Fearne and Fearne
[2011] FMCAfam 1432
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FEARNE & FEARNE | [2011] FMCAfam 1432 |
| FAMILY LAW – Interim application for sole occupancy of former family home – matters to be considered. |
| Family Law Act 1975, s.114(1) |
| O’Dea v O’Dea (1980) FLC 90-896 Scholte & Scholte (2002) FamCA 59 Davis v Davis (1976) FamCA 90-062 Page & Page (1981) FamCA 91025 Bassett v Bassett (1975) 1 AER 513 Sieling & Sieling (1979) FamCA 90,627 |
| Applicant: | MR FEARNE |
| Respondent: | MS FEARNE |
| File Number: | ADC 3796 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Becker |
| Solicitors for the Applicant: | Pederick Lawyers |
| Counsel for the Respondent: | Ms Benz |
| Solicitors for the Respondent: | Adey Lawyers |
ORDERS
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The wife do have the exclusive use and occupation of the former matrimonial home situated at Property K in the State of South Australia.
Pursuant to section 114(1) of the Family Law Act, the husband is restrained and an injunction issue restraining him from living at the said property.
Within 48 hours of the date of these orders the wife make arrangements in consultation with the husband to provide him with his clothing and gym equipment and any other essential items to provide him with his day to day needs.
The wife in consultation with the husband make all necessary arrangements to allow the husband to access the line of credit or any other financial resources available to the parties to allow the husband access to $10,000.00 which he is to utilize for alternate accommodation for himself.
The wife is to pay all outgoings including the mortgage payable on the former matrimonial home.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 17 February 2012 at 11:00am.
BY CONSENT THE COURT ORDERS THAT:
The children X born on (omitted) 2003 and Y born on (omitted) 2006 do live with the wife.
The said children do spend supervised periods of time with the husband as follows: -
(a)each Tuesday and each Thursday from the conclusion of school (or 3.30 p.m. if not a school day) until 6.30 p.m.;
(b)each Saturday from 3.30 p.m. until 6.30 p.m. commencing on 22nd October 2011;
(c)at such other times as may be agreed between the parties in writing with the negotiations for each period to be limited to one text message sent by the husband to the wife requesting same not less than five (5) days prior to the proposed period and one text message sent by the wife to the husband as soon as is reasonably practicable but within twenty four (24) hours in response thereto.
The periods of time spent by the said children with the husband do be supervised at all times by at least one of the following: -
(a)Ms H;
(b)the Carer Support workers named Ms M or Ms Y or such other female care support worker;
(c)such other persons as may agreed between the parties in writing from time to time not less than twenty four (24) hours prior to the relevant handover and notified to the children’s school/day care centre not less than twenty four (24) hours prior to the relevant handover.
In the event that any of the supervisors referred to in sub-paragraphs 9(a) and 9(b) hereof are unavailable to attend at the supervised periods as ordered herein they are to notify the wife of same as soon as is reasonably practicable via text message to the wife’s mobile telephone or by telephone ((omitted)).
The husband and the agreed supervisor do collect the said children from the said children’s school and/or day care centre at the commencement of the supervised periods referred to in sub-paragraph 8(a) hereof save and expect in the event that the said children are not in attendance at school and/or day care in which case the husband and the agreed supervisor do collect either or both of the said children from the wife’s place of residence (or at such other venue as is agreed between the parties in writing within the metropolitan area via text message not less than twenty four (24) hours prior to the relevant handover).
The wife or the wife’s nominated agent do collect the said children from the husband’s place of residence (or at such other venue as agreed between the parties in writing via text message not less than 24 hours prior to the relevant handover) at the conclusion of the supervised periods referred to in sub-paragraph 8(a) hereof.
The husband and the agreed supervisor do collect the said children from the wife’s place of residence within the metropolitan area of Adelaide (or at such other venue as is agreed between the parties in writing via text message not less than 24 hours prior to the relevant handover) at the commencement of the supervised periods referred to in sub-paragraphs 8(b) and 8(c) hereof and the wife do collect the said children from the husband’s place of residence (or at such other venue as agreed between the parties in writing via text message not less than twenty four (24) hours prior to the relevant handover) at the conclusion of those periods.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 28 November 2011 at 9:15am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of the matter is adjourned to 20 December 2011 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Fearne & Fearne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3796 of 2011
| MR FEARNE |
Applicant
And
| MS FEARNE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns issues arising from an application relating to the sole occupation of a jointly owned family home. As inevitably these types of case are controversial, it is appropriate that these orally delivered reasons for judgment be transcribed and released to each of the parties affected by the court’s decision.
