Dawbin and Dawbin

[2013] FCCA 1725

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWBIN & DAWBIN [2013] FCCA 1725

Catchwords:
FAMILY LAW – Parenting – interim application – spend daytime periods only with father – exclusive occupation of former matrimonial home – interim spouse maintenance.

Legislation:
Family Law Act 1975 (Cth), ss.4AB, 60CC, 65DA, 72, 75, 114

Cases cited:
Bassett v Bassett (1975) 1 All ER 513
Bevan & Bevan (1995) FLC 92-600
Goode & Goode [2006] FLC 93-286
In the Marriage of Davies (1976) 1 Fam LR 524
In the Marriage of Davis (1982) 8 FamLR 975
Petersen & Petersen [2003] FamCA 1177
Price (unreported 12 July 1982)

Applicant: MS DAWBIN

Respondent: MR DAWBIN

File Number: SYC 5657 of 2013

Judgment of: Judge Sexton

Hearing date: 16 October 2013

Date of Last Submission: 16 October 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Counsel for the Applicant: Ms Boyle

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: Mr Macpherson

Solicitors for the Respondent: Champion Legal

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Husband vacate the former matrimonial home at Property S, [S] NSW by 4.00 p.m. on Saturday 19 October 2013 and thereafter the Husband be restrained from entering the former matrimonial home without the prior consent of the Wife and the Wife have exclusive occupation of the home.

2. The Husband be permitted to remove his clothing and personal items from the home.

3. Each party be otherwise restrained from removing from the former matrimonial home any furniture, furnishings, chattels or other items without the prior written consent of the other party.

4. The Children, [Y] born [in] 1997 and [Z] born [in] 2001, live with the Wife, noting the parties' eldest child [X] attained 18 years of age on [date omitted] 2013.

5. [Y] spend time with the Husband in accordance with her wishes. 

6. [Z] spend time with the Husband as agreed between the parties, but in the absence of agreement: 

   (i)Each alternate Friday from after school until before school Monday, commencing Friday 25 October 2013; 

   (ii)On Wednesday in the alternate week from after school until before school the following day, commencing Wednesday 30 October 2013;

   (iii)For half the school holidays, precise times to be agreed between the parties, excluding the period referred to in Order (iv) herein;

   (iv)For half the period from 9.00 a.m. Christmas Eve until 6.00 p.m. Boxing Day as agreed, but in default of agreement from 9.00 a.m. Christmas Eve until 11.00 a.m. on Christmas Day;

   (v)On special days as agreed; and

   (vi)At other times by agreement between the parties.

7. When changeover is not at school, the Mother deliver [Z] to the Husband at the commencement of the time, and the Husband return [Z] to the Wife at the conclusion of the time.  

8. Each party be restrained from making negative comments about the other party or any member of the other party's family or household in the presence or hearing of either Child. 

9. Each party be restrained from showing any documents relating to these proceedings and from discussing these proceedings with either Child or in either Child's hearing.

10. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

11. By way of periodic spouse maintenance:

    (a)The Husband pay the Wife the sum of $920 per week, such payments to be deposited into an account nominated by the wife within 48 hours of Order, first payment by Friday 25 October 2013 and weekly thereafter.

    (b)By Monday 21 October 2013, the Wife provide the Husband with copies of any unpaid invoices for electricity, council rates, water, gas and/or land-line telephone relating to the [S] home, unpaid invoices for any mobile phone held in the Wife's name or in the Husband’s name and the Husband pay those accounts by the due date on the invoices or within 7 days if the due date has expired. 

12. The Husband be restrained from divesting, utilising or transferring the proceeds of any bank or building society account in his name or control, transferring selling or divesting of any assets and/or shares in his name or control, resigning as a director of any company in which he is a director, or in any way dealing, including charging or encumbering or increasing any liability secured against any assets in his name or control other than the normal course of business and to meet day to day living expenses, without the written consent of the Wife, or order of the Court. 

13. The Husband forthwith return to the former matrimonial home, all clothing, including shoes, jewellery and handbags belonging to the Wife in his possession or in his control.

14. The Wife have sole use of the motor vehicle registration number [omitted] and the Husband be restrained from removing the vehicle from the Wife. 

IT IS NOTED that publication of this judgment under the pseudonym Dawbin & Dawbin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5657 of 2013

MS DAWBIN

Applicant

And

MR DAWBIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These Reasons were given orally on 18 October 2013.

2. The proceedings concern interim parenting arrangements for the parties’ children, [Y], aged 16 years and [Z] aged 12 years, exclusive occupation of the former matrimonial home at Property S, [S], interim spouse maintenance and a number of restraints. The interim issues which required urgent determination were (i) which party should have exclusive occupation of the former matrimonial home, (ii) with whom the Children should live, and (iii) interim spouse maintenance for the Wife. The parties resolved the issues concerning the valuation and sale of two motor vehicles and concerning certain restraints.  A number of orders were made by consent at the end of the interim hearing on 16 October 2013, and the balance of each party’s application, both interim and final, were adjourned to 31 January 2014. 

3. After a 20 year marriage, the parties separated a month ago, on 8 September 2013. They have remained living in the former matrimonial home at [S] with their three Children, although the Husband has taken [Z] away overnight for days at a time and the Wife has also spent nights away with family members. 

