Holden and Dunlop

[2016] FCCA 2536

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLDEN & DUNLOP [2016] FCCA 2536

Catchwords:
FAMILY LAW – Application for sole occupation by the wife – wife is the primary carer of 3 foster children with special needs who have lived with the parties since they were around a week old – wife wishes to retain the matrimonial home in final property distribution – husband wishes to sell the matrimonial home – husband seeks that wife and children return to the home and that the parties and children can live separated under one roof – wife alleges husband’s conduct has been distressing, hostile and intimidating and it is not possible for herself and the children to move back in and live with the husband – husband asks Court to disregard the needs of the children in its consideration of the issues in determining the sole occupation application –application for sole occupation granted.

Legislation:

Family Law Act 1975, s.114

Cases cited:

Walker & Walker (1978) 3 All E.R 141

Davis & Davis (1976) FLC 90-062
Dees & Dees [2010] FMCAfam 682
Kimberley & Kimberley [2011] FamCA 406
Dean & Dean (1977) FLC 213

Applicant: MS HOLDEN

Respondent: MR DUNLOP

File Number: LEC 432 of 2016

Judgment of: Judge Willis

Hearing dates: 15 and 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Cairns

Delivered on: 29 September 2016

REPRESENTATION

Solicitors for the Applicant: McVittie Legal

Solicitors for the Respondent: Self-represented

ORDERS

1. That the Applicant be granted sole occupancy of the property situated at Property C (“the former matrimonial home”), to the exclusion of the Respondent. Sole occupation by the Applicant is to continue until the finalisation of the property application.

2. That upon the Applicant assuming sole occupancy, the Applicant is solely responsible for the payments of the mortgage, council and water rates and utilities with respect to the former matrimonial home. 

3. That the Respondent forthwith do all acts and things to vacate the former matrimonial home and provide sole occupancy to the Applicant by no later than Monday 24 October 2016.

4. The matter is to be listed for mention on 15 December 2016 at 9:30 am in the Federal Circuit Court of Australia at Cairns. THE COURT NOTES the parties are attending a Financial Conference on 10 November 2016 at 11:00 am in Brisbane. 

5. The Solicitor for the Mother and the Father are granted leave to appear by telephone at the next mention date provided confirmation is made with the Registry 1 business day prior to the mention, that a telephone appearance is requested.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

LEC 432 of 2016

MS HOLDEN

Applicant

And

MR DUNLOP

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Adjournment application of the husband

1. This matter has been listed today to hand down reasons for an application for sole occupation by the wife and opposed by the husband. I heard the application by telephone on 15 September 2016.    Yesterday I indicated through my associate that the judgment would be delivered this morning. 

2. Prior to my giving the reasons, Mr Dunlop (“the husband”)  asked that I deal with his urgent application in a case forwarded by him to the Court yesterday afternoon and forwarded on by a Registrar.  The urgent application in a case seeks six orders:

   1. That the Respondent be granted leave to reopen the Application for Interim Orders by the Applicant.

   2. That the Respondent be granted leave to tender further evidence on the Interim Application.

   3. That Order 6 made by this Honourable Court in Orders 5 September 2016 be discharged.

   4. The costs of the single experts for the home and the legal practice are to be paid for by the Applicant and the Respondent with the costs to be born equally. 

   5. That the Applicant pay the Respondent’s costs.

   6. Such further Orders as this Honourable Court deems necessary.

3. I have indicated to the applicant, a solicitor who is representing himself in his own family law proceedings, that I would grant him leave to re-open the interim application in relation solely to the issue to do with what the husband has raised, which was his new belief that the wife had; (a) organised accommodation that she had not previously told the Court about during the interim hearing for sole occupation – that the wife had withheld this information and (b) that he now has evidence is that after a specific date, the wife would be homeless. I indicated I would only deal with orders 1 and 2 of his urgent application.

4. The background to this request of the husband to urgently re-open the application of Ms Holden’s (“the wife”) sole occupation application to receive further evidence, started on on 26 September 2016, when an email was sent to my chambers by the solicitor for the wife, essentially asking ‘when will Her Honour be handing down the decision on sole occupation?’ The email reads, “We note that an interim hearing of this matter in relation to our client’s application for sole occupancy of the former matrimonial home was held on 15 September 2016. Our client is required to relocate from her current residence this weekend and we would be grateful if we could have some indication as to when Judge Willis anticipates being in a position to provide Judgment in this matter. We thank you for your assistance in this regard.”

