising a face to face visit, at some stage in the future.
In all these circumstances, Ms B supported Mr Capri’s proposal that he return to live in the C Street, Suburb D property, in the short to medium term, whilst also noting the mother’s obvious financial constraints. Ms B was also in favour of attempts being made to normalise X’s life, as much as practical, particularly in the sense that he resume his prior extra-mural activities such as music lessons and his sports activities.
The case returned to court on 26 September 2022. In my view, Ms B’s report was telling. However, at the same time, I recognised the significance of expelling one party to a marriage from their family home, particularly in circumstances where the financial resources of each were so straightened and neither could point to any obvious alternative sources of accommodation.
In these circumstances, I made the following orders:
(1)On or before 29 September 2022 the mother file and serve a further Affidavit detailing the following:
(a)Her response, if any to the Child Impact Report of [Ms B];
(b)Her attempts thus far to obtain emergency accommodation and/or a private rental for herself and how long she needs to obtain alternative accommodation and what is the likely cost thereof to herself; and
(c)Any evidence on which she wishes to rely in respect of the child’s current situation and in respect of what occurred on 19 September 2022.
(2)On or before 3 October the father filed and serve a further Affidavit detailing the following:
(a)His response, if any to the Child Impact Report of [Ms B];
(b)What financial assistance in dollar terms he can provide to the mother to obtain emergency accommodation for herself;
(c)How long he and [X] can continue sharing accommodation with friends;
(d)The practicalities and expense of him obtaining alternative accommodation for himself and [X] on the private rental market; and
(e)Any evidence on which he wishes to rely in respect of the child’s current situation and in respect of what occurred on 19 September 2022.
(3)Further consideration of the matter is adjourned to 6 October 2022 at 2.15pm regarding the sole occupancy issue to take place at Court on a face to face basis.
The aim of these orders being to put some flesh on the bones of each of the party’s claim for sole occupancy and to enable the court to make some appraisal of the logistical difficulties confronting each of them, so that it could properly undertake its task of balancing convenience.
Mr Charman’s position is that, although he is not strictly required to form a view in respect of the sole occupancy issue, any analysis of the issue from the perspective of X’s best interests, dictates that he should return to the home as soon as possible and remain in the care of his father. He reaches this view on the basis that Ms B’s report is the only objective evidence available to the court and her view cannot be criticised as being obviously flawed or mistaken.
In this context, it is Mr Charman’s view that both parties share culpability for the current emotional tumult being suffered by X, which is a direct consequence of him having been exposed to a significant level of parental conflict, over very many years.
In these circumstances, although the parties may disagree as to whether X has or has not been actively alienated from his mother by his father, the fact is that the two (mother and child) are currently estranged from one another and no rapprochement can be engineered between them, given what happened at E Restaurant.
I agree. Rather, in my view, the court must approach the case from the perspective of what outcome will best provide X from some respite from the parental conflict whilst further information is gathered. Such information is likely to take the form of a more comprehensive family assessment report; expert reports on the psychological/psychiatric health of each of the parties; and possibly some expert appraisal of X’s psychological health.
LEGAL CONSIDERATIONS
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[15]
[15] See section 60CA of the Act.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.
Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B. There are two primary considerations, which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration. Future protective issues for a child are the court’s priority.
However, at the same time, the court cannot ignore potential benefits arising for a child of maintaining a meaningful level of relationship with a parent. This is the nub of Ms Goldwell’s case, she asserts that if X does not live predominantly with her, he will be at significant risk of losing his entitlement to have any sort of relationship with her, let alone a meaningful one, because of the machinations of Mr Capri.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[16] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[16] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26].
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Axiomatically, the mother has played a very significant role in X’s life until now. Mr Capri does not dispute that she was X’s main provider of care or previously undertook his home schooling. Significantly he concedes X loves his mother and his mother loves him. A state of affairs, X acknowledged to Ms B, albeit with significant qualifications.
It is therefore a significant aspect of the father’s proposal, as supported by the ICL, that the court should not currently make any orders for the mother to interact directly with X and there is no mechanism proposed to repair this central relationship for X. This is a significant risk factor in the case.
