CHANG & SONG

[2018] FamCA 845

FAMILY COURT OF AUSTRALIA

CHANG & SONG [2018] FamCA 845

FAMILY LAW – CHILDREN – Parenting – Interim living arrangements for child – Where there are allegations that one parent is restricting the other parent’s time with the child

FAMILY LAW – PROPERTY – Who should live in the former matrimonial home

Davis & Davis (1976) FLC 90–062
Fedele and Fedele (1986) FLC 91-744
Goode & Goode (2006) FLC 93-286
Tansell and Tansell (1977) FLC 90-307

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Chang

RESPONDENT: Ms Song

FILE NUMBER: SYC 4261 of 2018

DATE DELIVERED: 18 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Priestly

SOLICITOR FOR THE APPLICANT: Boyce Family Law and Mediation

COUNSEL FOR THE RESPONDENT: Mr Grew

SOLICITOR FOR THE RESPONDENT: Coleman Greig Lawyers

Orders

1. X (the child) is to live with the mother during school term time from after school on Friday until the commencement of school the following Friday. The first period of time to commence Friday 21 September 2018 and then each fortnight thereafter during school term.

2. The child is to live with the father during school term time from after school on Friday until the commencement of school the following Friday. The first period of time to commence Friday 19 October 2018 and each fortnight thereafter during school term.

3. The mother is to have the child live with her from after school Monday 15 October 2018 until school time on Friday 19 October 2018 as an extra period of time in lieu of the time she should have been spending with the child had the subject order been made immediately following the hearing.

4. In the event of either party being unable to care for the child overnight during any period he is scheduled to be in their care pursuant to these orders, that parent is to give as much notice to the other of that particular period of time and offer that parent first opportunity to care for the child during the particular period. The parent receiving the offer of additional time to care for the child is to respond within 48 hours and in the absence of such response the parent with responsibility for the care during that particular time is to make other arrangements for the child’s care in their absence.

5. The parties may by written agreement change the days or parts thereof for the care of the child between them. Should any such agreement be reached, it is to be set out in exchanged emails and a hard copy of the emails attached to a hard copy of this order by each parent.

6. The father’s application for exclusive occupation of the former matrimonial home is refused at this time.

7. Each party may apply to relist the matter regarding parenting orders, on short notice, should that be necessary, prior to the listing for final hearing. The party listing is on notice that any listing found to be unnecessary will be at the listing party’s risk as to costs.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 4261 of 2018

Mr Chang

Applicant

And

Ms Song

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an application in relation to parenting, pursuant to an Application in a Case filed by the father Mr Chang on 4 July 2018. That application is in relation to the child of the parties X (the child), born in 2009. The mother, Ms Song, opposes that application.

2. The parties handed up a consent document which was marked as Exhibit A on the day. That document set out the following.

   PARENTING

   1.That the parties shall have equal shared parental responsibility for the child [X] born … 2009 ("the child").

   2.That the child shall live with the Husband as follows:

   2.2For one half of all New South Wales school holiday periods occurring at the end of Terms 1, 2 and 3 as agreed between the parties but failing agreement:

   2.2.1In all even numbered years from 9.00 am on Monday of the second week of the holidays until 9.00 am on the following Monday or the commencement of school whichever is the latter; and

   2.2.2In odd numbered years from 9.00 am on Monday of the first week of the holidays until 9.00 am on Monday in the second week of the holidays.

   2.3For one half of all New South Wales school holiday periods occurring at the end of Term 4 as agreed between the parties but failing agreement:

   2.3.1In all even numbered years from 9.00 am on Monday of the third week of the holidays until 9.00 am of the fifth week of the holidays; and

   2.3.2In odd numbered years from 9.00 am on Monday of the first week of the holidays until 9.00 am on Monday of the third week of the holidays and from 9.00 am on Monday of the fifth week of the holidays until 9.00 am on Monday of the sixth week of the holidays or the commencement of school which is the latter.