5. At the outset I observe that this is not new information that the wife was required to vacate her current accommodation by 30 September 2016, was always her case, as set out in her material.  It was for this reason that the matter was listed as soon as possible after the first return date. 

6. As a result of receiving his copy of that correspondence[1] the father replied on 26 September 2016 at 4:35 pm[2] saying that the email appears “to imply that your client has not arranged alternative accommodation for the children as at Friday 30/9” and the father expressed his deep concern at the possible reaction of FACS; requested their instructions as a matter of urgency and said “if he did not receive a reply by 12pm the next day, he had no alternative but to update FACS as to the current situation so as to allow for the possibility that the children can be placed with their father rather than FACS removing them to pars unknown when they become homeless as a result of your clients.”

   [1] Affidavit of the Husband filed by leave 29/09/16, annexure B.

   [2] Affidavit of the Husband filed by leave 29/06/16, annexure C.

7. It is noted that these parties have raised three children placed with them in a foster care arrangement, almost since the birth of each child, during the course of their marriage. Post separation the children have remained living with the wife and spend time with the husband.

8. On  27 September 2016 the solicitor for the wife replied saying:

   “We refer to the above and your email to our office yesterday in relation to the living arrangements for our client and the children once her lease expires on 30 September 2016.

   We are instructed to advise that as it is now school holidays our client has booked a holiday apartment in (omitted) for the next 10 days. Our client has the capacity to extend her occupation of that property should it become necessary.

   We trust this information allays your concerns”[3]

   [3] Affidavit of Husband filed by leave 29/09/16, annexure B.

9. That response resulted in anther email from the husband on the same day asking ten questions, as seen at annexure “C” of the husband’s material.

10. As a result of that exchange, the husband has now filed an urgent application to re-open (which has not yet been sealed but sent to the Court and which the husband asks that the Court consider on an urgent basis and before handing down the decision on the wife’s application for sole occupation, listed for this morning). On checking with Ms McVittie solicitor for the wife, as to her position in answer this “urgent” application to re-open the interim hearing, Ms McVittie stated that the issue that is raised by the husband about the mother’s housing is simply answered by the wife’s letter in response, written on the same day.  That is, that the property the wife is referring having moved to is a holiday home and not permanent housing, and the time period can be extended if necessary, pending the decision of the Court.  The extent of the “material evidence” being withheld from the Court as alleged by the husband, is that the wife has taken a holiday home.    

11. I then said to Ms McVittie, ‘so essentially your submission is that this is a holiday home as set out in your letter?’ Ms McVittie replied, “yes”. 

12. The letter to husband explaining this says essentially, ‘I have organised alternate accommodation, my enquiries haven’t been fruitful.  I have organised holiday accommodation, the holiday accommodation can be extended if need be. I have organised a removalist to collect my furniture from the storage shed. Should I not be successful in my application to have sole occupancy of the home, I will reluctantly stay with my parents until I am able to find alternate accommodation.’   That is the extent of the reply. 

13. Upon agreeing to re-open the submissions, to hear the further evidence of the husband, I was aware that Ms McVittie had not been given any time to respond to the husband’s urgent application to re-open the interim hearing.  The husband had only forwarded an unsealed copy of his urgent application to the wife’s solicitor in the afternoon before.   In order to allow the husband’s urgent application to re-open the interim hearing to proceed and be heard today, before handing down the decision (that was scheduled to occur this morning, and to give the wife procedural fairness, I invited the wife to file an affidavit, saying what they had said in their letter or anything else they wished to in response, put it on oath, send a copy to the husband and to my chambers and that I would stand the matter down to do so, and then we would resume.

14. The matter was stood down to allow that to occur at 10:02 am after starting the proceedings at 9:46 am. The affidavit of the wife was received in the registry here at 10:42 am. The parties were called and I am told that my associate spoke to the husband to make sure he had the affidavit, who had said that he had not checked his email and he then did so. I recalled the matter at 11:08 am. 

15. The husband then said having read the affidavit that now he needed more time to consider the submissions he wished to make about the wife’s reply, (which said nothing else than what was in the letter written to the husband on 27 September 2016, and which he annexed to his “urgent” application.) 