However, the case is also replete with other forms of risk arising for X in the form of being subject, in future to some form of abuse or exposure to family violence. As previously indicated, protective considerations are to be given pre-eminence.
The expression Abuse is defined by section 4(1) of the Act. Besides assault, it includes causing a child to suffer serious psychological harm, including harm which arise from the child being subjected to or exposed to family violence. In this case, both parties assert the other has assaulted X. X has reported being assaulted, by his mother, to police.
However, more significantly, each party asserts that the other is subjecting X to abuse in the sense of causing him to suffer some species of serious psychological harm as a consequence of the degree of control or coercion each exerts over the other and him and his exposure to this type of behaviour. Essentially, each asserts that the court needs to take serious action immediately to protect X.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·repeated derogatory taunts; and
·the withholding of financial support.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. Given the nature of X’s reports to Ms B, it seem an unassailable fact that X has been exposed to some form of family violence, although whether this emanated more from the mother or the father cannot be definitively determined in the context of these truncated proceedings.
As with many of the controversies, the chief of which are who of the parties has the greater capacity to provide for X’s emotional and intellectual needs [section 60CC(3)(f)] and which of them has the greater degree of parental insight [section 60CC(3)(i)] these issues cannot be resolved definitively at the interim stage.
In this context, as previously indicated, it is clear that the court is required to consider child protection issues, in its decision making processes as a priority, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In this case, in my view, protective concerns relating to X, must be the court’s pre-eminent consideration. Sadly, there can be no optimal outcome, for X, as a consequence of the polarised nature of his parents’ respective positions and the extreme degree of hostility between them. Rather, the court must do the best it can to secure the optimal outcome for X, whilst bearing in mind the limitations of the evidence before it at this stage.[17]
[17] See SS v AH [2010] FamCAFC 13 at [100] and Eaby & Speelman (2015) FLC 93-654 at 80,332 [19].
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a);(b);(d);(f);(g);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·Any views expressed by the child and factors impacting on such views;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the children’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
·The cultural maturity of the child concerned;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Family violence.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
In the context of the current matter, each party describes X as a sensitive child. Accordingly, in my view, X’s age – fourteen years – must be a significant factor in the disposition of the interim proceedings. He cannot be regarded as anything other than a reasonably mature child, in chronological terms.
In addition, as a consequence of his lived experience, it must be the case that he is cognisant of the hostility between his parents and, at least to some degree, the extent of which is both uncertain and controversial, has made a personal decision as to how he will respond to it. This certainly is the effect of Ms B’s opinion. She has opined that the manner in which X elected to delineate his views to her, in respect of his immediate living circumstances was an expected response to an intolerable situation from his perspective.
The applicable legislation requires me to consider any views expressed by the child concerned, and, any factors which may affect the weight to be given to those views, such as the child’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[18]
[18] See Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with.
However, once a child’s views have been canvassed, particularly in respect of an older child, such as X, who is regrettably enmeshed in the conflict between his parents, in my view, great care should be taken, by the court, in disregarding what that child has said in concrete terms. It is significant, in my view, that X’s view are not hedged with any degree of equivocation. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given proper and realistic weight rather than token regard.[19]
[19] See H v W (1995) 18 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is a process of intuitive synthesis.[20] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[20] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
I am aware that Ms B’s opinion is both controversial and untested. However, she has a significant advantage, over me, in these proceedings, in the sense that she has met and directly interacted with X. In addition, she is a highly experienced family consultant. In these circumstances, in my view, her opinion and recommendation must be given a significant amount of weight.
In an earlier case, Naslund & Oberlin[21] I said as follows in respect of the use to which a family report could be put in an interim hearing:
[21] Naslund & Oberlin [2020] FCCA 2295 at [82] – [86].
The sole object of any parenting case is on the pursuit and safeguard of the best interests of the children affected, not on the perceived rights of the parents concerned. Because of this focus, it is invariably the case that the court obtains some form of expert appraisal of the family involved, which includes an observation of the child or children concerned, which, depending on the age of those children, will include some form of interview with them by the relevant expert.