4. The parties’ eldest child [X], who was 18 years of age on [date omitted] 2013, is in the middle of her Higher School Certificate (‘HSC’) examinations, and on each party's evidence, is deeply affected by the high conflict in the household.  It is actually hard to imagine a more difficult environment in which to study and achieve in the Higher School Certificate. The timing of all this really could not be worse. 

5. The Wife deposes to a stressful conflictual and destructive environment in the [S] home because of heated exchanges and verbal abuse involving both the Children and the parties.  The Wife says she has spent some nights away from the home with her sister to ease the tension, and says over the past week, the Husband has left the home at 6.30a.m and not returned until the end of the day. The Wife alleges that the Husband was verbally abusive and controlling during the marriage, repeatedly denigrating and demeaning her, swearing and fighting with the Children and controlling her access to money.

6. In recent weeks, the Wife says the Husband has been demeaning her frequently in front of the Children and involving the Children in their adult relationship issues.  In her view, the Husband is endeavouring to undermine the Children's relationships with her and to keep [Z] away from her altogether. She deposes in detail to the content of the negative and abusive exchanges between the parties, which if accepted, would constitute family violence as defined in the Act. On the Wife’s case, the Husband has been the instigator and does not respond to her repeated efforts to remain calm in the presence of the Children and not involve them in the adult issues.  The Wife believes the Children are fearful of the Husband, and therefore unable to disagree with him. 

7. On the Husband’s case, none of this has happened. He says that the Wife argues with the Children and screams at them frequently and he is the peace maker who endeavours to mediate their disputes. He claims that the Wife called police recently when he had simply taken her car to be serviced.  He says that the Wife’s claim to police that he had taken her car against her will, was fabricated.  He says the Wife’s relationship with the older two Children has deteriorated over recent years. He says she is hardly at home and spends her time at the gym, shopping and socialising with her friends.  He denies ever having raised his voice with the Children.

8. The Wife says the situation in the home is intolerable and placing enormous stress on the Children.  The Husband deposes to the Wife’s repeated arguments with the Children and the stress this causes them. Neither party proposes that the parties remain living under the one roof.  

9. The Wife seeks orders as set out in her Initiating Application filed 26 September 2013. These include, inter alia, that she be entitled to exclusive occupation of the property at Property S, [S], and that the parties’ children, [Y] born [in] 1997 and [Z] born [in] 2001, live with her (it was noted that [X] would be 18 years of age [omitted]). The Wife also seeks an order for equal shared parental responsibility, and for the Children to spend time with the Husband for 3 nights on alternate weekends and one night in the other week. The Wife seeks restraining orders to prohibit either party from denigrating the other party or showing the Children any documents relating to these proceedings. She also seeks an order for interim spouse maintenance in the sum of $1100 a week, an order for the Husband to return the modem, her shoes, handbags and jewellery (at hearing, counsel for the Wife advised that the modem had been returned).   

10. The Husband seeks orders as set out in his Case Outline which include that the Children live with him and spend time with the Wife in accordance with their wishes, that he have exclusive occupation of the [S] home (pending its sale), that the home at [S] be listed for sale and the net proceeds divided as to 65% to him, and the balance to the Wife.[1]

    [1] Husband’s Case Outline dated 16 October 2013

11. However, the Husband’s counsel submits that the Wife’s application is premature and precipitous and that the Court should order a Family Report or at least a Child Inclusive Conference before making any orders. Given the evidence before me as to what is occurring in the household in which [X] is trying to do the HSC exams, I do not accept this submission. If these were not the circumstances, the Court’s approach might have been different. 

12. There are no current orders between the parties except those made by consent after the hearing on 16 October 2013, concerning valuations and the sale of motor vehicles.

Legal principles in relation to interim parenting

1. The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway. Section 60CA provides that I must regard the best interests of the Children as the paramount consideration. To determine best interests I must consider the two primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3) as far as they are relevant. I must give greater weight to the second of the two primary considerations, i.e. the need to protect the children from harm from being subjected to, or exposed to, abuse, neglect or family violence.

THE PRIMARY CONSIDERATIONS 

The benefit to the Children of having a meaningful relationship with both the Children’s parents

1. The Children have lived with their parents all their lives. The Wife says she has not been in the paid work force since she was pregnant with [X] over 18 years ago, and has always been the homemaker and primary carer of the three Children.  The Husband is a [occupation omitted] and has been the sole breadwinner during the marriage.  The Husband says that the Wife abrogated her parental responsibilities, particularly when the Children were older, by spending her time shopping and socialising with her friends. He says that he has been the primary carer of the Children, particularly in recent years.   

2. The Wife deposes to the Husband actively trying to drive a wedge between the Children and her, by denigrating her in front of them, and in front of others, showing them letters and documents prepared for these proceedings and by putting pressure on them to choose him as the parent with whom they wish to live. The Wife is concerned that if the current situation continues, the Children's loving relationships with her may be undermined.  In support of her contention, the Wife's counsel submits that it is noteworthy that the Husband seeks orders for the Children to live with him, without proposing any specific time between the Children and the Wife. 

3. On the evidence I have read, as I note later in these Reasons, I do find some support for the Wife’s concerns about the Husband’s conduct and some basis for her concern about the impact of the Husband’s conduct on the Children’s attitude towards her.   