   2.4Each year on the child's birthday, if he is not already in the care of the Husband, then as agreed but failing agreement:

   2.4.1From 3:00pm or the conclusion of school until 6:30pm if the birthday occurs on a Sunday to Thursday; or

   2.4.2From 3:00pm until 8:00pm if the birthday occurs on a Friday or Saturday (or Sunday if the Monday is a public holiday or non-school day for the child).

   2.5Each year from 9:00am until 5:00pm on Father's Day if the child is not already in the care of Husband;

   2.6Each year on the Husband's birthday as agreed between the parties but failing agreement if it falls on a weekday from 3:00pm or the conclusion of school until 9:00pm and if it falls on a weekend day from 9:00am until 5:00pm.

   2.7In each alternate even year, commencing 2020, on Easter Sunday and Easter Monday as agreed between the parties and failing agreement from 10.00 am Easter Sunday until 6.00 pm Easter Monday;

   2.8In 2018 and each alternate year thereafter from 4.00 pm Christmas Eve until 4:00pm Christmas Day;

   2.9In 2019 and each alternate year thereafter from 4:00pm Christmas Day until 4:00pm Boxing Day.

   3.That the child's time with the Father in accordance with Order 2 herein is specifically suspended, so that the child lives with the Wife at all other items including but not limited to:

   3.2For one half of all New South Wales school holiday periods occurring at the end of Terms 1, 2 and 3 as agreed between the parties but failing agreement:

   3.2.1In even numbered years from 9.00 am on Monday of the first week of the holidays until 9.00 am on Monday in the second week of the holidays.

   3.2.2In all odd numbered years from 9.00 am on Monday of the second week of the holidays until 9.00 am on the following Monday or the commencement of school whichever is the latter; and

   3.3For one half of all New South Wales school holiday periods occurring at the end of Term 4 as agreed between the parties but failing agreement:

   3.3.1In all odd numbered years from 9.00 am on Monday of the third week of the holidays until 9.00 am of the fifth week of the holidays; and

   3.3.2In even numbered years from 9.00 am on Monday of the first week of the holidays until 9.00 am on Monday of the third week of the holidays and from 9.00 am on Monday of the fifth week of the holidays until 9.00 am on Monday of the sixth week of the holidays or the commencement of school which is the latter.

   3.4Each year on the child's birthday, if he is not already in the care of the Wife, then as agreed but failing agreement:

   3.4.1From 3:00pm or the conclusion of school until 6:30pm if the birthday occurs on a Sunday to Thursday; or

   3.4.2From 3:00pm until 8:00pm if the birthday occurs on a Friday or Saturday (or Sunday if the Monday is a public holiday or non-school day for the child).

   3.5Each year from 9:00am until 5:00pm on Mother's Day if the child is not already in the care of Wife;

   3.6Each year on the Wife's birthday as agreed between the parties but failing agreement if it falls on a weekday from 3:00pm or the conclusion of school until 9:00pm and if it falls on a weekend day from 9:00am until 5:00pm.

   3.7In each alternate odd year, commencing 2019, on Easter Sunday and Easter Monday as agreed between the parties and failing agreement from 10.00 am Easter Sunday until 6.00 pm Easter Monday;

   3.8In 2018 and each alternate year thereafter from 4:00pm Christmas Day until 4:00pm Boxing Day.

   3.9In 2019 and each alternate year thereafter from 4.00 pm Christmas Eve until 4:00pm Christmas Day;

   4.That in the event that either parent is unable to care for the child due to work, travel or other personal commitments that parent shall provide to the other parent not less than fourteen (14) days written notice and other parent shall care for the child during such time and thereafter facilitate make up time within three (3) days of receiving written notice.

   5.That, for the purpose of facilitating the parties' time with the child under these orders, changeover shall occur as agreed between the parties but failing agreement and except where changeover occurs at school, the Husband shall collect the child from the Wife's residence at the conclusion of the Wife's time with the child and the Wife shall collect the child from the Husband's residence at the conclusion of the Husband's time with the child.

   6.That neither party shall denigrate the other in the presence or hearing of the child nor permit the child to remain in the presence or hearing of any persons who engage in such conduct.