…
It is frequently the case that recommendations made by a family report writer are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier interim hearing stage.
In this context, one parent may seek to re-agitate parenting arrangements in advance of the scheduled final hearing, for which the family report was ordered in the first place, on the basis of recommendations made. This scenario has the potential to create its own dilemmas, which include the following:
•It is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned;
•This is because it is the court which is best placed to make findings of fact, regarding issues of credit, based on how witnesses, including expert ones, perform under cross-examination;
•However, any such expert has a significant advantage, over the court, because he/she has had the opportunity to have a face to face interaction with the child or children concerned, which the court will never have;
•On the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny, which cross-examination provides;
•In addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether his/her recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.
For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a family report. On the one hand, the court should avoid an excessive number of interim hearings.
Notwithstanding these potential pitfalls, in my view, Ms B’s recommendation must be regarded as the definitive factor in shaping the outcome of the case. The effect of her evidence is that it is the mother who has exposed X to family violence. More significantly, he is a child of mature years and apparent insight who is expressing a strong view not to be placed in his mother’s care or, at this stage, to have any interaction with her.
I concede that it is possible that X is being manipulated adversely by his father or indeed is acting out his father’s previous coercive and controlling behaviour directed towards his mother. This is a risk which must be considered. However, in my view, a greater risk is that the child feels unheard and unsafe if directed to return into his mother’s care, regardless of whether such care is provided in the C Street, Suburb D home. The court must proceed with extreme caution given the labile dynamic of the family.
These considerations militate in favour of the court adopting the position advocated by the father regarding X’s on-going care, including in respect of him being authorised to occupy the former family home. In addition, if other evidence comes to hand, at a late stage, this decision is capable of reversal. In this context the Full Court in the case of Marvel & Marvel (No. 2)[22] has sagely said as follows:
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. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.[23]
[22] Marvel & Marvel (No 2) [2010] FamCAFC 101.
[23] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
Sole Occupancy
I am acutely aware of the prolixity of these reasons for judgment. They are a reflection of the gravity of the decision, which I must make, which inevitably must result in the expulsion of one of the parties to a marriage from the home, which they have occupied, as a couple and family for close to fifteen years.
The moment of the decision is intensified by the fact that it is axiomatic that neither party has an obvious alternative form of accommodation and, in the mother’s case, she is bereft of any extensive means of financial support. It is a significant thing indeed to place a person, who was hitherto entitled to occupy a piece of property, potentially on the street.[24]
[24] See O’Dea & O’Dea (1980) FLC 90-896 at 75,648 per Murray J.
However, it cannot be said that the court has not offered the parties time to consider their respective positions and craft some stop gap solution to the dilemma which the case throws up. Regretfully, they approach the case with a mutual lack of empathy or sense of reciprocity for the other or any proposal for shared problem solving in the face of the crisis to which both of them have contributed.
Given what occurred at E Restaurant and my concerns that Mr Capri approached the intervention with a desire that it not succeed, I have no confidence that any sharing of the property could conceivably work. More likely than not, such an outcome, even if very carefully approached, is likely to intensify rather than reduce the emotional tension on X.
Ms Goldwell has now brought an application for property settlement. Although Mr Capri has not a yet formally filed a reply and statement of his financial circumstances, this aspect of the case will proceed to conciliation in late January of 2023. In these circumstances, there are two potential paths available to the court to secure the exclusion of one of the parties from the C Street, Suburb D property – that provided by section 114 of the Act and that provided by section 68B.
Pursuant to section 68B, the court may make any injunction in respect of a child, as it considers appropriate for the welfare of the child concerned. Pursuant to section 68B(1)(c) this can include an injunction restraining a person from entering into or remaining in a place of residence of any relevant child.
Accordingly, if the court makes an order that X live with his father, it may also make an injunction restraining Ms Goldwell from entering or remaining at the C Street, Suburb D property, if it considers it appropriate to do so to secure the welfare of X.