This morning, I have to deal with an interim application regarding the occupation of the former family home of the parties concerned in the matter. The applicant in the proceedings is Mr Fearne. The respondent is Ms Fearne.
Mr Fearne commenced these proceedings on 11 October 2011. At his request, the application was made returnable urgently before myself on 17 October 2011. The reason for the urgency was that Mr Fearne, who has recently suffered a significant injury, had been discharged from hospital. As a consequence of his discharge, he was staying in transitional accommodation, which from his perspective was unsuitable for his needs. Against that background, he sought to be able to reoccupy the parties’ former family home, which is located at Property K.
In these circumstances, it was appropriate that the matter be dealt with urgently. Given the degree of urgency, it is not possible for there to be a lengthy hearing today, canvassing evidence from each of the parties concerning matters which are in dispute between them. There are many matters in dispute between the parties.
The case comes into my court against a background of family crisis. I have to make a difficult decision today. However, the decision I make today will not determine the final disposition of the parties’ property, nor will it make final arrangements for the care of the parties’ two children, X, who was born on (omitted) 2003 and Y, who was born on (omitted) 2007.
As a consequence of what has occurred recently the emotions of each of the parties remain raw. As such, it is very difficult for each of them to make difficult decisions. I am also concerned at the potential for these proceedings to consume a significant component of the parties’ available financial resources.
The parties are not wealthy people by any means and, regrettably, these proceedings have the potential to be financially burdensome for each of them. As I say, I have to make a difficult decision today. I am aware of the difficult emotional circumstances under which both of the parties are currently labouring.
By way of background, the parties are each of similar ages, both being born in the early 1970s. They married in (omitted) in (omitted) 1998 and migrated to this country prior to the birth of X. At the moment Mr Fearne, who is by occupation a (omitted), is in receipt of WorkCover payments. The amount, he receives is I think, somewhere in the vicinity of $765 per week.
Ms Fearne is an (omitted) worker. She is receiving an amount by way of income in the vicinity of $864 per week which includes government assistance to which she is entitled. Accordingly, neither party can be described as a high income earner.
X suffers from autism. I have not been provided with any extensive details of his condition, which it has been described variously as being mild or moderate. Y, the younger child, suffers from some difficulties with language and expression. These matters have been described variously as a learning difficulty or a language difficulty.
In his application, Mr Fearne seeks orders in respect of both children’s issues and the division of the parties’ property. It is his ultimate hope that the children are cared for in what is commonly called a shared care arrangement, that is, the children live for equal periods of time with each of their parents.
He has not delineated in any detail how the parties’ property is to be divided. However, it is his position, I think, that in general terms once the pool of property is known the parties’ assets should be divided equally.
The wife’s position is that she would want to retain the parties’ former family home. Like the husband, she has not been in a position to indicate with any precision how this outcome would be achieved. However, as I say, it is her position that she would ultimately want to retain the home.
She also has proposals for the husband to spend time with the children, but again they are not delineated, on a final basis, with any precision. She has some concerns, in the short to medium term, as to how Mr Fearne will be able to cope with caring for the children given that they are young children. They are demanding children. They are children with special needs, particularly X, and Mr Fearne is currently incapacitated.
The parties have agreed in the short term that Mr Fearne should spend time with the children on three afternoons per week for a period of some hours, but that given his incapacity – and I will return to that in a moment – that there should be someone there to oversee his time with the children because of his physical difficulties.
By way of background Mr Fearne was assaulted in his workplace some time in March of 2011. He has been in receipt, I think, of WorkCover payments since. More significantly, on 8 August this year, he was involved in a bicycle accident. He fell from his bicycle and fractured his pelvis and hip.
He was taken to hospital immediately after that accident and has had surgery and been in hospital, as I have said, for a significant period of time since. At the present time he is in the (omitted), which is basically an aged care facility.
