HEROUZ & HEROUZ

[2017] FamCA 685

FAMILY COURT OF AUSTRALIA

HEROUZ & HEROUZ [2017] FamCA 685

FAMILY LAW – CHILDREN – PARENTING ORDERS – INTERIM – Application for interim parenting orders – Where the father seeks equal shared care of the parties’ three young children – Where the mother has made allegations of family violence against the father – Where equal shared care is not appropriate – Orders made for the children to continue to live primarily with the mother and spend time, including overnight time, with the father.

FAMILY LAW – PROPERTY – INTERIM – Where each parent seeks sole occupation of the former matrimonial home – Orders made for the mother, who has primary care of the children, to have exclusive occupation of the former matrimonial home.

APPLICANT: Ms Herouz

RESPONDENT: Mr Herouz

FILE NUMBER: SYC 4915 of 2017

DATE DELIVERED: 6 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Moutasalem

Orders

IT IS ORDERED

1. That by 4.00 pm on 14 September 2017, the father vacate the property at B Street, Suburb C (“the home”) and thereafter remain away from that property except for the purpose of collecting or returning the children D born … 2007, E born … 2009 and F born … 2012 pursuant to these orders or on the invitation of the mother.

2. That from 4.00 pm on 14 September 2017 the mother have the right of sole occupation of the home.

3. That the children live with the mother.

4. That the father spend time with the children as follows:

   (a)       Commencing on Friday 8 September 2017, each alternate weekend from after school on Friday until Sunday evening at 7.30 pm.

   (b)       Commencing on Friday 15 September 2017, each alternate Friday afternoon from after school until 7.30 pm.

5. The father shall collect the children from school at the commencement of their time with him and return them to the mother.

6. That both parties be restrained from physically punishing or disciplining the children.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Herouz & Herouz 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 SYDNEY

FILE NUMBER: SYC 4915 of 2017

Ms Herouz

Applicant

And

Mr Herouz

Respondent

REASONS FOR JUDGMENT

1. Ms Herouz (“the mother”) and Mr Herouz (“the father”) have three children, D aged ten years, E aged almost eight years and F aged five years.

2. They were married in 2005 and separated when the mother left the home in which they lived with the children on 1 August 2017 and moved with them to her father’s home.    

3. The mother has filed an application seeking interim orders in relation to parenting and sole occupation of the former family home. She proposes that the children see their father on alternate Saturdays and Sundays for six hours. She also seeks orders restraining the father from physically chastising the children and an order that the family attend family therapy.

4. The father, in his response, seeks an order that the children spend equal time with each parent. He opposes the mother’s application that she occupy the former family home and he seeks exclusive occupation of that property.

PARENTING

1. It is not disputed that the mother has been the primary carer of the children. When they were younger, she did not work. More recently, she has undertaken part-time work for three days each fortnight. The father is a professional, working for a multi-national firm. He has worked long hours and travelled extensively for his work. He has not taken school holidays off to be with the children.

2. The father has recently sought and obtained permission from his employer to work from home for five days per fortnight but that is not the regime to which the children are accustomed and his capabilities as an “equal time parent” have not been tested.

3. The mother deposed to family violence, particularly from the father towards the children. Those allegations were disputed. These proceedings are interim in nature and it is not possible to determine which version of the disputed events should be accepted. However, some assistance is provided from interviews with the children conducted by an officer of the Department of Family and Community Services (“DFCS”).

4. In January 2016, the mother’s general practitioner prepared a mental health care plan noting as the main problem, “marital breakdown, anxiety … fear for the childrens (sic) safety usually verbal abuse and manipulative threats, peace in the home is unpredictable”. 

5. The mother’s allegations, denied by the father, are set out herein.

6. She alleges harsh physical punishment of the children by their father.

7. The mother deposed that in March 2017, the father grabbed D by the jaw leaving a red mark and that D also complained that his father pushed him into a glass door.

8. The mother deposed that in May or June 2017, E said to her, on a couple of occasions, “I want to die”.

9. In June 2017, the children were referred to a psychologist, Ms G.

10. The mother deposed that in June 2017, the father yelled at F and hit her three times leaving a red mark on her hand. In June 2017, E again told the mother that he wanted to die.

11. The mother also deposed to escalating episodes of violence by the children towards each other and towards her.

12. The children commenced counselling with Ms G in July 2017. At about the same time, the school principal showed the mother a note written by E stating “I want to jump off the roof”. The next day, there was an incident where E was violent towards his mother. Later, the mother saw the father pin E to the ground and E complained that his father had hurt his arm. E later suffered a panic attack and D kicked his mother when she tried to calm him.

13. On 24 July 2017 the mother made a complaint to the police in relation to family violence.

14. On 1 August 2017 the mother left the home with the children and thereafter the father has had very little opportunity to spend time with them.

15. The children were each interviewed by DFCS on 10 August 2017.

16. F told DFCS that she loves her daddy and he gives her cuddles. When asked about her worries, F said that daddy shouts at her and it hurts her ears and gives her a headache. She said that her father smacks her on the arm but she also said that this last happened when she was two years old.

17. E said that it was a bad thing that his father lived in a separate house. He said that his father shouts when he is angry and “squeezes our arms, he holds me tight even though I have small arms”. E said that his father last hurt him in July sometime.

18. D told DFCS that his father was a good dad and he liked going on trips in the car with his father. Asked if there was anything he did not like about his father, D said that his father “gets a bit upset”. He said that he can tell if his father is “in a mood” and he tries not to get in a fight with his father. He said that the rest of the family “doesn’t like it”, I infer meaning that they do not like the father being “in a mood”. D said that his father has not hurt anyone but acts and talks as if he has stopped himself from doing so. D said that he talks to his aunt if he is upset.