The need to protect the Children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Family violence is a live issue in this case.  

2. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

3. Section 4AB(2) provides a non-exhaustive list of examples of behaviour that may constitute family violence, which include:

   (d)    repeated derogatory taunts; or  ...

   (h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support.

4. Section 4AB(3) says that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

5. The Wife alleges that she has been the victim of family violence at the Husband's hands. The Wife deposes to countless occasions of the Husband calling her "a fucking idiot" in extremely abusive tones; calling [X] "fucking lazy"; blaming the Wife for his anger – "It's your fault I'm always angry" and "get a job you're getting nothing from me"[2]  Following are examples of the Wife’s allegations against the Husband:    

   (1)We purchased another house at [R]… in 1996.…There was one incident when I asked [Mr Dawbin] [Husband]:  ‘Can we purchase a booster seat for the car for [X] as the Early Childhood Centre has recommended it.”  He said: ‘Forget the fucking booster seat, we don’t need it, she’ll be fine on the seat.’ I said: ‘It’s illegal, why don’t you do the right thing?’ He said: ‘Get in the car and stop hassling me, you fucking idiot. Trust me, you don’t need one. Don’t ask again.’  I was in tears.[3]

   (2) On the morning of 30 September 2013 I went for a walk in [M] before breakfast. When I arrived home I had shower [sic] and while I was getting dressed, [Mr Dawbin] [the Husband] stormed into the room and hit me with the bedroom door.  He said ‘Get the fuck out of my room; it’s my room, my house.’ I replied: ‘At least try to be an adult in front of your kids, they can hear you.’  He then said in front of [X]:  ‘I bumped into one of mums [sic] ex-boyfriends. I might bring him over here.’  He then turned to me and said: ‘You’re a fucking mole.’ I replied: ‘How dare you! And what has he got to do with us after 25 years?’  [Mr Dawbin] continued screaming at me, calling me a ‘fucking mole’ and I said: ‘Stop right now! You cannot speak like this to me, especially in front of [X], it’s so wrong.’ To get away I went for a drive and parked the car down the street. [Mr Dawbin] drove past me in his car and then reversed up to my car and kept yelling out the window:  ‘Fucking mole’ and giving me dirty looks. His car was blocking my car so I could not drive away. I was concerned for my safety.[4]

   (3)On the evening of 2 October 2013 I said to [Mr Dawbin]: ‘Can you please bring [Z] back tonight? I haven’t seen him all holidays and we are meant to be having dinner at my mum’s place tomorrow night...[Mr Dawbin] replied: ‘I’ll bring him home when I’m fucking ready. He doesn’t want you, none of the kids do! Go get a fucking life you fucking bitch’...[5]

   (4)On 5 October 2013…I sat outside and [Mr Dawbin] came outside and said ‘We need to talk’ in a very angry manner.  I replied: ‘I won’t talk in front of the children.’  [Mr Dawbin] then said: ‘You’ll be in a little unit in [omitted] you fucking bitch.  You wait and see! Move out of the house! Leave!’ I said ‘Don’t talk to me.’ I drove down the street to get away from [Mr Dawbin] and while I was sitting in the car [Mr Dawbin] pulled up beside me in his car and said ‘Open your fucking window you fucking idiot!’ …[6] 

   [2] Wife’s affidavit sworn 25 September 2013, paragraph 16

   [3] Wife’s affidavit sworn 25 September 2013, paragraph 36

   [4] Wife’s affidavit sworn 9 October 2013, paragraph 3 (d)

   [5] Wife’s affidavit sworn 9 October 2013, paragraph 3 (g)

   [6] Wife’s affidavit sworn 9 October 2013, paragraph 3(n)

6. The Wife alleges the Husband is aggressive, insensitive, abusive, and demeaning, and seriously lacking insight into the needs of the Children. The Wife's affidavit contains pages and pages of serious assertions supported by detailed evidence about the period leading up to the separation. The detail is compelling and paints a distressing picture of a Wife and Children frequently exposed to family violence, to a Husband unable to control his anger.

7. On 25 September 2013, the Wife says the Husband said in front of [X]: "Oh yes, we are separating. I am organising right now to have you thrown out of the house without the kids.  You will never see them again!"[7]   The Wife says she has needed the assistance of police to collect personal items when she has stayed away from the home on occasions.  She claims the Husband has taken her handbags, jewellery and shoes. She has no money and no access to money, no bank accounts, no access to an account in joint names and no credit cards with the exception of a David Jones card with limited credit remaining.  

   [7] Wife’s affidavit sworn 25 September 2013, paragraph 16.23

8. The Wife says if the Husband gave her a credit card to use during their relationship, she would have to return it to him after buying what she needed to buy.[8] She would have to explain and justify her expenditure on her return. She would be given cash at times to pay the bills and have to return the change.[9]  The Wife deposes to knowing very little about the family’s financial arrangements. 