The circumstances surrounding his bicycle accident are controversial, so far as the parties are concerned. It is but one of many controversies between the parties. From Mr Fearne’s perspective the accident was that, an accident. His bicycle slipped on a wet piece of road surface and he fell and injured himself.
From the wife’s perspective, shortly prior to the accident and for a period of months beforehand, Mr Fearne had been behaving oddly. As a result, she has grave concerns about his current level of psychiatric or psychological functioning. It is her position that in a state of emotional liability, Mr Fearne was riding his bicycle erratically and in a way calculated to disturb her. As a consequence of this type of behaviour, he fell and injured himself.
Whilst Mr Fearne was in hospital, it seems to be the position that Ms Fearne came to the conclusion that the marriage between the parties was over. It is trite, but true, nonetheless, that it is not necessary for there to be a mutual agreement between spouses that their marriage is over. A marriage can be brought to an end by the actions of one spouse alone.
The parties, at least in a formal sense, seem to acknowledge that they separated on a final basis towards the end of August whilst Mr Fearne was in hospital. The impression I have from reading the parties’ affidavit material and, indeed, having read some text telephone messages which were exchanged between them, that this knowledge and situation was a grave shock to Mr Fearne. That, of course, is understandable.
Whilst Mr Fearne was in hospital, Ms Fearne consulted her solicitors, as she is entitled to do. As a result of that consultation, a letter was couriered to Mr Fearne in hospital on or around 23 September 2011. In that letter formal proposals were put about the division of the parties’ property and about arrangements for the care of their two children.
More significantly, in terms of these proceedings, it was made clear to Mr Fearne that he was not welcome to return to the parties’ home and that arrangements had been made to change the lock on the premises, so that Mr Fearne could not access them. That is the precipitating factor to these proceedings, essentially.
It is Mr Fearne’s position that it is inappropriate for him, a man in the prime of life, notwithstanding his injuries, to be in respite care in a retirement village intended for older citizens. He wants to return to the property, which he legally owns and is entitled to occupy.
The wife’s position is that such an outcome will be intolerable for her and not one which is either objectively reasonable or one which is calculated to be in the best interest of X and Y. Essentially, it is her case that it is untenable for the parties to live under the same roof.
The English and Australian Common Law traditions have long respected the sanctity of proprietorial interests. As such, it is a very serious matter to turn a husband or wife out of their home. It is not to be done lightly.[1] Accordingly, I am well aware of the import of this decision for each of the parties concerned.
[1] See O’Dea v O’Dea (1980) FLC 90-896 at 75,648 per Murray J
When the matter was argued before me yesterday, I was told by Mr Adey, counsel for Ms Fearne, that if it be the order of the court that Mr Fearne could re-occupy the property, notwithstanding that order she would regard it as being unworkable for both parties and the children to be in the property. In those circumstances she would make her own accommodation arrangements. She sought 48 hours notice to make those arrangements. Mr Adey further submitted that these arrangements were likely to be that she would seek the assistance of a friend. Essentially, she and the children would stay with friends, until she was in a position to rent accommodation for herself in the private market.
The husband’s position is that presently he has nowhere to go, other than to his home. He is being managed on a day to day basis by the health system, which from its perspective has done its duty towards him as he is now well and able to be discharged into the community.
It is Mr Fearne’s position that it would be workable for both the parties to reside in the former family home. He deposes that although the house concerned is small, it has three bedrooms, one kitchen, one bathroom, one toilet but two living areas which are described as the lounge room and the family room respectively. He could occupy the lounge room initially sleeping on a recliner chair. But he would in time get a bed for himself.
In his affidavit he says as follows:
I seek urgently to return to my former family matrimonial home at Property K where I can attend to arranging occupational therapy to commence immediately. I have friends in the area who can support my recovery. I also seek to be with my children. All my clothing and personal belongings have remained in our former matrimonial home and I need access to those during my therapy. I also need access to my gym at home to assist in my recovery and to exercise. My home property is a large three bedroom home equipped with modern facilities and has two living areas – one large lounge room and a living room.
