DEVINE & DEVINE
[2016] FamCA 782
•16 September 2016
FAMILY COURT OF AUSTRALIA
| DEVINE & DEVINE | [2016] FamCA 782 |
| FAMILY LAW – CHILDREN – Interim parenting – With whom the children live – With whom the children spend time –– Meaningful relationships – Change in circumstances – Concerns for children in context of the parent’s conflictual relationship where parents in and out of same home to spend time with children – Allegations by mother as to father’s conduct during relationship – Best interests of the children – Principles for interim parenting applications – Where children to reside with mother and spend substantial and significant time with father. FAMILY LAW – Injunctive relief – Sole use and occupation of matrimonial home – relevant considerations – where children to reside primarily with mother - mother granted sole use and occupation. |
| FAMILY LAW – PROPERTY – Interim distribution of property – where parties agree to sale of investment property – where no agreement as to interim distribution to mother as sought by the father – where mother will remain in matrimonial home – where mother does not seek interim distribution – consideration of applicable principles - where it is not appropriate to make interim orders as sought by the husband or wife. |
Davis & Davis (1976) FLC 90-062
| |||
| Plowman (1970) 16 FLR 447 Sieling v Sieling (1979) FLC 90-627 | |||
Strahan & Strahan [2009] FamCAFC 166
| APPLICANT: | Ms Devine |
| RESPONDENT: | Mr Devine |
| FILE NUMBER: | PAC | 2192 | of | 2016 |
| DATE DELIVERED: | 16 September 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Turner Freeman Lawyers |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Gorval Lynch |
Orders:
PENDING FURTHER ORDER:
Parenting
That the mother and father have equal shared parental responsibility for the children B born … 2009 and C born … 2011.
That the children live with the mother,
That the children spend time with the father as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) During NSW school terms each alternate week from after school/daycare on Thursday to before school/daycare on Tuesday with the father to collect the children from school or day care on those Thursdays and return the children to school or day care on those Tuesdays with the first of such periods to commence on the first Thursday after the resumption of term 4 2016 and each Term thereafter,
(b) For one half of the NSW mid-year school holidays commencing at 10 a.m. on the first Saturday of such holiday periods and concluding at 5 p.m. on the following Saturday of such period,
(c) During the 2016/2017 Christmas school holiday period, subject to any other order, for two periods of 7 consecutive nights as agreed between the mother and father in writing and in default of such agreement within one month from the commencement of such school holiday period for 2 periods of 7 consecutive nights the first commencing at 9 a.m. on Monday, 2 January 2017 and concluding at 5 p.m. on Monday, 9 January 2017 and the second commencing at 9 a.m. on Monday, 16 January 2017 and concluding at 5 p.m. on Monday, 23 January 2017,
(d) From 2 p.m. Christmas Day until 5 p.m. Boxing Day in 2016,
(e) On the Father’s Day weekend in the event that the children are not otherwise spending time with the father from after-school on Friday until before school Monday provided all ways that the father’s time with the children on the Mother’s Day weekend shall be suspended from after-school Friday until before school Monday.
That for the purposes of changeovers where such changeovers are not to be effected at school or day care changeovers shall be facilitated by the father or his nominee known to the children collecting the children from the mother or her nominee known to the children at the matrimonial home at the commencement of his time with the children and the father or his nominee known to the children returning the children to the mother or her nominee known to the children at the matrimonial home at the conclusion of his time with the children.
That the mother and father do all things necessary to facilitate telephone contact with the children by the other on each alternate day when the children are not in that other parent’s care with such contact to be as agreed between the mother and father or each such alternate day between 6.00pm and 6.30pm.
Occupation of the home
That the father shall vacate the former matrimonial home at D Street, Suburb E, Sydney by no later than 5 p.m. on Sunday 17 September 2016 and that thereafter the mother shall have sole use and occupation of that property pending further order provided always that the mother pay as they fall due and payable interest payments on the mortgage secured over the said home together with property outgoings including council rates, water rates and insurances.
That the father is restrained when vacating the former matrimonial home from removing any items of furniture, furnishings and personalty therein save for his clothing and personal effects without the written consent in writing of the mother with such writing to include SMS or email communication.