The relevant portion of section 114, which is invoked in respect of proceedings relating to matrimonial causes, reads as follows:
114(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;
…
(e) an injunction in relation to the property of a party to the marriage;
(f) an injunction relating to the use or occupancy of the matrimonial home.
Given the wide terms of reference of the section, I am satisfied I have the authority to authorise the Mr Capri’s occupation of the house to the exclusion of Ms Goldwell, bearing in mind his legal proprietorship of the property and notwithstanding the fact that she presently occupies the property and it has been her home for many years.
The relevant discretion is to be exercised by reference to what is considered to be proper. The court has authority to make such orders in proceedings which relate to a matrimonial cause. Clearly the current proceedings, are such a matrimonial cause, given the institution of property proceedings before the court.
In her application for property settlement, as yet, as I understand it, formally unanswered by Mr Capri, Ms Goldwell seeks the sale of the C Street, Suburb D property and that she receive 70% of its net proceeds. She also seeks a superannuation splitting order. As previously indicated, notwithstanding the lack of a response from the husband, Judicial Registrar Thomas has referred the matter to a conciliation conference on 30 January 2023.
The Full Court of the Family Court has described the criteria to be applied to a sole occupancy application as “surprisingly vague”.[25] The seminal case regarding the use of section 114, in sole occupation applications, is Davis v Davis.[26]
[25] See S & S (2002) FamCA 59 at [32].
[26] Davis v Davis (1976) FLC 90-062.
In that case, it was said that the matters to which the court should have regard, in its deliberations, as to whether it was “proper” to make a sole occupation included the following:
·The means and needs of the parties;
·The needs of any children concerned;
·Hardship to either party, including any relevant children;
·If relevant, conduct which justifies one party being expelled from the former matrimonial home.[27]
[27] See Davis v Davis (1976) FLC 90-062 at 75,309.
These various considerations can be summarised under the rubric of the balance of convenience. The court is called upon to weigh up competing claims of right, advanced by each of the parties, and balance the convenience for one party in the injunction being granted with the inconvenience such an injunction is likely to cause to the other.
More recent cases have focussed on issues related to strict practicality, within what has been coined, the realities of family life. The question which it has been said the court should pose for itself being:
[I]s it really sensible to expect a wife … to endure the pressures which the continued presence of the other spouse will place upon them.[28]
[28] See Bassett v Bassett (1975) 1 All ER 513 at 520 approved in Page v Page (1981) FLC 91-025.
Mere inconvenience to the parties concerned is not sufficient to justify a sole occupancy order. The court has been directed to be alive to the risk that a spouse may use a sole occupancy injunction as a tactical weapon in the ongoing matrimonial conflict.
Accordingly, caution is required in assessing whether such an order should be made, particularly as, at the interim stage, it is often likely to be difficult for the court to predict who of the parties ultimately is likely to retain control of the property concerned, as issues to do with contribution have not as yet been determined.
In Price Lindenmeyer J indicated there had been a “softening of the court’s attitude” towards exclusive occupation orders. There was now no onus on an applicant for such an order to demonstrate irrational, intolerable or awful behaviour on the part of the party whom it was sought to exclude.
Rather:
[T]he court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.[29]
[29] See Price (unreported) 12 July 1982 approved in S & S (2002) FamCA 59 at [35].
As the power to grant an injunction is a discretionary one, it must not be exercised lightly, particularly if any interference with a spouses proprietorial interests is envisaged. As such, the court should not proceed on “vague or uncertain claim[s]”.[30]
[30] See Sieling v Sieling (1979) FLC 90-627 at 78,264.
In my view, these authorities demonstrate that the court must move cautiously in determining whether to exclude a spouse from a jointly held property, pending resolution of competing claims in respect of that property.
The court must examine the entire circumstances of the parties concerned and determine whether, on the facts of a particular case, such an order is justified. Essentially, the court must determine whether any order is proper and ensure that individualised justice is delivered.
DISCUSSION
Ms Goldwell has deposed that she has investigated the possibility of her renting accommodation in the area near to the C Street, Suburb D home. She deposes that the internet site realestate.com.au indicates that 2 bedroom rentals, in the area, range between $420.00 and $470.00 per week, with bonds of between $2,520.00 and $2,880.00.