19. D told DFCS that his mother does not let him see his father for more than a few hours and that he is “desperate” to see his father.

20. The father was also interviewed by DFCS. He said that the mother’s main concern was that he raised his voice from time to time but denied that he had acted aggressively towards the children. He said that the mother also smacked the children.

21. The father has talked to the children about equal shared care and discussed a 50/50 arrangement with the boys at least.

22. He denied physically disciplining the children except “on the back of the hand”. He told DFCS that the mother had no boundaries, and that she locks the children in their rooms. Her method of discipline is that they have three “strikes” then they have to go to their room or are not allowed to watch Netflix.

23. DFCS told the father that all three children said they were scared when he yelled. The father responded that he was attending mindfulness counselling which was helpful to him and that he was “self aware”. He did not acknowledge any effect on the children of his behaviour.

24. There is no dispute that the children will benefit from having a close and meaningful relationship with their father. The issue is how that relationship can be promoted while ensuring that they are safe while the competing allegations are being explored and the evidence tested.

25. The children love their father and want to see him.

26. The mother is their primary carer and their principal attachment and security is with her. All three children spoke very positively about their mother to DFCS.

27. The regime which the father proposes would constitute a significant change in the children’s circumstances. They are accustomed to the care of their mother. The father is untested as an equal time parent. The children have not spent significant time away from their mother and it is not known how they would cope with prolonged separation from her. This is particularly so in relation to F.

28. The parents will live in reasonable proximity to one another. The father, if he is required to vacate the home, will rent alternate accommodation suitable for the children.

29. Although the conflicting accounts cannot be determined here, there is evidence that causes concern about the father’s ability to care for the children’s emotional needs and corroborates the mother’s accounts of his being harsh in physically disciplining them.

30. Annexed to the mother’s affidavit is a letter from E’s teacher dated 30 August 2017, stating that his behaviour in class has improved over the past few weeks. She states:

    At the start of the year, I reported that [E’s] behaviour was impulsive and disruptive and hindering his application in all tasks. I had also checked with E’s previous teacher who had not observed such behaviours last year. Over the last month especially, [E] is much calmer and able to follow directions quickly and complete his work.

31. Whether the change in E’s behaviour, as observed by his teacher, is due to his removal from his father or to his removal from the stress and tension created by the breakdown of his parents’ relationship is a matter that will be determined with the assistance of expert evidence in the substantive proceedings, but the possibility that at least part of the explanation is that he is removed from his father’s discipline cannot be disregarded.

32. All of those matters mandate that the children continue to live in the primary care of their mother.

33. I do not consider that equal shared care is appropriate at the present time. The evidence such as is available supports the children living primarily with their mother.

OVERNIGHT TIME

1. The mother proposes that the children spend six hours each week with the father on alternate Saturdays and Sundays.

2. Counsel for the mother submitted that the period needs to be short to protect the children from the father’s behaviour towards them.

3. This is not a matter where the mother alleges that the father is violent towards the children frequently or consistently. Her allegations since the beginning of this year relate to an incident on New Year’s Eve with D, hitting F in March, yelling at F in June and pinning E to the ground in July. I am also conscious of the children’s reports of their being scared when their father shouts. Whilst I do not underestimate the significance of these alleged incidents, they are not of such frequency or significance that the children should be deprived of the opportunity to spend overnight time with their father. They clearly miss him and want to spend time with him.

4. I propose to order that both parties be restrained from physically chastising or disciplining the children.

5. The time they will spend will not be during the working week and the pressure of time will not be so great as it is when the family needs to meet deadlines such as leaving for school, for work and completing homework.

6. The children should spend weekend time with their father from after school on Friday until Sunday evening in alternate weeks. In the other week, they should spend Friday afternoon with him from after school until 7.30 pm.

7. Nothing in the orders will prevent the father from attending at the children’s sporting events and schools.

SOLE OCCUPATION

1. It is clear that the parties cannot live together in their former family home.

2. The father has a significant excess of income over expenditure of some $2,675 per week and it is conceded that he can afford to rent alternate premises. I am conscious that his surplus income will be reduced when he starts paying child support but he will still be in a position to afford rent. He has $131,000 in the bank.

3. The family home has a mortgage balance of about $950 and the father has deposed that the repayments are negligible. There is an offset account containing a sum greater than the mortgage balance.

4. The mother and the children are currently living with the mother’s father. Counsel for the father submitted that, while the maternal grandfather can accommodate the mother and the children, there is no need for her to move back to the family home. I do not accept that submission. The maternal grandfather has no obligation to house these children. That is the responsibility of their parents.

5. The mother has an income of $435 per week and cannot afford to pay rent from her income.

6. The father does not pay child support although no doubt there will be an assessment in due course. The mother has withdrawn $103,000 from their joint accounts and has that money to provide for the children’s needs until such time as the father starts to pay child support.

7. The family home has been the children’s home. In circumstances where their parents’ relationship has broken down and their parents cannot live together, the children will benefit from the stability of living in their own home with familiar surroundings.

8. Since they will live primarily with their mother, she will live in the family home with them.

9. The orders will provide for the father to vacate the family home and for the mother and the children to live there.

FAMILY THERAPY

1. No submissions were addressed to this issue by counsel for the mother.

2. Counsel for the father submitted that, in circumstances where the mother and the father are each attending on different therapists, and the children are attending upon a third therapist, an order for family therapy might not be appropriate. I accept that submission.

3. It may be appropriate, at some future time, for there to be family therapy but that is a matter which can await the recommendations of the therapists already involved with the family.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 September 2017.

Associate: 

Date:  6/9/2017