   7.That each party shall ensure that the child is permitted to telephone the other parent at reasonable times as requested by the child or by the other parent and shall ensure that the child may speak to the other party in privacy and without distraction.

   8.That each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with the child's medical practitioners and to provide that party with any information he or she may request from time to time in relation to the child's health to the extent permitted by law.

   9.That each party shall keep the other advised of their current residential address, email address and telephone contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.

   10.That each party shall notify the other of any serious illnesses or injuries suffered by the child while in that parent's care as soon as reasonably practicable and shall provide reasonable particulars as to the name and contact details of the child's treating doctor and any hospital, medical facility or healthcare provider to which the child has been taken.

   11.That each party shall forthwith do all things, sign all documents and give all consents and authorities necessary to ensure both parents contact details are recorded on any school or extracurricular activity which the child attends as both a parent and an emergency contact person, and further so that each parent can obtain such information, reports, newsletters, photos and other materials from those organisations as they wish.

   PROPERTY

   12.That the Wife be and is hereby restrained, whether personally, as director or shareholder of any company or trustee of any trust, or by her agents or attorneys, from selling, transferring, assigning, disposing, encumbering, further encumbering or otherwise dealing with the property situate at and known as [1 B Street, Suburb C] ("[the Suburb C] property) and any other parcel of real estate in which the Wife has an interest.

   13.That the Wife pay or cause to be paid the following:

   13.1Any mortgages or encumbrances secured over the [Suburb C] property, as and when they fall due; and

   13.2All outgoings in respect of the [Suburb C] property, including electricity, gas, water and council rates as and when they fall due; and

   13.3Private Health Insurance premiums for the child at the current rate of cover, as and when they fall due.

   14.That within seven (7) days from the date of this Order the Wife pay to the Husband the sum of $147,500.00 into the Husband's bank account BSB … account number #10.

   15.That the amount paid to the Husband referred to in Order 14 above be categorised at the final hearing of these proceedings.

   16.That the Wife provide an Undertaking to the Court in the terms set out in Annexure ‘A’.

   17.That within fourteen (14) days from the date of these Orders, the Wife's Solicitors provide to the Husband's Solicitors a detailed request for disclosure.

   18.That within twenty eight (28) days from the date of these Orders, the Husband provide to the Wife's Solicitors the documents requested pursuant to Order 17 above.

   19.That the Wife serve on the Husband copies of all bank statements of the companies identified by the Wife identified in her Financial Statement, at the end of each month, commencing August 2018, such bank accounts being these listed in Annexure ‘B’

3. I made orders by consent, as interim orders, pursuant to paragraphs 1, 2.2 to 2.9 inclusive, 3.2 to 3.9 inclusive and 4 to 19 of Exhibit “A”, the minute of order titled “Wife’s Minute of Proposed Order”.

4. I further ordered that the parties attend upon a family consultant for the purpose of preparing a Child Responsive Program Memorandum on 19 September 2018.

5. The parties agreed that only paragraphs 2.1 and 3.1 were still at issue from those minutes:

   2.1 [that the child lives with the husband] During school terms as agreed between the parties but failing agreement, from the conclusion of school on Monday (or 3:00pm if the child is not in attendance at school), until the conclusion of school (or 3:00pm is the child is not in attendance at school) on Monday occurring 14 days later, with such time to commence on the first Monday following the making of these orders and continuing each alternate fortnight thereafter.

   3.1 [that the child lives with the wife] During school terms as agreed between the parties but failing agreement, from the conclusion of school on Monday (or 3:00pm if the child is not in attendance at school), until the conclusion of school (or 3:00pm is the child is not in attendance at school) on Monday occurring 14 days later, with such time to commence on the third Monday following the making of these orders and continuing each alternate fortnight thereafter.

6. The father further set out that he was pressing paragraphs 4, 8, and 9 of the orders set out in his case outline, which was marked as Exhibit F1.

   4. That the Husband shall be entitled to the sole use and occupation of the property at [1 B Street, Suburb C], to the exclusion of the Wife.