IT IS FUTHER ORDERED BY CONSENT:
That the mother and father do all things necessary so as to procure a prompt a sale of the real estate property at F Street, Suburb G, Queensland at the best price reasonably obtainable and that the net proceeds of sale after discharge of mortgage secured thereon, settlement adjustments, payment of legal fees on sale and a payment of agents commission and selling expenses be paid into the mortgage account secured over the former matrimonial home at D Street, Suburb E, NSW.
IT IS FURTHER ORDERED
Liberty to apply as to enforcement of these orders.
That otherwise all interim applications be dismissed.
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 Devine & Devine 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 |
FILE NUMBER: PAC 2192 of 2016
| Ms Devine |
Applicant
And
| Mr Devine |
Respondent
REASONS FOR JUDGMENT
The interim applications for determination as between the father and mother in this matter relates to:
a)the question of sole use and occupation of the matrimonial home at D Street, Suburb E, Sydney
b)parenting arrangements in relation to the 2 children of the marriage on an interim basis,
c)interim property relief sought by each party.
The questions of interim parenting and interim property requires some detailed consideration as a consequence of the parties evidence and documents tendered during argument and submissions in the interim hearing.
Reasons for judgement as to those issues will be delivered at a later date.
However for reasons that will become apparent it is appropriate to determine the issue of sole use and occupation of the matrimonial home promptly.
Context
The applicant mother and respondent father commenced cohabitation in 2005 and married in 2006.
The party separated in August 2015 but in circumstances where each of them have remained at various times in occupation of the matrimonial home. Those circumstances continue to date.
There are 2 children of the marriage B born in 2009 and C born in 2011. The child B is at a public school in close proximity to the matrimonial home and the child C attends day care 4 days per week at a local day care centre.
The mother commenced proceedings by initiating application filed on the 18th of May 2016. That application sought only orders as to property adjustment.
The father filed a response to the mothers initiating application on 11 July 2016 with that response seeking final orders as to parenting and property adjustment. Concurrently with filing his initiating application the father filed an application in a case seeking interim parenting orders and interim property orders.
At interim hearing the father sought parenting orders that in summary provided for:
a)the mother and father are to have equal shared parental responsibility for the children,
b)that the children live with the mother and father on an equal time basis with changeovers on Mondays and that school holidays be shared equally or as otherwise agreed,
c)that changeovers be effected where not at school or day care at the McDonald’s Family Restaurant at Suburb H,
d)that otherwise there be orders restraining the parties from engaging the children in issues in these proceedings and for mutual non-denigration.
Otherwise the father relevantly sought interim property orders that provided:
a)for the sale of the parties investment property at Suburb G, I Town, Queensland with the net proceeds of sale applied in reduction of the mortgage secured over the matrimonial home and
b)that thereafter there be a refinance of the mortgage secured over the matrimonial home to provide for a payment to the mother of $50,000 with the characterisation of that payment reserved to final trial and
c)that in default of the mother complying with the order for sale of the Suburb G property there be a sale of the parties investment property at Suburb J, Brisbane Queensland with the mother to receive from the proceeds of sale $50,000 with the characterisation of that payment reserved to final trial and the balance to be placed in a controlled monies account pending final determination.
The mother filed a response to the father’s application in a case on 23 August 2016 seeking interim parenting and interim property orders.
At interim hearing the mother sought parenting orders that provided for:
a)the children to live with the mother,
b)that the children spend time with the father each alternate week from the conclusion of school on Thursday to the following Saturday at 10 a.m. and in the other week from the conclusion of school on Thursday to 4 p.m. on the following Sunday,
c)specific orders in relation to time at Christmas and on Mother’s Day,
d)and that changeovers be effected at the McDonald’s Family Restaurant at Suburb H.
The mother at the interim hearing pressed for interim orders :
a)pending further order for sole use and occupation of the matrimonial home at Suburb E,
b)that the father pay all insurance payments due and payable on the Suburb E home,
c)that within 14 days the father do all necessary things to complete and file his 2016 tax return and cause any refund of taxation to be paid to the mother,
d)that the parties Suburb J investment property be sold and the net proceeds be placed in a controlled monies account.
The evidence on the discrete issue for determination
The father relied upon his financial statement filed on 15 September 2016 and his affidavits filed on 11 July 2016 and 7 September 2016.
The mother relied upon her financial statement filed on the 18 May 2016 and her affidavit filed on 15 September 2016.
The Family Consultant Memorandum (Exh A)
The parties and the children were seen by a family consultant for the purposes of the preparation of a child responsive program memorandum on 23 August 2016.