16. The husband strongly argued that now that the wife has filed an affidavit, he is not in a position to make submissions because he needs a lot more time to be given to him to consider his submission in response. I then adjourned the matter again at 11:16 am to give the husband more time to consider his submissions as requested. I therefore stood the matter down again until 12:35 pm. 

17. When the matter was again called on at 12.35pm the husband told the Court he still has not had time to collect his thoughts about making submissions in response to the 6 paragraph affidavit, which explains that wife has organised for herself and the children is a holiday home. The husband stressed to the Court that it is procedurally unfair for the wife to be able to file an affidavit during a hearing and it is very unfair for him to have to respond to it, given that it is received during the hearing. He now asks for a further adjournment to consider his submission, in reply. 

18. I am not prepared to grant any further adjournment to enable the husband to consider his submission in response to the wife’s answer to his “urgent application in a case to re-open”, which is simply that she has taken a holiday home, which time she can extend, and if she hasn’t got other permanent accommodation, she will have to move in with her parents until she secures some.  It is not as the husband submits that the wife has made arrangements and hid a material fact of having other accommodation available.   

19. I heard the application for sole occupation the week before last and reserved it.  My chambers contacted the parties yesterday and indicated to the parties that today I would give reasons. The husband has forwarded a proposed urgent application to re-open the interim, before I hand down the decision.  The issue he wants to agitate, amounts to a single issue. The husband has known the answer to his query (as set out in his affidavit accompanying his “urgent application to reopen” to the wife asking her what sort of accommodation have you got?) since the 27 September 2016[4] (annexure B of his affidavit) the day after he sent an inquiring email on 26 September at 2.03pm. He was told that the wife has organised holiday accommodation. The affidavit says that.

    [4] Affidavit of the Husband filed by leave 29/09/16, annexure B.

20. The husband’s opening submission today for his leave to “re-open” the interim hearing is that the wife’s email asking for the progress of the outstanding judgment carries with it an implication that the wife and children are homeless at the end of the period referred to in her letter.    I do not accept that implication.

21. The husband then proceeds to say that having set out his case that he now wants to make submissions about the mother not disclosing she had alternate accommodation, which time will be permitted, but that he is not now in a position to make submissions about the response of the wife, which is in her affidavit.  The affidavit filed by the wife as I said, is six paragraphs. I have read it practically into the record word for word.  There is nothing new in the affidavit. There is nothing in the affidavit that the husband is taken by surprise with. It is simply says that the wife has organised a holiday home.

22. The husband has also taken strong objection, and objected to, the wife being able to make any reference to their children. I have overruled him in relation to the wife not being able to make any reference to the children. Very forcefully the father has said to the Court that this Court doesn’t have jurisdiction to make any orders involving the children (making reference to section 69ZK of the Act) because the children are foster children and therefore any reference to them by the wife should be removed.

23. I do not accept that the husband’s submission is sustainable at law.  It is also a curious submission for the husband to make given that throughout the submissions in the interim hearing for sole occupation on 15 September 2016, reference has been made to the children and given that the husband himself took me to the law and to the considerations which the authorities require, including reference to the needs of children. The affidavit in response filed by the wife by leave today, was in response to the husband’s urgent application and affidavit filed by leave today.  The wife’s affidavit does nothing more than state what is stated in the wife’s earlier letter to the husband.

24. This is the husband’s urgent application. The other side only received his application yesterday afternoon at 2:45 pm with an unsealed copy.   The matter was listed at 9:30 am today for judgment to be delivered.  I do not consider that the husband suffers any hardship by not having a further adjournment to think up what else he could say by way of a submission in support of his own urgent application or in response to an affidavit which simply affirms what the husband already knew.

25. The request for an adjournment to allow the father to consider what else he can say in his submissions is therefore denied. 

26. I will take the parties further submissions in relation to the “urgent application in a case” filed by the husband.

SETTLED EX TEMPORE REASONS: APPLICATION FOR SOLE OCCUPATION

1. This matter is an application for sole occupation. This is now the third time I have had it before me today. I have had regard to the material filed, to the submissions of the parties and to the additional material filed by the husband and by Ms McVittie on behalf of the wife and to their additional submissions as a result of the husband’s urgent application to re-open the interim application for sole occupancy.

2. The applicant in this matter is Ms Holden, the wife, and the respondent is Mr Dunlop, the husband.  The husband is currently 52 and the wife is 47. The wife in this matter filed an application for property orders on 1 August 2016 and interim orders for sole occupation of the former matrimonial home. 