   8. That the child shall live with the father.

   9. That the child shall spend time with the Mother as follows during all NSW terms as agreed between the parties from time-to-time but failing agreement from 6.00pm Friday until 9.00am Tuesday on the first Friday following the date of these Orders, and each alternate weekend thereafter.

7. The parties state that they disagree as the date of separation, but agree that they remained living under the same roof until 26 May 2018.

8. The issues therefore are defined as:

   (a)Should the child live with each parent on a week about regime during school term time or should he live principally with the father and spend time with the mother each alternate week from 6.00 p.m. Friday to 9.00 a.m. Tuesday with the mother.

   (b)Should the father have exclusive occupation of the former matrimonial home at 1 B Street, Suburb C.

Evidence

Father

1. The father relied on his affidavit filed 4 July 2018.

2. The father says the parties commenced cohabitation in about 2008 and were married in 2009. The parties moved to Australia after they were married.

3. The father set out his involvement in the child’s day-to-day schedule prior to separation. He says that he was the primary carer for the child. He says that that mother often travels interstate and overseas for work.

4. The father set out the time the mother has spent time with the child in 2018.

5. The father states that separation occurred on about 16 March 2018. On that date, he says that the mother moved out of the former matrimonial home and did not return until 26 May 2018.

6. The father claims that between 16 March and 26 May 2018, the parties had several discussions about the former matrimonial home. The father says that the mother wished to live there. The father further states that the mother caused him to be fired from the company she is a director of (at which he was employed).

7. The father set out details of an incident which he said occurred on 26 May 2018. The father deposes that the on that date, the mother attended the house with two men, and said that she was moving back into the house. The father says he did not recognise either of the men.  The child had a friend over for a sleepover that night. He says that the mother and the two men sang karaoke in the house after 10.00 p.m. when the child and his friend were getting ready for bed. The mother slept in the master bedroom with one of the men who accompanied her. She also changed the codes on the locks to the study and the master bedroom.

8. The father says that on 28 May 2018, he and the child moved out of the former matrimonial home. They have lived in a 1 bedroom serviced apartment in Suburb D since that date. The father says his parents are paying his rent for that property as he does not have the money to pay for accommodation.

The Mother

1. The mother relied on her affidavit sworn 1 August 2018.

2. The mother states that the parties were married in 2009, but did not commence cohabitation until September of that year, when the father relocated to Australia. The mother says that the parties separated in about June 2017, but remained living under one roof until 26 May 2018.

3. The mother says in 2018, she was absent from the property from 2 April to 28 April.

4. The mother set out her involvement in the child’s day-to-day routine prior to separation. She says she was primarily responsible for his care.

5. In particular she said her parents had, since the commencement of 2017, assisted with collecting the child from school.

6. The mother denied that the events described by the father on 26 May 2018 occurred.

7. In relation to post 26 May 2018 care of the child, the mother complains that the father removed the child on 26 May 2018 from the former matrimonial home without her consent, and from that time, he has restricted the time she spends with the child. She says that she has not been informed of where the father is residing.

8. She set out the occasions on which she has spent time with the child. She says that the child has said to her that he would like to spend more time with her, but that the father will not permit it.

9. The mother proposes to reside in the former matrimonial home with the child and continue his pre-26 May 2018 routine.

10. The mother sets out evidence about the father restricting time for her with the child and further refusing to say where the child was living. The mother set out detail of conversations she has had with the father about her being able to spend time with the child and other information relevant to the child’s welfare. If the conversations are accurate then they would fit a description of controlling behaviour on the part of the father which does not appear to be child focused rather it appears to be based in the positioning for a parental dispute on residence and possibly contested property matters.

1. The mother in her evidence accuses the father of controlling behaviour towards her which led her to separate from him.

2. The mother works from home. She attends the office one day per week.  This is usually on Monday. She proposes to continue in the role of a full time mother to the child.

3. In relation to property matters, in particular the occupation of the former matrimonial home the mother says.

Occupation of the former matrimonial home

1. The mother in her Response to the father’s Initiating application seeks an order, inter alia, to retain the property at 1 B Street, Suburb C. The father in his initiating application seeks that property be transferred to him.