The family consultant in considering future directions was of the view that the parties should attend a post separation parenting course to assist them to ensure the children are not exposed to parental conflict and the parental care giving is not compromised by an inability to discuss the children’s well-being and needs.
The family consultant noted that subsequent to separation in mid-2015 the children have continued to live in the family home with the parents sharing the care of the children and each parent residing elsewhere when the children are not in their care. Initially this arrangement saw the children cared for by the father each alternate Wednesday from after-school or day care until Sunday and each other Wednesday from after school or day care until Saturday. Otherwise they were cared for by the mother.
However, notes, the family consultant in May 2016 the mother unilaterally reduced the children’s time with the father such that it commenced not on Wednesday afternoon but Thursday afternoon.
The key issues noted the family consultant were:
a)whether or not it is in the children’s best interest to live in an equal time arrangement,
b)the impact on the children’s relationship with the father if they are to spend 4 nights per fortnight with him,
c)each parents willingness and ability to effectively co-parent the children,
d)each parent’s parenting capacity,
e)the impact of parental conflict on the children.
The father asserted to the family consultant that the mother’s proposals for his time with the children were unfair. The mother’s response was that such an arrangement was impractical given she was not working full time and was otherwise available to the children.
The mother asserted to the family consultant that the father during cohabitation had been less than a fully engaged parent by reason of his work commitments and that it was she who undertook the primary burden of parenting.
It can be inferred from the family consultant’s memorandum that both children seek a more fulsome relationship with the father than is currently provided in the arrangements imposed by the mother. The family consultant’s observation of the children’s engagement with each of the parents was that it was positive and demonstrated close attachment to each parent.
Importantly, the family consultant noted that “the parents did not greet or communicate with each other in any way”.
The mother alleged to the family consultant that the father was frequently during their relationship physically intimidating towards her, by standing over her and shouting at her and at times belittling her in front of the children. She described the father as “passive aggressive” and “having a temper”.
Both the mother and father indicated to the family consultant their own historical alcohol abuse and historic use of cannabis and cocaine. Neither parent indicated they had any current concerns in relation to the other in this regard.
The parental relationship discussed by the family consultant revealed the father’s perception that he and the mother were able to communicate in regards to the children: an assertion the family consultant notes to be supportive of his proposal for shared care. Yet the mother reported that she and the father were unable to effectively communicate and telephone calls regularly became heated and the father would hang up on her.
The family consultant noted that on changeovers between the two observation sessions neither parent demonstrated that they were prioritising the children’s needs above the feelings about the other parent and behaving in a courteous manner in the presence of the children.
A lack of communication between parents, opined the family consultant as well as explicit conflict provides children with poor modelling of communication and can have a negative impact on children’s well-being. Hence the family consultant’s recommendations that the parties attend a post separation parenting course.
The father
The father is presently employed with several employers during the 2016 financial year. His gross taxable income for the year ended 30th of June 2016 was $162,404 (Exh C) in addition to which he receives some rental income from the parties’ investment properties at Suburb G and Suburb J in Queensland.
When not staying in the matrimonial home for the purposes of his time with the children at present the father resides with his sister. He asserts that this arrangement cannot continue.
The father acknowledges that in future the children will have to go between the party’s respective residences but to date he says the current arrangement has kept the children happy and well. It has also reduced he says the financial strain he currently suffers from as he does not incur the cost of additional rent.
The father is conscious of the children’s wishes to spend more time with him and says that he has no intention of moving from the Suburb E area. The children’s wishes may well be as a consequence of the children spending in a fortnightly period two separate periods with him rather than one consolidated period that would better give them the feeling of residing with their father for a period.
The father’s work commitments are such that he is able to deliver the children to school or preschool in the mornings and collect them therefrom in the afternoons.
The father complains of his struggle to service outgoings in relation to the Suburb E property and the 2 investment properties owned by the parties. The parties self-managed superannuation fund also has an interest in an investment property together with about $180,000 in cash sitting in the fund.
The parties have otherwise agreed to sell the investment property at Suburb G and the completion of that sale will reduce ongoing periodic liabilities being paid by the father.
Currently the father has been paying mortgage payments and some outgoings in relation to the matrimonial home at Suburb E and the parties’ investment properties. The father asserts that the Suburb E property has a value of approximately $1.2 million and is subject to an outstanding mortgage encumbrance of about $410,000
The father is, it appears, paying voluntary contributions to the parties’ self-managed super fund of $647 per week purportedly to meet that funds ongoing periodic liabilities despite there being a circumstance where the fund has significant cash at hand by reason of the recent sale of a property interest.