3. The wife sought and was granted an abridgment of time as was shown on the face of the application and that the matter be listed urgently on the condition it be served forthwith.  A return date of 16 August 2016 was indicated on the wife’s initiating application on her documents which were filed in Lismore.  The husband is a solicitor in (omitted) and he says he has a conflict before all of the Brisbane family law judges.  Initially, the matter was listed before another Judge on an earlier date but it seems that there was a conflict with that Judge too and, in any event, it was relisted before me on 5 September 2016 in Brisbane when I was sitting as a visiting Judge. 

4. The husband is acting for himself in this matter. The wife has Ms McVittie representing her. When the matter came on before me as a first return date, the husband had not complied with the Federal Circuit Court Rules2001 by filing a response, affidavit and financial statement within 14 days of being served.  From the bar table, the husband said he had not filed any material as he had been very busy in the Federal Circuit Court with a matter in Lismore on the Friday before the Monday he appeared.  He also said he thought he had 28 days to file his response which he subsequently admitted was wrong. 

5. On that first return date, the wife through Ms McVittie indicated that she would be amending her orders sought in her property application to reflect the fact that she wished to retain the matrimonial home rather than sell it. I was advised by Ms McVittie for the wife that the husband, whilst not having filed any material, had been having discussions with a real estate agent about listing the house for sale and seemed to be in the process of making arrangements to have it listed. Ms McVittie advised that the wife did not agree with the proposed sale as she said she wished to retain the property. 

6. Whilst having no material filed at all, the husband indicated that, “yes”, he would be seeking for the house to be sold and he had had discussions with an agent. The husband also indicated that he would be seeking parenting orders for the children. In response to that, Ms McVittie advised the court that as set out in the wife’s affidavit the children raised by the parties during this marriage and which the wife deposed to as loving dearly are not the biological or adoptive children of the marriage, rather, they are children placed with the parties under a foster-care arrangement. 

7. That being so, Ms McVittie advised the Federal Circuit Court did not have jurisdiction to make the parenting orders as were proposed by the husband other than as provided for in section 69ZK of the Family Law Act 1975 which is that the Orders can only come into effect upon the Departmental orders expiring or that the application is filed with the consent of the Department. No consent in writing accompanied the application nor had been obtained. There are three children who have been raised by these parents. The wife, respecting the identity of the foster children as compared to the husband, who has listed out their full names and surnames, has referred in her affidavit to them by their initials only.  The wife says at paragraph 60 and onwards that:

   “All three of our children are foster children although I consider them as my own.  E is about to turn six.  He has been with us since he was four days old. S has just turned five and she has been with us since two days after her first birthday and R has just turned two and has been with us since she was 16 days of age save and except for a period of four weeks.”

1. The wife set out in her affidavit that the eldest two children are subject to a final order made in the Children’s Court allocating parental responsibility to the Secretary of the Department of Family and Community Services until they reach the age of 18. The youngest child is the subject of an interim order allocating parental responsibility to the Secretary of the Department of Family and Community Services.  The husband indicated on the first date that he would be seeking the consent of the Department for him to proceed with parenting orders in the Federal Circuit Court as he said it would be sensible to have the children’s and property matters running in the same Court. 

2. The husband also raised some other issue about some perceived conflict of the wife’s solicitor and the Department. The Court granted the husband additional time to file his material in response to him not having filed any material to date and gave him until 12 September 2016 with the husband assuring the court he would attend to filing his material by that time. As the orders of 5 September 2016 will reflect, the husband was put on notice that further failure on his part would result in the wife’s application for property being listed as undefended. 

3. The husband filed his material on 12 September 2016.  However, he did not serve sealed material until Wednesday, 14 September 2016. The parties were advised on the first return date that the interim application which was the issue most pressing as far as the wife was concerned would be listed and heard as soon as possible whether by another visiting judge or before myself in Cairns. This was due to the wife’s current accommodation coming to an end on 30 September 2016.  There was no time to hear that application on the first return date as the Court had other matters to go on with and, of course, there had been no material filed by the husband, so it was not possible to hear it if the Court was to grant further time for husband time to file his documents. 