   [8] Wife’s affidavit sworn 25 September 2013, paragraph 17

   [9] Wife’s affidavit sworn 25 September 2013, paragraph 17

9. There is no challenge to the Wife’s evidence about these financial arrangements by the Husband (although the Husband says the Wife spends too much on clothing and handbags) and the Husband admits that all his mail, including mail relating to bank accounts and financial issues, goes to the home of the Husband’s mother. The Husband says:  “Throughout the relationship [Ms Dawbin] had access to my credit card and debit card and knew my password which was the same for both accounts.  [Ms Dawbin] would often hold my card for days at a time.”[10] This indicates that the Wife did not even have her own credit card on the Husband’s account.

   [10] Husband’s affidavit sworn 15 October 2013, paragraph 38

1. If accepted, these allegations of financial control by a spouse of the other spouse constitute family violence in accordance with the definition I have referred to. The Wife also says that the Husband made all the decisions in the relationship and if she didn't agree with something, it would end in a fight and the Husband would get his own way.  This included the Husband buying and selling properties they were living in on 8 or so occasions during the marriage, against the wishes of the Wife.  For example, the Wife says:

   In 1998, we had approximately a $100,000 secured by a mortgage on the property at [R]. [Mr Dawbin] said: ‘We can’t afford to pay off the mortgage, we need to sell the property.’ Again, while I did not seek to sell the property, the property was sold in 1998 for $852,500.  I understand we received proceeds of approximately $752,500 from the sale.  I was away when the property was sold, visiting my sister in Singapore. When I returned home with the children, [Mr Dawbin] took me to see Property M, [M]. I said: ‘I would rather not move away from [L] and the children are settled in pre-school here.’  He pulled the car over on the side of the road after collecting us from the airport and screamed at me: ‘If you don’t fucking buy this house in Property M, you can get a fucking divorce right now.” I signed the contract and we bought the property in 1998 for $550,000.[11]

   [11] Wife’s affidavit sworn 25 September 2013, paragraph 39

2. Some of the agreed facts in this case about the manner in which the Husband managed and controlled all accounts and had the statements kept away from the home and from the Wife give the Wife's claims a ring of truth.   

3. I find it noteworthy that the Husband is highly blaming of the Wife throughout his affidavit material. For example, he claims she “insisted” they take an overseas family holiday each year, and then would spend no time with the Children, but all her time shopping. She says he demanded a Mercedes convertible 4 seater, the same colour and type as her friend, and demanded a 3 carat diamond ring for their anniversary.[12]  The Husband says the Wife was responsible for the sale of each home, because she didn’t like something about the present home and insisted they sell. He uses terms about the Wife in his affidavit including: “harassed”, “urged”, “demanded”. Yet the Husband was a [occupation omitted] and claims to have made a living from the profits made from buying properties, renovating them and selling them.  In his second affidavit he says this:

   As part of purchasing and selling properties, I invest substantial time sourcing the right property in the right area which includes attending at local councils and making enquiries regarding the development of the properties to scope the financial viability of the project.

   During the relationship, I have bought and sold approximately 8 properties.  I would generally purchase a property, renovate and sell the property for a profit. The equity from these properties was used to fund the purchase of our next property in addition to providing myself and my family with an income.[13]

   [12] Husband’s affidavits sworn 9 October 2013 and 15 October 2013

   [13] Husband’s affidavit sworn 15 October 2013, paragraphs 7 & 8

4. Here, contradicting his own evidence, he uses the word “I” as though he was the initiator of these projects.[14]  The Husband’s claims about the Wife’s behaviour in this regard, therefore are difficult to reconcile with his assertions about how he earned income for the family.  The Husband says he was the sole breadwinner and had sole access to the family’s financial information by having it sent to his mother’s address.  But he asks the Court to accept he had little or no opportunity for input on any of these decisions referred to, which involved very substantial expenditure, though, on his own case, he had the financial control.  It seems to me, that while complaining the Wife was very extravagant, the Husband is asking the Court to accept that he just went along with these very expensive purchases, as though he were a passive bystander.   While it is always difficult at this interim stage to make specific findings, I find the Husband’s evidence on these issues difficult to accept. 

   [14] Husband’s affidavit sworn 15 October 2013, paragraphs 7 & 8

5. Given the length of this marriage, I also find it noteworthy that the Husband frequently refers to “I” when talking about savings, income, and payment of accounts and expenses, for example, “I have also provided money to [Ms Dawbin]...”[15] She used “my credit card and the cash kept at home”.[16] This language leads me to conclude that the Husband had a sense of ownership of the family funds.   

   [15] Husband’s affidavit sworn 9 October 2013, paragraph 103

   [16] Husband’s affidavit sworn 9 October 2013, paragraph 110

6. On the basis of all the evidence I have referred to under this factor, I find it likely that the Husband is directly involved in the conflict in the home, rather than playing the role of peace maker. I find it likely that the Children are being exposed to an unacceptable level of hostility and tension in the home.  

RELEVANT ADDITIONAL CONSIDERATIONS

1. I find it unnecessary to address here all the section 60CC factors. I refer to the factors I find relevant to determination of the interim issue.

2. The Wife describes the parties' respective roles in the marriage and a loving warm relationship between herself and the Children:

   During the relationship I was primarily responsible for taking the children to school, organising sporting events and medical issues involving the children.