As previously indicated, Ms Goldwell is in receipt of Centrelink benefits. She receives $334.20 per week together with rental assistance of $75.80. It is her evidence that she could not afford to rent and live, given her financial situation.
In addition, she has deposed that the rental market, in suburban Adelaide, is strong, with demand outstripping supply. The implication of her evidence being that she is not likely to be regarded as an active tenant in such a competitive market.
Finally, Ms Goldwell has deposed that she is not able to access domestic violence accommodation, as she is no longer living with Mr Capri. It was the effect of her earlier oral evidence that she has no friends or family available to her in the Adelaide region, with whom she could stay. Accordingly, the thrust of her evidence is that, for the court to make the order which Mr Capri seeks, would effectively condemn her to homelessness.
It is the father’s position that the mother has several close friends, in the Adelaide area, with whom she could seek refuge, on an emergency basis, whilst she makes alternative arrangements. The mother disputes this assertion. There is no evidence, from any of them, to indicate the closeness of their respective relationships to Ms Goldwell and what would be the extent of the assistance, if any, which could be provided.
Mr Capri has also asserted that he continues to pay the outgoings in respect of the C Street, Suburb D property and, if he and X return there, he will be able to rationalise other areas of his expenditure. However, at the present time, it is his position that he can only afford to contribute the sum of $150.00 per week towards Ms Goldwell’s accommodation expenses.
Mr Capri has further deposed that his legal expenses have been far greater than he originally anticipated, which has depleted his savings. In addition, he wishes to be able to channel some of his income towards providing appropriate mental health support to X.
CONCLUSIONS
This is a heart-breakingly difficult case, which offers no easy or ready solution. Whatever, is the ultimate outcome, one of his parents will be desperately disappointed. X, is a child caught between his warring parents and is clearly adversely affected by this state of affairs. It would appear axiomatic that he is a vulnerable child, both psychologically and in respect of his education.
On the basis of Ms B’s evidence, I accept that he has currently elected to align himself with his father, as a mechanism to gain some sense of emotional equilibrium, given his exposure to the conflict between his parents. The irony of this situation being that it is he who is currently couch-surfing and it is his interests, which have paramountcy over those of his parents.
The independent evidence, largely informed by what X said to Ms B, indicates that it is the mother who has exposed the child to some incidents of family violence. The police records also confirm this to some extent, although I acknowledge that this evidence is far from extensive and remains controversial.
I accept that X desperately wants to return to the former family home. More significantly, the evidence currently indicates that he would be vehemently opposed to occupying the C Street, Suburb D property, with his mother. There is some suggestion that he may be open to spending time with his mother, at some indeterminate stage in the future. However, in my assessment, it would be imprudent of the court to attempt to force this issue, at this fraught stage of things.
I accept that Ms Goldwell has no obvious alternative form of accommodation, however, at the same time, I must focus on the best interests of X and make whatever injunction, I consider is appropriate to ensure his welfare, not the welfare of one or other of his parents.
In all these circumstances, the bitter impasse between the parties leaves the court with no alternative but to make the order, which it considers will best serve X’s interest, in order to break this dreadful deadlock. As I have previously indicated, I regard it as untenable that X should continue to live effectively hand to mouth, in piecemeal accommodation, whilst he wishes desperately to return to his former home.
In these circumstances, the court must make a decision as to whom of his parents X should live, pending the provision of further evidence to it. Given the tenor of Ms B’s report, it is clear to me that, notwithstanding Ms Goldwell’s stringent criticisms of his prior conduct, towards both her and X, that parent should be Mr Capri.
In these circumstances, regrettable as it is, in my view, the court has no viable alternative, which will serve X’s best interest, other than to direct Ms Goldwell to vacate the C Street, Suburb D property. However, at the same time, the court must do what it considers proper. What is proper must be related to what is realistic. Ms Goldwell needs some time and some financial assistance to move, regardless of the fact that such a delay will compound the difficulties presently confronting X.