4. An opportunity then arose to have this interim matter listed before me in Cairns by telephone and so on short notice, Wednesday, the 14 September 2016, the matter was listed for hearing on Thursday 15 September 2016. The husband has now filed his response, affidavit and financial statement and despite there being no consent from the Department with his application, the husband has sought orders in relation to the foster children as well as property. He seeks on both an interim and final basis orders that the children live with him, that he have sole parental responsibility, that they spend time with the wife as directed by the Secretary of the Department of Family and Community Services, that the Department intervene pursuant to section 91B of the Family Law Act, that the wife be psychiatrically assessed and then in relevance to this matter that the wife’s application for sole right to occupy the property be dismissed, that a settlement of the property be made on a 70/30 split in the respondent husband’s favour and that as an interim order seeking that upon settlement of sale of the property the balance remaining after expenses and payout of the mortgage be divided as to 30 per cent to the applicant and 40 per cent to the respondent with the remaining 30 per cent of the proceeds being held in a solicitor’s trust account pending final settlement of the matter.

5. I made it clear to the parties that in listing the matter for the interim application foreshadowed by the wife and included in her application as seen on the first return date,  that the Court would not be hearing any other applications, including the application to dismiss the children’s children’s matters in the urgent listing, I observed though that it is clear the Court did not have jurisdiction to make any orders in the children’s matter before the Court (the husband indicated he would be seeking the approval of the Department and urged the Court not to dismiss his children’s orders sought) and that the interim application  was listed on short notice and that was the matter that the Court would be hearing.  As of the date of this interim hearing and even today there is no written consent of the Department for a party to bring an applications seeking parenting orders about their foster children in the Federal Circuit Court. 

6. The husband asked, however, on the day of the interim hearing 15 September 2016, (this being the second opportunity, given that the matter has been reopened) – the husband asks that the children’s application not be dismissed and told the Court that he had been invited to a mediation with the Department about the children’s matters. It seemed he was hopeful of working something out with the wife and the Department regarding their much loved foster children. The husband has retained sole occupation of the former family home since separation. 

7. Prior to that, the family home has housed the wife, the husband and their three foster children.  The children at the time of this application are in the sole care of the wife and the husband tells me he is seeing the children for what he says is a very restrictive time, seemingly not overnight but at least several times a week for set periods during the day.  The parties have each read their material into the record as seen in the transcript. The husband seeks the wife’s application for sole occupation be dismissed but urges the Court to make an arrangement where the wife moves back into the former matrimonial with the children and himself. 

8. Today, I have had and admitted further material because the husband filed an application in a case yesterday requesting that it be heard urgently and that it be heard before the Court delivered its reasons in this matter. As the transcript will show, I have accepted the “urgent application in a case” seeking to re-open the interim hearing, in relation to sole occupation. In his submissions today, the husband told the Court that there was information that needed to be factored in by the Court and that there was information not revealed previously by the wife and that it is now clear from the material that the wife can live with her parents, whereas the submissions initially were that this was not possible and that they were old and frail and the husband says as well that it is now clear she has alternate accommodation available to her. 

9. The husband said today, that on the 15 September 2016 he only had an hour and a half to read the written submissions of the wife. The wife’s material had been filed long before that on 1 August 2016. The husband submits today also that he has reflected on his previous submissions and now submits that the Court would be falling into appealable error in having any regard to the fact of the children’s needs in regard to the children living with the wife. The husband submits that the Court does not have jurisdiction in relation to the children and he has explained to me that having no jurisdiction means that the Court cannot make orders about them. 

10. The husband emphasises that there are no parenting issues on foot; that the Court does not have the basic jurisdiction in relation to the children,  and, as I said, has explained more than once to the Court that “not having jurisdiction means that the Court cannot make orders about the children. The husband says that the housing of these children, (the three children who have lived with the parties since they were around a week old) given that they are foster children and it is painful for him to have to make such submissions, but the husband’s own words were, “as far as the Court is concerned and on a legal basis, these children don’t exist.” The husband submits that if the wife is to become homeless, then the children go back to the Minister. The Minister will make other arrangements for these children. 

11. The husband submits that as a matter of law, the Court has no jurisdiction in relation to these children. The husband referred to s 91B but, clearly, that wasn’t the relevant section and I understood him to mean the provisions referred to in s 69ZK, as he explained that the Court cannot make orders as set out in the Act until either the Department agrees or the only other orders are that they come into effect when the orders made by the Department expire. I have suggested to the husband that in taking into account the needs or the children as referred to in the authorities, the Court would not be making orders about the children, and that the provisions of s. 69ZK relating to Part VII of the Family Law Act and to children’s orders, not property proceedings or the type of application before the Court in seeking an order for sole occupation. The husband strongly submits this is not the case, the Court must essentially ignore the existence of these children of this family for all purposes. 