   [Mr Dawbin] has been self-employed during the relationship and has spent long periods working on our properties or at home, nevertheless I have been the primary caretaker for the children and the primary homemaker.[17]

   [17] Wife’s affidavit sworn 25 September 2013, paragraphs 11 & 12

3. She describes the Husband's relationship with the Children:

   [Mr Dawbin] would swear at the children when asking them to do homework or get ready for bed.  He would say: ‘Hurry the fuck up’ and the like.  My daughter, [X] said to me as recently as September 2013: ‘Dad hurts [Z] all the time and you don’t see it.’  When I said: ‘When?’ as I did not know he was doing it, she said: ‘Because he does it when you walk away and threatens [Z] not to tell you.’   I have observed [Mr Dawbin] have fights with the children almost on a daily basis. I have been too scared to leave previously as I was concerned about what he would do to control me and him manipulating and controlling the children.  [Mr Dawbin] has involved the children and attempted to isolate me and cut me off financially… [18]

   [18] Wife’s affidavit sworn 25 September 2013, paragraphs 14

4. While the Wife says she was the Children’s primary carer, the Husband contends that he was the primary carer because the Wife was always out socialising and shopping.  The Husband says the Children want to live with him and have difficult and strained relationships with the Wife. The Wife annexes two identical letters purportedly written by [X] and [Y], to her affidavit sworn 25 September 2013. The Wife says that the Children gave her the letters.  The Wife says that [Y] told her that she was made to sign the letter. Without an independent assessment, I do not accept these letters as evidence of the girls’ expressed wishes. In fact, I find these letters go some way to corroborate the concerns the Wife’s raises about the Husband involving the Children in the parties' dispute and in these proceedings. 

The nature of the relationships between the Children and each parent and the Children and other persons

1. At this stage, there is no independent evidence before the court as to the nature of the Children's relationships with each party and I have nothing to add here.  

The capacity of each parent to provide for the needs of the Children including emotional and intellectual needs; the attitude to the Children and to the responsibilities of parenthood demonstrated by each parent

1. There is no evidence to suggest that each party does not have the capacity to meet the Children’s day to day physical and intellectual needs.  However, as already addressed, a significant question arises as to each party’s capacity to meet the Children’s emotional needs while preoccupied with their animosity towards each other.  

The likely effect of any change in the Children’s circumstances, including the likely effect on the Children of any separation from either parent or any other child or other person with whom the child has been living

1. It would be difficult in the next few weeks for the Children to move from the family home, particularly [X], in the middle of her HSC exams, but the other children too, trying to complete the school year.  This is a position agreed by both parties.  

2. The Children will have the freedom to spend time with each party, and given their ages, it is likely the two older Children will make their own decisions about how much time they spend with each party. 

PARENTAL RESPONSIBILITY

1. Despite their applications, neither party invites the Court to make an order in relation to parental responsibility at this early stage of the proceedings.  As the Husband's counsel submits, the parties have very recently separated, and a lot has happened.  Perhaps it is no surprise that each party is finding it difficult to put the needs of the Children ahead of their own.  The obvious example is their inability to put their daughter [X]'s interests ahead of their own in the middle of her HSC exams. I find it unlikely at present, that either party has the capacity or willingness to engage in a consultative process which is what they would be required to do if an order for equal shared parental responsibility was made. 

2. I will therefore not make any order for parental responsibility at this time. 

Conclusion on interim parenting

1. The Children need a stable predictable home base while they adjust to their parents' separation and the significant changes this will bring to their lives.  I believe that changes to their usual routine should be minimised. The Wife has been the homemaker and the stay at home parent. The Husband, while it seems he has been actively involved in the Children’s day to day lives, has also had the responsibility of earning the income to support his family. Given his view of the parties’ financial predicament, the Husband needs to earn an income because he is the only earner at present. 

2. The Children will therefore live with the Wife. On the orders proposed by the Wife’s counsel in final submissions, [Y] will decide for herself how much time she spends with the Husband and [Z] will have significant and substantial time with him. I have decided to adopt the Wife’s proposal for time between [Z] and the Husband and there will be room in the orders for flexibility, so if [Z] wants more or less time with the Husband, that will be possible under the terms of the Orders.

Legal principles in relation to exclusive occupation   

1. The principles in relation to exclusive occupation are clearly set out by her Honour Justice Boland in the 2003 decision of Petersen and Petersen.[19] Section 114(1)(b) of the Family Law Act 1975 provides that the Court may grant an injunction restraining a party to the marriage from entering or remaining in the matrimonial home. The Full Court in Davies set out the criteria for a court exercising its discretion under section 114:

   …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 children, hardship to either party or the children and, where relevant, the conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from that home of the first party.

   [19] [2003] FamCA 1177

2. Her Honour Justice Boland then adopts as the current law on this issue the judgment of Justice Lindenmayer in the decision of Price[21] approved in the Full Court decision of Davis where their Honours say:

   In my opinion… [this] case demonstrates a softening of the court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an application show it is impossible, or intolerable, for him or her to continue in co-occupation of the house with the other party or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary it seems is that the court should regard the situation between the parties as being such that would not be reasonable or sensible or practical to expect them to continue to remain in the home together.