He presently has a child-support assessment of $347 per week, assessed on an income of $162,404, which is offset against non-agency payments made by him including portion of the mortgage payments on the matrimonial home and other expenses paid directly on behalf of the children.
The mother
The mother asserts a weekly income of about $1100 with a tax of about $216.
At the time of the birth of the youngest child the mother took 6 months off work and in 2012 she returned to work 3 days a week. Since separation the mother has worked between 3 or 4 days a week depending on her financial needs. The mother presently works for days per week with one of those days being Wednesday she works at home. The child C is with the mother on Wednesdays.
The mother asserts that she has been the primary carer for the children.
She says that between July 2015 in November 2015 the father was unemployed and during this period she was required to work extra days as the parties struggled financially and redrew about $80,000 from their mortgage to continue to meet their living and other expenses.
Notwithstanding that the father was unemployed for the period the child B, says the mother continued to attend before and after-school care whilst the mother was working.
When the father found further employment in November 2015 the mother reduced her work hours to 3 days per week.
The mother is of the view that the father seeks to remain in the home to preserve his property entitlements. The mother further asserts that communication between herself and the father deteriorated from February 2016 when she spoke to the father as to the in an out of house movements being impractical for the children.
In March 2016 the father stopped his income being paid into the joint account as a consequence the mother was required to borrow $4000 from her mother to meet family expenses. The mother of necessity increased her working hours to 4 days a week. Since this time the mother asserts that the father has only paid the mortgage in relation to the Suburb E property and the youngest child’s day care expenses on a Monday, the eldest child’s before and after-school care for days when the child is with him.
The mother says that she has been paying council and water rates, health insurance and household expenses.
The mother obtained a child-support assessment on 13 April 2016 which is referred to above. The mother has received no payments as the husband’s liability has been offset against other payments by him, particularly the home mortgage.
The mother asserts that communication with the father has become increasingly challenging. As a result of the breakdown in their relationship and what the mother regards as the father’s bullying behaviour changeovers in relation to the children from the 15 May 2016 have been occurring in the McDonald’s Family Restaurant car park at Suburb H.
The mother’s present income is about $4000 per month after tax. She proposes that should she remain in the matrimonial home to the husband’s exclusion that she will she responsibility for the mortgage payments on the Suburb E property of about $425 per week. In this circumstance she will commence to actually receive child support from the father of about $347 per week.
The mother asserts that the current living arrangements of moving in and out of the home have been difficult. She stays in the guest room at a friend’s home 5 nights a fortnight and that is a significant imposition on her friend. She has no family in Sydney and her family are mostly on the Central Coast of New South Wales.
Concerningly the husband’s solicitors informed the mother’s solicitors a few days ago on 9 September 2016 by email (Exh K) that it was the husband’s proposal that he would return to reside in the home on a full-time basis. The father asserted that accommodation would be no longer available for him at his sister’s residence. No evidence has been adduced by him from his sister to support this contention that appears crucial to the husband’s assertion.
Interim Parenting
In Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
122. Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
…
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
THE LAW:
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
c)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
The mother and father in the context of the present interim application are in agreement that there should be an order for equal shared parental responsibility. Such an order will be made.
In the context of there being an order for equal shared parental responsibility the court is required to consider whether equal time or substantial and significant time with each parent is in the children’s best interests and reasonably practicable.
For reasons discussed below and equal time arrangement is not in the children’s best interests. Further for reasons discussed below it is appropriate that the children live to some extent primarily with one parent and spend substantial and significant time with the other. There are no issues as to practicability as both parents live or propose to live and work in close proximity to the home.
Best Interests of the Children:
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski & Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The subject children are now in circumstances whereby they have the artificial spectre of either their mother or father living in the matrimonial home and caring for them in the absence of the other. The father acknowledges in his evidence that ultimately there will need to be separate residences obtained by he and the mother.
There are concerns expressed by the family consultant as to the conflictual relationship between the parties and the adverse impact that such may have on the children. The mother makes various allegations as yet of course untested in evidence as to the father’s overbearing conduct. If such conduct is exhibited in the presence of the children it is inappropriate and adverse to the children’s interests. The parties by reason of their conflict are undertaking changeovers of the children are not at the children’s home where it would be considered appropriate but in the car park of a local McDonald’s restaurant.