12. The husband also adds to his latest submissions that in terms of health, he is not in good health.  He has two grand mal seizures as set out in his material and, therefore, he is not in good health and he should not be thrown out onto the street. 

13. I have had regard to all of the material filed and the submissions of each of the parties.

The Law

1. In relation to this application for sole occupation, the legislation which each of the parties refer me to is section 114 of the Family Law Act. The relevant section has been referred to by each of the parties. Section 114 (1) reads:

   S.114(1) In proceedings of the kind referred to in paragraph € 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;

   € 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.

2. As to the submission of the husband, that the Court must ignore the existence of the children they have raised when considering the wife’s sole occupation application, in looking carefully at the description of s114 and specifically to the reference to in proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause:, and turning to the definition (s 4)  of matrimonial cause paragraph (e)

   matrimonial cause means:

   (a) proceedings between the parties to a marriage, or by the  parties, for:

   (i) a divorce order in relation to the marriage; or

   (ii) a decree of nullity of marriage; or

   (b) proceedings for a declaration as to the validity of:

   (i) a marriage; or

   (ii) a divorce; or

   (iii) the annulment of a marriage;

   by decree or otherwise; or

   (c)  proceedings between the parties to a marriage with respect of the maintenance of one of the parties to the marriage; or

   (caa) proceedings between:

   (i) a party to a marriage; and

   (ii) the bankruptcy trustee of a bankrupt party to the marriage;

   with respect to the maintenance of the first-mentioned party; or

   (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i) arising out of the marital relationship;

   (ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

   (iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or

   (cb) proceedings between:

   (i) a party to a marriage; and

   (ii) the bankruptcy trustee of a bankrupt party to the marriage;

   with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:

   (iii) arising out of the marital relationship; or

   (iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or

   (v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or

   (cc) (Omitted)

   (d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or

   (e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB).

   …

3. As I have said, the husband submits that the Court should have no regard to the interests (on a legal basis) of the children of the relationship and ought not to take into account in any way, the interests of children who are currently living with the wife. He submits that there is no child related proceedings on foot and that as foster children, there is no jurisdiction for the Court to make orders about children, and therefore the Court is precluded from factoring in the interests of the children currently living with the wife, who have been raised by the parties. 

4. Having looked at the power that I am exercising and the definition in Section 4 (1) of matrimonial causes and specifically paragraph (e) referred to above, and to section s 114, I am not satisfied that there is anything restricting my considerations to a particular class of children living with the mother, when considering the injunction sought and when referring to the authorities that require the Court to consider the needs of children, along with the needs of the parties. The Court was referred by both parties to cases such as Dees & Dees[5] in which it said when considering a sole occupation order that the Court “may take into account a wide variety of matters…. Among the relevant considerations in this matter should be the means and needs of the parties, the needs of the children of the relationship, general matters of convenience (broadly defined) and the converse aspect of “hardship”.  

   [5] [2010] FMCAfam 682.

5. It seems to me that the Court may make such order or grant such injunction as it considers proper when considering whether or not to make an order for sole occupation which is what this proceeding is. This interim application arises as part of the property proceedings on foot arising from the breakdown of a marriage. I am not exercising jurisdiction under Part VII in relation to children’s matters in regard to the injunction sought by the wife. I am well aware of the provisions of s 69ZK as the wife and the Court have raised them with the husband in terms of him including orders sought about children when replying to the property application of the wife. I do not regard making an injunction that involves a consideration of children who the wife is caring for and who have been treated by these parties as the children of their relationship, to be interpreted as restricting my considerations. It is not contested in any way that the children that are being cared for by the wife have been the children which these two parties have raised.

6. All of the cases which refer to issues, including Walker & Walker[6] including cases in Australia, Davis & Davis[7], all talk about the fact that children may be living or children may be being cared for by one of the parties.  There is no definition that requires me to restrictively read that down to being only biological children or children who the Court has jurisdiction over under Part V11 to make children’s orders. 

   [6] (1978)3 All E.R. 141.

   [7] (1976) FLC 90-062.