   [21] Unreported 12 July 1982

3. The court may also grant an injunction for the welfare of a child under section 68B(1)(c)(i) of the Act to restrain one party from remaining in the former matrimonial home. This is a wide ranging injunctive power limited only by the requirement that the order is “appropriate for the welfare of the child”. Justice Cumming Bruce in Bassett v Bassett said:

   Where there are children whom the mother is looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents as the long term effect on a child is liable to be of the utmost gravity...[23]

   [23] (1975) 1 All ER 513 at 520

4. In the present case, given the current high level of acrimony between the parties, it would not be reasonable or practical, nor in the interests of the Children, to expect the parties to continue to remain in the former matrimonial home at [S].  And neither party seeks such an order.  It may be that the exclusive occupation arrangement is of short duration, given the Husband's assertions about the parties' financial position and the need for the home to be sold.   The Wife's counsel has asked for a short period in which to examine the financial documents provided by the Husband to consider whether or not to consent to an order for the sale of the home, as sought by the Husband.  This request seems reasonable, particularly in light of this family’s current circumstances.  The Husband’s application for the sale of the home will therefore be adjourned until the end of January to give the Wife’s legal representatives that opportunity. 

5. I must weigh each party’s accommodation options and the hardship which will inevitably be caused to the party required to move. 

6. On the Husband side, he has parents in Sydney with whom he has stayed and with whom he has taken [Z] to stay recently.  According to the Wife, the Husband’s parents have the room to accommodate the Husband. The Husband says his parents' home is occupied by his sister and her family and there is no extra room, though does not explain how there was room for [Z] recently, nor when his sister’s family is likely to leave. On the Wife side, the Husband’s counsel submits the Wife can move to her sister's or her mother's homes. The Wife says neither can accommodate her.

7. I have decided that on an interim basis, the Children will live with the Wife and I am satisfied the Children should remain in the home and in their usual routine as far as possible. It follows that on an interim basis, the Wife will have exclusive occupation of the home.  The Husband is a [occupation omitted] with a capacity to earn income. According to the Wife, he spends much of his time away from the home now, and if he is working, he is likely to continue to spend much of his time away from the home. The Husband is a skilled [omitted].  If unable to stay with his mother, in my view it will be easier for him to find alternate accommodation than the Wife who has no employment skills and no access to funds, whether borrowed or otherwise.  Given the timing of [X]’s exams and the serious level of acrimony between the parties, I have decided to give a very short time for the change to occur.  The Husband will leave the home tomorrow afternoon.  I have made orders to prevent a dispute over the contents of the home.  

Interim spouse maintenance

1. Section 72 of the Family Law Act 1975 provides that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support himself or herself adequately whether:

   1.by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   2.by reason of age or physical or mental incapacity for appropriate gainful employment; or

   3.for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

2. Section 74 provides that the court may make such order for spouse maintenance as it considers proper. The Full Court in Bevan held that an award of maintenance should not be at a subsistence level and should pay proper regard to the factors set out in section 75(2).[24] The Full Court held that “reasonableness” is the guiding principle.

   [24] (1995) FLC 92-600

3. The parties are in good health. The Wife will have the majority care of [Z], [Y] and probably [X], who will need her home base to complete her examinations. Neither party has a responsibility to support any other person apart from herself/himself and the Children, and neither party is living with another person. Section 75(2)(b) requires the court to have regard to the income, property and financial resources of each party and each party’s physical and mental capacity for appropriate gainful employment.

4. As already noted, the Wife has not been in the paid workforce since before [X] was born. While the Husband says the Wife spends recklessly, he does not suggest that she can adequately support herself at this time, and I am satisfied in the present circumstances, when a child is doing the Higher School Certificate and the Children have had no opportunity to adjust to the separation, it is reasonable for the Wife to remain out of the workforce in the immediate future.   It would seem inevitable that the Wife will need to return to the workforce in time. 

The Wife’s financial position

1. The Wife deposes to having no income. She deposes to having no bank accounts in her own name or to which she now has access. She has a David Jones Amex credit card with a limit of $4000, currently with available credit of under $3000. The Husband says that at separation, the Wife took a sum of $4000 from cash he had deposited in the bedroom. This is denied by the Wife. She deposes to having no assets other than her share of the [S] home, a car with a value of an estimated $10,000 and household contents. The Husband does not challenge these figures, nor the Wife’s contentions about her lack of access to funds.

2. In her Financial Statement sworn on 25 September 2013, the Wife deposes to weekly expenses of $1267 (Part N) and $243 (Part G) totalling  $1510 a week for herself  (I note the Wife's figure for the total at Part N is different from mine).[25] In an exchange with the Wife's counsel during the hearing, counsel conceded there were figures in the Wife’s list of expenses which should be excluded for the purposes of this hearing, including the $100 a week for health insurance (the parties have never had health insurance), and $400 a week on clothing and shoes – that will become a figure of $50.   In addition, for the purposes of this somewhat artificial exercise, I vary the figure for holidays to $50 a week.  I allow $25 a week for fares/taxis given the Wife is not working and has a car, and $40, not $62 a week for house repairs.  I allow $25 a week for gifts rather than the $50 claimed by the Wife.  

   [25] Wife’s Financial Statement sworn 25 September 2013

3. On the basis of these figures, I find the Wife's reasonable expenses for herself total an estimated $785 for items in Part N and $143 at Part G, a total of $928 per week.  I have rounded that figure down to $920.