2. The mother said that at the commencement of the cohabitation the father owned the property at 2 B Street, Suburb C which was subject to a mortgage of $1.2 million. The property was re-mortgaged in 2009 for $2 million. The property was sold in 2010.

3. On 30 September 2015 the mother purchased the former matrimonial home from the father for $3.15 million. The property is subject to a mortgage of $2.1 Million to C Ltd. The wife also borrowed other funds to acquire the property. After the purchase the wife arranged renovations to the property.

4. Following the marriage in 2009 the parties lived with the wife’s parents until December 2015. At that time in 2015 the parties and the child moved to the former matrimonial home. The father removed himself and the child from the home on 26 May 2018.

submissions

1. The father relied on the submissions set out in his case outline marked as exhibit F1, and oral submissions made on the day.

2. The mother relied on her case outline document and addressed some oral submissions.

The Father’s submissions.

Parenting

1. The father relied upon his case outline document which set out submission in relation to the parenting dispute which was limited to the arrangements for the care of the child between the parents during term time.

2. The father properly concedes there is no risk identified by the parties in either parent having the child live with or spend time with either. The father raises a concern about who else will live in the mother’s accommodation.

3. The father says the mother is required to travel with her work and is away from the home overnight from time to time. In recent time the mother concedes she was away from the home between 2 and 28 April 2018.

4. The father says on 26 May 2018 the mother brought two males to the home.

5. The father says the mother now controls and works at extensive business interests which involves her travelling, including overseas.

6. The father addressed sub-sections of s 60CC(3). I will refer to those below.

7. The father relies upon the fact that the wife left him to care for the child for significant periods of time while she has been absent from the home. He submits that as the mother moves for equal time it is an acknowledgement that she has no complaint about the father’s capacity to care for the child.

The Mother’s submissions

1. The mother’s submission is confined to being based upon her evidence of care of the child since his birth. She says she has been the primary caregiver for the child since his birth and that situation should continue. She seeks an order for equal time as between herself and the father.

2. The mother opposes the father’s application for exclusive occupation of the former matrimonial home.

The Law

1. In relation to the process to be adopted by the court in considering interim parenting orders the Full Court has said in Goode & Goode (2006) FLC 93-286 the following:

   How should interim proceedings be conducted?

   [81] In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [82] In an interim case that would involve the following:

   (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 s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
   (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 s 60CC, 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 s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
   (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 s 60CC;
   (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 s 60CC; 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.

Section 60CC Considerations

Primary considerations

1. In addressing the considerations set out in sub-section 60CC(2), I take into consideration the terms of sub-section 60CC(2A), which requires me to give greater weight to considerations set out in paragraph (2)(b).

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

2. The mother proposes equal time for the child with each parent. The father seeks to restrict the mother’s time with the child. His reason for so doing appears to repose in his allegation that he has been the primary care giver of the child and the mother is required to travel for work and that will be disruptive for the child.

3. Neither party has any complaint about the parenting capacity of the other. The father may be seeking to raise a concern about the mother’s capacity by saying she may bring men into the house and do inappropriate things with them. The mother denies that is the case.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. There is no suggestion the child is at risk of physical or psychological harm in either house.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child’s views have not been independently assessed. The parties are to see a Family Consultant this month and thereafter there may be some helpful evidence.

   (b)      the nature of the relationship of the child with:

   (i)  each of the child’s parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

2. The evidence suggests the child has a good relationship with both parents, there being no allegation to the contrary.

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

3. The mother says she has been denied time with the child which she has requested. The father has limited the mother’s time with the child to less than 50 per cent of time.

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

4. Little is known about this topic at the moment. Each claim to have been the primary care giver for the child.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The child has been living in the house the mother purchased since 2015. The father seeks to occupy that house with the child to the exclusion of the mother. Until 26 May 2018, when the father removed the child from the joint care of the parents the child has been used to care in a circumstance where it appears both parties were to varying extents involved in his care together with members of the mother’s extended family.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

2. This is not a concern raised by either parent.

   (f)the capacity of:

   (i) each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs

3. No series allegation is made about either parents capacity.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

4. The child is a nine year old boy.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

5. Not applicable.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

6. This is an issue to the extent that the mother says the father is controlling and restricting her time with the child.