I wish to live separately from the wife under the one roof if necessary in the front lounge room where there is a recliner chair and I can arrange for a bed to become available to me. This is a separate room and I can access it from the front of the house independently without going through the rest of the house where the wife may reside with our two children should she wish to remain in the home. I can move around with the aid of crutches but I have been advised by my treating specialist that I will not be able to walk unaided for at least a further two and a half months.
The husband resolutely refutes any suggestion that he suffers from any psychiatric impairment. In support of his case, he has submitted a report from Dr M, who is the RMO at the (omitted) Hospital. She writes that Mr Fearne was seen by a psychiatrist, Dr W and was found to have no suicidal or homicidal thoughts, and was considered to be safe in the community. No formal diagnosis of any psychiatric illness was made.
As I say, it is the wife’s position that the husband has been acting unusually for some time. It is her case this is a consequence of the assault in March. He was urged to undertake some form of psychiatric treatment, to which he was resistant.
At this stage I am not in a position to assess the truth or otherwise of the wife’s assertions in this regard. However, I have been provided with some text messages between the parties which, I think, evince a level of emotional distress, on both their parts, which is understandable in all the circumstances.
It is also the position that each party has asserted that the other is emotionally unstable. The husband has asserted that the wife has a history of adolescent mental instability, which the wife vehemently refutes. The husband has also raised issues to do with the relationship between the wife and one of her friends (a female).
I say those things not out of any sense of prurience but to underline the emotional tensions and difficulties between the parties. The husband’s position is that if the wife feels that she has no recourse but to leave the premises so be it, he will resume occupation of the former home.
As I have already indicated the pool of property available to be distributed between the parties is a modest one. It consists chiefly of the former family home, which the wife values in the sum of around $300,000 but which is subject to a significant mortgage of $160,000. In addition each of the parties has a motor vehicle. The parties have modest superannuation entitlements and modest savings.
There is some controversy about the savings. It is the husband’s position that the wife has expropriated a significant proportion of these. It is the wife’s position that she has quarantined them following the husband stopping her access to a line of credit associated with the property. It is also the wife’s case that she had to pay for the completion of some renovations at the property. In addition she has had some liability to pay her legal fees.
She refutes any suggestion that she has expropriated unfairly these moneys. It is her position that, if she remains in the former family home she would do whatever is necessary to give Mr Fearne access to the line of credit and would, with him, authorise him being able to withdraw down the sum of $10,000, which she asserts would be sufficient to assist Mr Fearne to make his own arrangements in terms of his accommodation. If it be the court’s decision that Mr Fearne can re-enter the property and she has voluntarily left it, she would seek a similar accommodation for herself.
Accordingly, given that summary, it is clear to me that the parties do not have significant financial resources. There is no obvious or easy solution to this matter which has to be determined against a background of extreme crisis. Whatever I do one of the parties will feel hard done by. That is inevitable. Further, I also have to consider the interests of two other individuals, namely the two children concerned.
Against this difficult background, I turn to the applicable legal principles. The basis of the wife’s application for sole occupancy of the former matrimonial home lies in the provisions of section 114(1) of the Family Law Act. The relevant portion of this section reads as follows:
“… the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated.
In this case it has been agreed between the parties that the wife is to be regarded as dux litis. She seeks such an injunction. She seeks an injunction restraining Mr Fearne from being able to come into the former family home.
For his part, Mr Fearne does not seek any such an injunction, it being his position that both parties can be together in the home. As such, it is his position that he does not wish to exclude Ms Fearne from the home, but if she wants to leave it voluntarily, he of course is not in a position to stop her doing so.
The court has authority to make an injunction, pursuant to section 114, in proceedings which relate to a matrimonial cause. Proceedings relating to the division of matrimonial property are such a matrimonial cause. Accordingly, I am satisfied that I have authority to grant such an injunction in this case.
In a recent case of the Full Court of the Family Court, Scholte & Scholte[2], the Full Court has described the criteria to be applied to a sole occupancy application as being “surprisingly vague”. The seminal case regarding the use of section 114 and sole occupation applications is the early case of Davis v Davis[3]. In that case, it was said that the matters to which the court should have regard, in its deliberations as to whether it was proper to make a sole occupation order, included the following:
“…the means and needs of the parties; the needs of any children concerned; hardship to either party, including any relevant children; and, if relevant, conduct which justifies one party being expelled from the former matrimonial home.”