4. As already noted, I am not satisfied the wife can presently adequately support herself.

1. The Wife deposes to expenses for the Children of $817 a week. The Wife is presently receiving no child support to offset these expenses, and cannot meet any of them herself given she has no income. The Act provides that the Court is unable to take into account any Centrelink benefits to which the Wife might be entitled. The parties will need to resolve how the Children's expenses will be met, and if there is no agreement, consider the legal options available to them.   

Does the Husband have the capacity to pay the sum of $920 a week to the Wife?

The Husband’s financial position

1. The Husband has sworn two Financial Statements a week apart, one on 8 October 2013 (the first Financial Statement) and another on 15 October 2013 (the second Financial Statement).  He deposes to being a [occupation omitted] in both, trading as [omitted], as a sole trader. In the first Financial Statement, he deposes to an income of $1,942 a week (from interest on investments), and to an income of "NIL" from the same or any other source, in the second Financial Statement. I find it difficult to reconcile the Husband’s relatively modest credit card debt if, as he says, he has worked rarely since the parties sold their last property at [C] in mid-2013, met rental payments of over $7,000 a month in [omitted] between 2009 and August 2013, and met all family expenses (even with the Wife's apparent extravagance on clothes, shoes and handbags).  On 9 October 2013 the Husband’s credit card debt was under $3,000.  

2. The Husband’s taxation return for the 2013 financial year annexed to his second affidavit discloses a taxable income of $141,679 or $2,724 gross a week including a component of income from his [omitted] business.[26] I am therefore satisfied the Husband has the capacity to earn an income.

   [26] Husband’s affidavit sworn 15 October 2013

3. On the face of his second Financial Statement, it would appear that the Husband has no capacity to meet any order for interim spouse maintenance because he has no income. However, as submitted by the Wife counsel, the Husband's sworn material merits closer examination.  

4. In relation to the Husband's expenses, at Part G of both his Financial Statements,  he deposes to expenses of $135 a week for rates, $12 a week for ‘other rates’, $10 a week for registration of the Hilux ute, a minimum of $12 a week on his ANZ visa card account.  But there are also differences in the two Financial Statements:  in the first he deposes to an expense of an estimated $486 a week for tax, and in the second to paying no tax; in the first he has no other expenses for cars, in the second he pays $10 a week for his Mustang 1966 fastback, and $10 a week car insurance.  At Part N, the figures are the same in both Statements.  He deposes to expenses for himself of $288 a week, and to expenses of $968 a week for the children, a total of $1256 a week if all expenses claimed are allowed. He does not refer to any expenses he pays for the Wife.  The Husband does not say whether or not any of his claimed expenses are tax deductible.

5. In relation to assets and liabilities there are differences in his position on 9 October and on 15 October, which are not explained.  In his first Financial Statement, the Husband deposes to assets with a value of $765,652, being his 50% share of the home, $652 in bank accounts, $10,000 for the Hilux ute and $5,000 for home contents.[27]

   [27] Husband’s financial statement sworn 8 October 2013

6. In his second Financial Statement, the Husband deposes to a negative bank account balance (of $162), and this time he includes two additional motor vehicles in his list of assets: a Mustang Fastback 1966 with an unknown value, and a Ford Mustang Cobra Jet with an unknown value.  In relation to liabilities, in his first Financial Statement he has liabilities of $2,785 and in his second, he has liabilities of $103,573.  His credit card liability has increased to $8,000, he claims he has a tax debt of an estimated $90,000 and a debt for car repairs on the Ford Mustang of $5,573.[28] 

   [28] Husband’s financial statements sworn 8 October 2013 & 15 October 2013

7. When the matter was first before me on 9 October 2013, I made orders at the request of the Wife’s counsel providing for the Husband to file and serve an affidavit detailing all jobs undertaken on his own behalf or on behalf of his [omitted] company after 1 July 2010. I also made an order that he provide details of the Mustang and Cobra motor vehicles. The Wife’s counsel submitted that the Wife had obtained certain documents of which the Husband was aware, which required an explanation. The Husband’s second affidavit and second Financial Statement were therefore filed.  

8. The Husband has sworn two affidavits, one on 9 October 2013 and the other on 15 October 2013. There are material differences in the information deposed to in each of his affidavits. In particular, in the first affidavit, the Husband says this about the Ford Mustang and Race Car:

   1966 Ford Mustang (“the Mustang”)

   92.  In or about November/December 2011, I purchased a 1966 Ford Mustang.

   93.  The purchase price was $27,000 and was funded from our personal savings.

   94.  The car was in decent condition and I purchased the car as a hobby to ‘fix up’. Unfortunately, I underestimated the expense of repairing the Mustang. As the repairs for the Mustang exceeded what I could afford to pay, I made an arrangement with the mechanic I owed money to for the repair to trade the Mustang in lieu of payment for labour and parts.

   Race car (“the race car”)

   95.In or about 2010 I purchased a race car.

   96.The purchase price was $55,000 and was funded  from my 

   personal savings.