   (j)any family violence involving the child or a member of the child’s family

7. No evidence is proffered. The mother complained the father was controlling which prompted her separation from him.

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter

8. No order has been made.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

9. The orders sought are interim orders in circumstances where there is no objective assessment of either parties parenting capacity by a qualified expert. No testing of evidence is enabled by this hearing.

   (m)any other fact or circumstance that the court thinks is relevant

10. The parties are attending upon a Family Consultant of the court on 19 September 2018. The information which is thereafter provided in the report of the Family Consultant styled as a Child Responsive Program Memorandum, will assist the parties and if necessary the court, to make any adjustments of parenting orders until a final hearing can be scheduled.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been no allegation of family violence.

3. The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

4. In this case there is no reason for the presumption not to apply. Each parent seeks an order for equal shared parental responsibility.  The evidence thus far provided indicates that such an order on an interim basis is appropriate.

Section 65DAA

SECTION 65DAA(1)-(4)

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. The father argues that an order for equal time as sought by the mother is not appropriate as the mother has to travel away from Sydney for business from time to time. He also argues that she may have men at the house during the time the child is present.

3. The father argues that the mother should have “substantial and significant” time as defined by the Act.

SECTION 65DAA(5)

1. The section provides as follows:

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)  how far apart the parents live from each other; and

   (b)  the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)  the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)  the impact that an arrangement of that kind would have on the child; and

   (e)  such other matters as the court considers relevant.

   Note:          Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

2. Looking to those matters then, it seems clear that the parties will not be adversely affected by the distance between their residences. They live reasonably proximate to each other in Sydney. Both appear to have the capacity to manage an equal time arrangement for the care of their son.

3. The parties’ ability to communicate has not been the subject of any clear evidence, however, they lived in the same residence from March to May 2018 and, it seems, managed to work out how the child was to be cared for.

4. Nothing in the evidence so far would suggest the child would not cope with and live reasonably well in a shared care arrangement at this time. As he ages the arrangement may not suit his needs.

5. There is no other matter which needs to be considered here at this time.

Conclusion on the parenting issue

1. The parties have agreed there should be an order for equal shared parental responsibility in relation to the child who is now almost nine years of age. As can be seen above, the provisions of s 65DAA require the Court to consider making orders for equal time where it is proposing to make an order for equal shared parental responsibility.

2. In this case each of the parents claim to have been the primary caregiver for the child prior to the final physical separation in May 2018.

3. The father says it is not appropriate for the mother to have equal time during school term because she has to travel for work. I do not accept that is a legitimate reason to depart from the clear intent of the legislation. There are other provisions which can be built into the orders to provide for such exigencies. Unseparated parents are able to manage a circumstance where one parent needs to be absent from the home because of the necessity for work related travel. That aspect of everyday life can also be managed by separated parents who do not need to have a court dictate to them how to co-operatively parent their children.

4. In this case I conclude that given the parties have determined that an order for equal shared parental responsibility should be made, a conclusion I consider to be appropriate on the evidence so far given by each which stands untested, I can see no reason to not order the parties have equal time and the equal time be as sought by the mother. Coupled with such an order I would further order that should the mother be unable to care for the child at a time which she is required to do so pursuant to the court orders then she is to give the father as much notice of such period as she reasonably can and offer him the opportunity to take up the time with the child before she marriage makes any other arrangement for the child’s care. I will make the order in terms as sought by the mother. I will grant leave to relist following the release of the Child Responsive Program Memorandum report, should that be necessary.

5. The mother in her Minute of proposed order which was marked as exhibit “A” proposed the parents would have a 14 day program for the care of the child. In submission the mother’s counsel submitted a “week about” regime is what she sought.

6. I would not at this stage of the case, without evidence from a Family Consultant impose a regime of 14 day blocks for a child of the child’s age.  I consider that a week about regime should be the start point which can be modified by agreement or court order should that prove unsatisfactory for the child.