There is no doubt that the children have a strong relationship with both parents. At the moment they spend fractured time each week with the father and express to the family consultant what can be inferred as a wish to spend more time with their father.
The mother has been the children’s primary caregiver and it is appropriate that the children’s perception of that relationship which is important and meaningful to them continue pending final determination. It is clear that the mother is more available to the children by reason of her work commitments and she is able to provide for the children whilst remaining in the matrimonial home.
The children’s time with the father in terms of what happens at present sees him spend time in one week for 2 nights and a short Saturday morning period and any other week for 3 nights concluding at present on Sunday morning.
It is to be considered that his time with the children would be more meaningful to them if those 2 periods were consolidated into one block of time so that the children had a perception of indeed spending a reasonable period of uninterrupted time with their father. This arrangement would appear to be more meaningful and valuable to the children than to disparity periods involving more changeovers between these conflictual parents.
These considerations are indicative of orders whereby the children spend time with the mother as their primary carer but substantial and significant time with the father.
Section 60CC(2)(b) – need to protect.
This consideration arises from the issue highlighted by the family consultant as to parental conflict. The children need to be shielded from parental conflict and the mere fact that the parents reside with them for differing periods in the matrimonial home to the exclusion of the other must in their minds be difficult to reconcile. The eldest child is clearly aware of the breakdown of the relationship. The youngest child particularly by reason of age simply it seems wishes to spend time with both parents in a meaningful way.
The necessity to avoid exposing the children to the party’s conduct, particularly that conduct alleged by the mother as being perpetrated on her by the father and the ongoing conflictual relationship is again indicative of the parenting arrangements being changed so as to provide a clear and distinct periods of time for the children with each parent and not in the same residence.
It is important that arrangements put in place reflect the concern expressed by the family consultant.
The Additional Considerations:
Section 60CC(3) sets out the 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;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the 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
to communicate with the child;
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;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)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;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
As Kent J. observed in Doherty (2016) FamCAFC (8 September 2016):
It is well settled that the nature and extent of the consideration of the mandatory statutory considerations depends upon the circumstances of the case, including the nature and breadth of the issues to be determined (see SCVG & KLD (2014) FLC 93-582 cited with approval in Poisat (2014) FLC 93-597 and see also Banks & Banks (2015) FLC 93-637).
In this matter the question of parental responsibility is resolved by agreement and it is common ground that the children need to spend substantial and significant time with each parent. Many of the additional considerations are of no assistance.
As observed above it is reasonable to infer from the family consultant’s memorandum that the children are closely attached to both parents and seek to have more time or indeed more quality time with their father that is happening in the fractured circumstances at present. To that extent their wishes as can be ascertained particularly as to the older child should be given some weight.
The nature of the children’s relationships with the mother and father has been discussed above and is the subject of comment by the family consultant. Both parents have been engaged in that capacity subject to their respective work obligations. There is no doubt that the father for most of the cohabitation has been engaged in full-time work and the mother particularly since the birth of the youngest child in part-time work so that she can devote more time to the care of the children. The mother makes complaint about the father’s lack of engagement and that will need to be a matter determined on contested evidence.
In the present context where the parties are separated neither makes any significant challenge to the parenting capacity of the other. The mother makes some complaint about the father’s availability to the children at times when they are in his care but his response is that he has flexible working arrangements and he is able to be available to them. Neither parent suggests that in a physical caring capacity the other has any inadequacy.
The extent to which both parents have been engaged in making decisions about the children is evident from the discussion above. They have both been appropriately engaged it appears in that context.
There is no issue as to the parents in the context of her obligation to maintain the children. It appears that the matrimonial property circumstances at present are under some strain but the realisation by sale of some properties will relieve the burden on the father of ongoing periodic payments to some extent. He will have the capacity to meet child support as assessed and the mother will otherwise provide support by way of accommodation and financial support for the children.
More relevantly is the question of change in the children’s present circumstances. As discussed above the current arrangements of move in and move out are inappropriate in circumstances where it is patently clear that the marital relationship has broken down. The eldest child is quite conscious of the breakdown of his parents’ relationship.
The change proposed by the mother is that she will retain sole use and occupation of the home and be the primary carer of the children in the sense of more nights per fortnight with her and that the father’s time with the children will be in accommodation separately occupied by him.