In all the circumstances, I propose granting her a period of 14 days, from the date of these orders (11 October 2022) to move out of the C Street, Suburb D property. This will also give her some time to approach sources of emergency housing and perhaps secure a cash advance or loan from either a friend or Centrelink.
In regards to the assistance to be provided by Mr Capri, I will direct that he provide Ms Goldwell with the sum of $3,000.00, within 14 days of today’s date and provide proof to the court that he has provided such an advance. Thereafter, I will direct that he pay $200.00 per week to a bank account, to be nominated by the solicitors for Ms Goldwell, on Monday of each week, by direct debit.
The sum of $3,000.00 is calculated on the basis that it will provide a significant sum to put towards a security deposit and rent in advance. It will provide some buffer for Ms Goldwell. I appreciate it may be difficult for Mr Capri to find the sum, although he has been able to pay his solicitor’s fees. At the end of the day, it remains the case that he currently has access to the equity in the C Street, Suburb D home, which is worth in excess of $800,000.00. Ms Goldwell has commenced proceedings seeking the settlement of matrimonial property proceedings between the parties.
Her claim is based on a marriage in excess of thirteen years, which produced one child. On any view, Ms Goldwell must have a significant equitable interest in the property by dint of her various contributions made over this lengthy period, including parenting and homemaking ones, regardless of any contrary assertions made by Mr Capri. In addition, her prospective needs are likely to be significant.
The sum of $3,000.00 represents less than .05% of the capital tied up in the C Street, Suburb D property. As such, when compared with Ms Goldwell’s likely entitlements to a matrimonial settlement, it represents a trifling sum, which can be taken into account when that final reckoning is made. In my view, it represents a proper outcome to the difficult, polarising and challenging circumstances, which this case throws up.
These orders will provide challenges, so far as compliance is concerned, for each of the parties concerned in them. From the court’s perspective, that is a given. However, trite as it may appear, the court has no alternative, in these extraordinarily difficult circumstances, other than to make orders, such as these, in the hope that they provide a proper balance, in the level of inconvenience, which must inevitably be occasioned to each of the parties, given the intractable nature of the impasse between them. It is untenable that the current situation, with all the emotional deficits, which it entails for X, to continue.
Given the submissions of the ICL, regarding X’s current psychological vulnerability, an issue which was also addressed by Ms B, I will further direct that the father attend, with X, upon the child’s general medical practitioner, with the purpose of either securing a GP Mental Health Care Plan for the child or a referral to Child & Adolescent Mental Health Services (CAMHS) to ensure that the child obtains appropriate psychological support.
The father is thereafter directed to advise the Independent Children’s Lawyer and the mother of these arrangements. The solicitor for the father is authorised, by this order, to provide a copy of Ms B’s report to the psychologist so appointed.
Given both the provisional nature of Ms B’s report and its controversial nature, this is a case which cries out for an urgent Family Report. I will order that such a report be prepared as soon as possible, pursuant to the provisions of section 62G of the Act.
By necessary implication, the effect of these reasons for judgment is that an interim order will be made that X live with the father and he, pending further order, be conferred with sole parental responsibility for ensuring X’s care, welfare and development, including ensuring that he continues to progress, with his home schooling, to a level deemed satisfactory by the South Australian Department for Education.
I will make orders, in the terms proposed by Mr Capri, regarding X having electronic communication with his mother. In the hope that the resolution of these proceedings will lead to an easing of tension in the family, I will also order that X spend time, with his mother, at such times and on such occasions, as X agrees from time to time.
I will further order that the father make available to the mother all relevant information regarding X’s home schooling and authorising her to contact the education authorities in respect of it. In addition, the father is directed to inform the mother of all medical appointments and treatment received by X, including in respect of his mental/psychological health and inform her of any medical emergency pertaining to him.
Finally, I will make an order restraining each of the parties from denigrating the other in the presence and hearing of the child. This is to emphasise that the dispute between them is their dispute, not X’s. Thereafter, I will adjourn the case to a date following the conciliation conference.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 11 October 2022
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