Exclusive occupation of the former matrimonial home for the father?

1. Section 114(1)(b) and (f) are the provisions which empower the Court to remove one party to a marriage from the matrimonial home in favour of the other party. The section provides:

   (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;

   …

   (f)an injunction relating to the use or occupancy of the matrimonial home.

2. In making a determination in relation to occupancy of the former matrimonial home, the Court is required to address two basic questions, those questions being:

   a)        Whether the property should be occupied by one party only; and

   b)Which of the parties should vacate the property and which party should have exclusive occupation of the property.

3. It is to be noted that the making of any such injunction does not in any way affect the property interests of the parties. Such an injunction is held to be temporary in nature and applicable only to the person in question. The Full Court (Evatt CJ, Demack & Fogarty JJ) said in Tansell and Tansell (1977) FLC 90-307, at 76,634:

   What, however, must be clearly kept in mind is that this power under sec. 114(1), both as to occupation and non-disposal of property, is a power which is both temporary and personal. It cannot be used to affect in a permanent way interests in property and it is a power which is directed to a spouse personally, prohibiting or restraining him or her from certain actions.

1. In Davis & Davis (1976) FLC 90–062, Evatt CJ, Pawley and Ellis JJ set out the following, at 75,309:

   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.

2. The preceding extract has continued to be used as a guideline in subsequent judgments in this area (see Fedele and Fedele (1986) FLC 91-744; Page and Page (1981) FLC 91-025; Tansell and Tansell (1977) FLC 90-307)

3. The list is not exhaustive, nor are all of the considerations essential.  The decision to turn a party to a marriage out of their own house is considered to be a serious matter (see, eg, O'Dea & O’Dea (1980) FLC 90–896, 75,648). Therefore, the Court must not decide the matter solely on the balance of convenience.

4. The criteria and matters to take into consideration have been restated in a number of cases dealing with this subject, all of which have provided a variation of the principles set out in Davis as they addressed the particular facts of the case. In Fedele and Fedele (1986) FLC 91-744, Fogarty, Murray and Nygh JJ summarised the authorities on the area as follows (at 75,431):

   That view is emphasised by the circumstance that immediately after reference to Rowe's case, the Full Court in the 1983 Davis case referred to the unreported judgment of Lindenmayer J in Price (12 July 1982) where, after referring to a number of the relevant authorities, Lindenmayer J said:

   “All that is necessary, it seems, is that the 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.”

   …

   There have been numerous reported cases on the application of sec. 114(1), including a number of decisions of the Full Court. Many of them lay down useful guidelines to assist trial judges in the exercise of the discretion under sec. 114(1), but they should be treated as guidelines only to assist in the proper exercise of the important discretion given under that section. They should not be seen as laying down a fixed list of criteria which must be established for the application to be successful. A judge is required to exercise his own discretion in the matter, but no doubt in the proper exercise of that discretion he will be guided by assistance given to him in authoritative judgments in this Court. …

5. The facts in this case do not describe any circumstance which makes the removal of the wife from the former matrimonial home reasonable or appropriate.

6. The father left the premises, taking the child with him. His excuse was that the mother had brought two men to the home who then sang and potentially disturbed the child. Further, the father alleges the mother took one of the gentlemen into her bedroom and shut the door.

7. There is no suggestion the mother was asked not to do that again nor was there any suggestion the mother had sought to prevent the father from having friends visit him in the property.

8. The orders made on 13 August provided for the mother to pay the father the sum of $147,500 within seven days.

9. There is no suggestion by the father that the accommodation he was providing for the child was unsatisfactory or that he could not so provide proper accommodation for the child once he received funds from the wife.

10. The orders I will make will provide for week about care for the child by each parent. Each will have the financial ability and necessary accommodation to be able to house the child during those times.

11. There has been no conduct by the mother which in my view would warrant the court removing her from her property.

12. I will make an order dismissing the father’s application for exclusive occupation of the former matrimonial home.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 18 September 2018.

Associate: 

Date:  18 September 2018