97.In or about 2011 the race car became too expensive to

maintain and I transferred ownership of the race car to my              brother, who assumed all the liabilities of the race car.  This still allowed me the opportunity to race it.[29]

[29] Husband’s affidavit sworn 9 October 2013, paragraphs 92 – 97

1. And as earlier noted, neither car was included in his list of assets in his first Financial Statement.

2. In the Husband’s second affidavit, sworn a week later, the Husband sets out the jobs he has had since July 2010.[30]   He refers to one job for a [name omitted] quoted at $145,000 which he says was paid in three instalments, the latest instalment being made in June 2013 in the sum of $40,000.[31]  This job was not referred to in his first affidavit nor was the fact that he does any [omitted] work beyond renovating his own home. He says that the Race car was purchased for approximately $106,000 and apparently cannot be registered and is now being sold by [name omitted] at Prestige Cars.   The Husband believes it is worth $55,000.[32] The Wife from a document she has seen, believes it is advertised for $119,000.[33] I make no finding as to its value. An order has since been made for the car to be valued.

   [30] Husband’s affidavit sworn 15 October 2013

   [31] Husband’s affidavit sworn 15 October 2013, paragraph 2

   [32] Husband’s affidavit sworn 15 October 2013, paragraphs  20 – 26

   [33] Wife’s affidavit sworn 9 October 2013, Annexure F

3. In relation to the Mustang, in the second affidavit, the Husband concedes that it should be included in his Financial Statement.

4. The Husband has spent over $130,000 on two cars in the last three years or so.  As the Wife's counsel submits, the Husband is maintaining at least one of them to have a debt of over $5000 to a mechanic. Yet the Husband asks the Court to accept that he does not work at all, or only very occasionally, except when renovating the house in which the parties are living.

5. In relation to bank accounts, in both Financial Statements the Husband discloses one ANZ account in his name, and one CBA account in his business name with low or debit balances. In a letter dated 15 October 2013 to the Wife’s solicitor, the Husband’s solicitors disclose two current ANZ accounts and one CBA account.[34]  Also in Exhibit 2, is a letter from ANZ Bank which states that the Husband holds four accounts with ANZ.[35] While I am not persuaded anything of consequence turns on these differences, I find it is another example of the Husband’s poor attention to detail in relation to disclosure of his financial position.

   [34] Exhibit 2 (Letter from Champion Legal to Pigdon Norgate dated 15 October 2013 & Letter from ANZ to the Federal Circuit Court dated 14 October 2013)

   [35] Exhibit 2

6. In circumstances where the Husband was represented at the time he has sworn both his Financial Statements, and sworn both his Affidavits, and he deposes to significant differences in his financial position in a matter of 7 days, and gives no explanation in his second affidavit for the change in his position, I am unable to accept on the face of these documents, that the Husband has fully and frankly disclosed his financial position.  I do not accept the Husband’s counsel’s submissions that these omissions are of no consequence. The Husband has a statutory obligation to fully disclose his financial position in a frank and open manner. To depose to two valuable cars being transferred to third parties, with specific detail about how and why these transfers came about, and then a week later to change the story completely, is evidence of failure to disclose, not of carelessness. I am not satisfied on the evidence before me, that I can make findings as to the Husband’s true financial position.  And I am satisfied that he does have the capacity to earn an income.  

7. In these circumstances, I am satisfied it is proper for an order to be made for interim spouse maintenance.  The Husband will pay the sum of $920 a week. In addition, he will pay the current and outstanding invoices for utilities at the [S] property.  Thereafter the Wife will be required to meet those expenses.  Given I am not confident I am aware of the Husband’s true financial position, I cannot say from what source the Husband will meet the maintenance order.  But given the Husband has the capacity to earn an income, it will be his responsibility to meet the order. 

Conclusion

1. The Wife seeks an order that the Husband return her shoes, handbags and jewellery to the [S] home. (She also sought the return of the modem but tells the Court it has now been returned).  The Wife sets out her version of what she says occurred on 9 September 2013.[36]  In the midst of a heated verbal exchange between the parties, the Husband said to the Wife:  “I’ve taken all your jewellery, shoes and handbags because they are materialistic and you don’t need them anymore. You need to have nothing now.”[37]  The Children said: “That’s right Mum, you are materialistic, Dad’s right.”[38]  On 26 September 2013, the Wife deposes to [Y] saying to her “I love you Mum, and Dad did the wrong thing taking all your stuff away…”he rubbished you Mum in front of all of us at Nonna’s place, it was horrible.”[39] The Wife says that the Husband has not returned her shoes, handbags or jewellery. 

   [36] Wife’s affidavit sworn 25 September 2013, paragraph 16.4

   [37] Wife’s affidavit sworn 25 September 2013, paragraph 16.4

   [38] Wife’s affidavit sworn 25 September 2013, paragraph 16.4

   [39] Wife’s affidavit sworn 9 October 2013, paragraph 3(a)

2. The Husband does not refer to these allegations in his affidavit. If the Husband does hold any of the Wife' personal items, there would be no justification for him retaining them.  I have made an order that neither party remove any items from the home without the prior consent of the other, so that if any of the Wife's personal items have a value, those values can be included in the balance sheet. Therefore, there could be no financial prejudice to the Husband if the items are returned.  I have made an order for the Husband to return the items if he has any of them in his possession or control.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate:  

Date:  18 October 2013

[20] (1976) 1 Fam LR 524

[22] (1982) 8 FamLR 975 at 977