[2] See Scholte & Scholte (2002) FamCA 59
[3] See Davis v Davis (1976) FamCA 90-062
As I say, Davis was decided in the early days of jurisprudence, pursuant to the Family Law Act. More recent cases – and in this regard, I have reference to the case of Page & Page[4] – I have focused on issues which relate to what has been described as the strict practicality within the context of the realities of family life. In Page & Page, the Full Court of the Family Court referred to an English decision of Bassett, in which Ormrod LJ said as follows:
“In my view, the approach of the court to these cases of applications to expel a spouse from the matrimonial home should be strictly practical, having regard to the realities of family life. Where a mother is looking after a child, or children, it is necessary to examine with the utmost care whether it is really practicable for the husband and wife to continue to live in the matrimonial home.”
[4] See Page & Page (1981) FamCA 91025
In Bassett v Bassett[5], it was posed as a question which the court should ask of itself, in cases such as this one:
“Is it really sensible to expect a wife to endure the pressures which the continued presence of the other spouse will place upon them?”
[5] See Bassett v Bassett (1975) 1 AER 513 at 520 approved in Page v Page (1981) FLC91-025
More recently, in the case of Price, which was a decision of Lindenmeyer J delivered on 12 July 1982, and which was approved by the Full Court, again, in another case entitled Davis, His Honour indicated that there had been a softening of the court’s attitude towards exclusive occupation orders.
It was now no longer necessary for an applicant, for such an order, to demonstrate irrational, intolerable, or awful behaviour on the part of the party whom it was sought to exclude. Rather, Lindenmeyer J said:
“The court should regard the situation between the parties as being such that it would not be reasonable, or sensible, or practicable to expect them to continue to remain in the home together.”
Notwithstanding such a dicta, I have to be aware of the fact that mere inconvenience to a party is not sufficient to justify a sole occupancy order. I also have to be alive to the risk that, in acrimonious proceedings, which commonly occur following the separation between spouses, sole occupancy injunctions may be used as a tactical weapon in the ongoing conflict between the parties concerned.
Accordingly, caution is required in assessing whether such an order should be made, particularly as at the interim stage. It may be difficult, if not impossible, to predict who of the parties, ultimately, is likely to retain control of the property in question. Indeed, it may, ultimately, not be possible for either of the parties to be in a position to retain the property, through the acquisition of the other’s interest. The property may have to be realised. I do not know.
Ultimately, however, the power to grant such an injunction is a discretionary one. It must not be exercised lightly, given I am interfering with the proprietorial interests of a spouse. As such, I should not proceed on vague or uncertain claims. In this regard, see Sieling & Sieling[6].
[6] See Sieling & Sieling (1979) FamCA 90,627
What I must do, I think, is examine the entire circumstances of the parties concerned, and determine whether, on the facts of the particular case, such an order is justified. That, in my view, is what is meant by the requirement that the order be “proper”. Essentially, I have to determine whether it is proper for one of the parties to be excluded and, in so doing, it is my responsibility to ensure that individualised justice is delivered.
I turn in more specificity to the various criteria outlined in the seminal case, as I have described it, of Davis. The means of each of the parties are modest. Each of them is in receipt of a modest wage. It is trite, but true nonetheless, to point out that two individuals cannot live as cheaply as one combined family. I am concerned about the specific needs of X and Y. At this point, the husband is not in a position to provide for the care of those two children, due to his current level of serious incapacity.
In those circumstances, the wife is the unchallenged primary custodian of the two children. I have no reason to disbelieve what is said by the wife, that she will not remain in the family home if Mr Fearne reoccupies it.
This intention must mean that she and the children will seek alternative accommodation. In the short term, this must be a somewhat hand to mouth arrangement. I also accept, although I have not been provided with any extensive details about their particular needs, that both X, in particular, and Y have some special needs. These needs are likely to be best catered for in the family home with which they are familiar.
Having said that, I am, of course, not insensitive to the needs of Mr Fearne. He is on crutches. It seems that he is in need of occupational therapy or physiotherapy in the short to medium term. It is his position that it is simply not open to him to get any alternative accommodation. It is his evidence that he has been assisted to get what accommodation he has, at (omitted), through the aegis and assistance of a social worker. He does not know how long he can rely on that assistance.