The children by inference express some disquiet at the present fractured time spent with the father and it appears that their needs for a more meaningful relationship with him can be addressed by there being one period spent with the father and one with the mother with changeovers to be effected at the matrimonial home.
The parties’ parental attitude to their responsibilities to the children must be subject to some adverse comment by reason of the artificial circumstances in the context of end of the final breakdown of the relationship that they have perpetrated. The family consultant makes comment that they have placed to some extent their own needs ahead of the more appropriate needs of the children. As such they have demonstrated little reflective capacity as to the circumstances of their own children and their needs.
There are some suggestions in the mother’s evidence as to domestic violence including aggression and coercive and controlling behaviour. Whilst the court is mindful that the assertions have been made, the ultimate determination of that issue will be made should this matter proceed to final hearing.
These are interim proceedings and will require a final determination if matters remain in dispute as to parenting between the parties.
There are no other relevant considerations.
Overall a consideration of the discussion of the best interest considerations above is clearly indicative of the mother remaining the primary caregiver for the children but with the children spending a meaningful substantial and significant period with the father.
It is appropriate that any arrangements be subject to any other agreement that may be reached between the parties in the best interests of their children.
Orders give to give effect to that conclusion will be made.
The matrimonial home
Section 114 of the Family Law Act 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:
(a) an injunction for the personal protection of a party to the marriage;
(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;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.
Under s 114 of the Family Law Act 1975 (Cth) the Court is required to make an order that “it considers proper”.
In Plowman (1970) 16 FLR 447 Carmichael J considered some of the relevant matters as to use and occupation orders.
In Sieling v Sieling (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations 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.
The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) quoted with approval a passage from P & P, an unreported decision of Lindenmayer J delivered 12 July 1982, as follows:
In my opinion, Page’s 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 applicant show that 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 it would not be reasonable to expect them to remain in the home together.
Thus relief should not depend merely on the balance of convenience or hardship. The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other. It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.
The Court is mindful of what was said by the Full Court in Marvel & Marvel (supra) as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
In circumstances where the parties remain in a conflictual relationship and where the mother makes complaint as to the fathers conduct as referred to above and where parenting considerations lead to the conclusion that the children should remain in the primary care of the mother and in the home in her care pending further order then those circumstances are indicative that the mother should retain the sole use and occupation of the home.
Financial considerations discussed above also support such a conclusion where it appears practicable as the mother will meet obligations in relation to the mortgage and certain property outgoings during the period of her occupation.
The father will be relieved of some financial obligation as a consequence of the agreement of the parties to sell one of the Queensland properties with a debt funds to be deposited to the home mortgage account thus reducing the mother’s obligation in terms of interest only payments to some extent. He will require rental accommodation and is able absent agreement to seek to sell the Suburb J property should he need to supplement his cash flow.
By reason of the above considerations it is proper that there be an order that the mother have sole use and occupation of the home.
Orders will be made accordingly.
Interim Property
The parties propose by agreement that the investment property at Suburb G be sold and that the net proceeds of sale be paid into the mortgage secured over the matrimonial home. An order to this effect will be made by consent.
Such will have the effect of reducing the balance outstanding on the home mortgage and the obligation on the mother to pay interest in that regard from her limited income whilst she remains in occupation.
The father otherwise seeks an order that subsequent to sale of the Suburb G property that the mortgage secured over the matrimonial home be the subject of arrangements that would facilitate a redraw of $50,000 with that sum being paid to the mother. That redraw would then see the interest payable by the mother on the home mortgage increase.
The mothers position is that she is agreeable to the sale of Suburb G and that the net proceeds of sale be paid into the mortgage account but that there be no redraw in circumstances where the mother would remain in the matrimonial home and at this stage not need access to capital for the purposes of rehousing herself and the children.
The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
In Strahan (supra), the Full Court said:
132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).
It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said (at 79929-79930):
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
In circumstances whereby the mother does not seek a payment of capital to her as proposed by the father it is inappropriate to make such an order. An order will be made simply for the sale of the Suburb G property and the disposition of debt funds into the matrimonial mortgage account.
Should the father’s financial circumstances require the sale of the Suburb J property he may apply. There is no present necessity to order that property to be sold.
Orders will thus be made as set out at the forefront of these reasons for judgement.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 September 2016.
Associate:
Date: 16 September 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Jurisdiction
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Costs
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