The discharge summary from the hospital indicates that he is likely to need help, at least in toileting himself during t he night. How precisely his proposal to care for himself in the former matrimonial home would work out is unclear to me. I do not know whether he had hoped that Ms Fearne would assist him with his meals, and so on and so forth. That has not been delineated with any specificity. Anyway, it is clear to me that Ms Fearne is not prepared to so assist.
As I say, I am concerned about the needs of any children concerned. As such, I have some concerns about the prospect of X and Y living, on an ad hoc basis, away from the familiar circumstances of the property in Property K.
I consider that it will constitute a grave hardship to Mr Fearne if he is excluded from the former family home. I can well understand why he would apprehend that his disabilities are being taken advantage of by the wife, who has sought to exclude him from the home when he is at his most vulnerable.
Yesterday, I accepted the submission of Ms Pyke of Senior Counsel that it is notorious that there is a surfeit of appropriate accommodation for people who are in their prime years of life but who are rendered disabled, either through accident or illness. It is also, I think, well‑known, how inappropriate it is for such persons to be cared for in facilities which are designed for elder and infirm citizens, many of whom have significant levels of cognitive deficit.
However, it would seem to me that Mr Fearne, particularly if he is allowed to access some of the parties’ financial resources, is not without the means of finding some form of accommodation for himself, particularly if those who have assisted him up to this stage are prepared to continue to assist him.
As I say, the case was listed urgently because it was put on his behalf that Mr Fearne had nowhere to go and in effect, he would be left on the street. I have some reservations about the level of drama implicit in such a submission.
Underpinning the wife’s case is her position that, as a result of the husband’s conduct towards her, she has no alternative to seek what, she concedes, is an unpalatable order from her point of view.
It is my understanding that both parties are religious people. Of course, it is harsh for a person who is injured and hurt to be prevented from having a place to lay his head, metaphorically, speaking, particularly if he owns the place in question. But it is the wife’s position that the husband’s behaviour towards her, and towards those who are associated with her, is becoming increasingly bizarre and uncomfortable.
The husband rejects those assertions as being tactical in nature and motivated by her own needs. Ms Fearne has approached a psychologist, Mr I. I have a report from him, dated 29 September 2011. He describes Ms Fearne as, in July 2011, suffering from significant stress. I have no reason to disbelieve that assertion by the psychologist concerned.
These proceedings have been vigorously contested in a short period of time. From 11 October until now, there have been numerous affidavits filed. Each of the parties, concenred have made stringent criticisms against the other. Each has said, in effect, that the other is mentally unstable. From the husband’s point of view, he asserts that the wife is callously disregarding his needs and feelings.
Against that background, I pose for myself the question, is it really sensible to expect the parties to live in a suburban home together, with all the difficulties incumbent upon Mr Fearne being on crutches, there being one toilet and there being one bathroom, and there being two young children, one of whom suffers from autism.
In my view, to use the words of Lindenmeyer J, I do not think that would be a reasonable, sensible, or practical outcome. Rather, I have have come to the conclusion that it would be untenable or unworkable one.
The question therefore is, given that Ms Fearne has said that she will go, come what may, if Mr Fearne does present himself at the property, should I take that as being a concession on her part that Mr Fearne, really, should come back into the property.
This is a very difficult case. It is finely balanced, but considering the needs of the parties and considering, particularly, the needs of the two children concerned, I do not think that would be a proper outcome.
At this stage, on balance, I think the solution proposed by the wife, that Mr Fearne should have access to the line of credit in the sum of $10,000 to reaccommodate himself, is likely to be the better outcome in this case.
It seems to me that – and, I appreciate, Ms Pyke was critical of me, I think, yesterday, for transgressing into matters about which there was little or any evidence, but Mr Fearne needs support. He has said he will get it from friends of his, and that he will need support, which the wife is not prepared to provide to him at this juncture.
But it is just not workable for him to come back into the home and the greater hardship will be occasioned to the wife, in those circumstances, by compelling her, in effect to leave with X and Y.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 20 October 2011
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