7. In looking at the case law, the wife refers me to the decision of Dees & Dees,[8] a decision of the Federal Court Justice Neville, who has relied on authorities which deal with sole occupation, including Davis & Davis, a Full Court decision of the Family Court of Evatt CJ and Pawley and Ellis JJ.  The authorities as I have said refer to the criteria for the exercise of the power that the Court may make such order as it thinks proper. The matters which should be included in the consideration include the means and needs of the parties, the needs of the children, hardship to either party or the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for expulsion from the home of the first party. 

   [8] (2010) FMCAfam 682.

8. The husband has referred me to a particular decision of a single judge of the Family Court, Watts J, in Kimberley & Kimberley[9] in which, his Honour also refers to the Full Court authority of Davis & Davis.  I have also had regard to the decision of Dean & Dean.[10]  At that time Watts J has stated, “it is a serious matter to turn out a spouse of their home” and, in the matter before him, the wife sought removal of the husband from the home and that she had the onus to establish a case for exclusion of the husband.  His Honour noted the decision in relation to exclusive occupation is not simply decided on the balance of convenience and noted that this one element of getting to a decision as to what order might be proper in the circumstances of an individual case. 

   [9] (2011) FamCA 406.

   [10] (1977) FLC 213.

9. In looking at the background to these parties and this matter, at the time the parties commenced seeing each other, the wife had completed some (omitted) studies and was working as a (occupation omitted) and studying for her (qualifications omitted). The husband was a full-time student at (omitted). 

10. The husband established his own firm as the sole practitioner, which he continues to conduct, in around 2004.  The parties were married in (omitted) 2004. They separated on 16 February 2016. The wife set out their working history from meeting in early 2000 when the wife worked as a full-time (occupation omitted), having already completed an (omitted) degree in (course omitted). 

11. The husband, at that time, worked during the marriage in his practice, with the wife not working as a lawyer but, rather, doing secretarial work, it seems, or managing the trust account, office accounts, Legal Aid applications, drafting documents, though there is dispute between the husband and wife as to what it is that she was doing.  The wife has set out the acquisition of their first home and assets; and matters that go to her contributions pursuant to section 79(4), being both financial and non-financial; the circumstances of the husband establishing his own practice; her fulltime work in the practice until 2010 when they had E placed in their care, S being placed in their care in 2012, and March 2013 when R was placed with the husband and the wife in foster care. 

12. The wife worked part time with the introduction of the children into their family. The wife has deposed that each of the children have additional or special needs. ‘E’ has a kidney disease, with one kidney functioning at 65 per cent of the time and the other 35 per cent, and suffers also from a neurological disorder which affects his speech and fine and gross motor skills and his ability to eat and chew.  Additionally, in June 2016, he has been diagnosed with ADHD and may require medication for this. The paediatrician, it seems, is deferring this decision as the child is thin and is a very poor eater. ‘S’ has been diagnosed with an intellectual disability, severe speech and receptive language disorder and low tone which affects her dramatically in all areas of her daily life, such as eating, moving around safely.  ‘S’ is said to be five years old though functions at the level of a three year old.  The wife goes on to describe that ‘R’ has a diagnosis of global development delay which means she is behind in at least three areas of her development. The wife deposes that all three children require a greater level of care than most children. 

1. The wife has set out the various interventions from professionals that each of the children have each week at paragraph 74 onwards, which is quite intensive, with ‘E’ having speech therapy weekly, ‘S’ having OT therapy weekly and is about to start speech therapy and attends learning support class to help with her transition to school next year.  ‘R’ attends SIEP weekly and has regular assistance from a speech therapist and physiotherapist. 

2. The wife explains that both girls qualify for funding under the transitional provisions of the national disability scheme. These facts and descriptions are not denied by the husband. The wife has also deposed to her having the primary responsibility for all care of the children.  She alleges that the husband considered that daily care of the children was her responsibility and he generally did not help with the routines. 

3. The husband says in his affidavit, that he finds the wife’s description of the children in her affidavit, at paragraph 60, which is “all three of our children are foster children, although I consider them as my own” as demeaning and offensive. He says, “I have repeatedly asked the applicant not to refer to our children in that manner and yet she continues to do so.” 

4. The husband denies that the wife did all the housework, cooking, washing and cleaning, and says that there was a period of time when he did the majority of the household tasks and that was after he suffered his first grand mal seizure. This is referred to at paragraph 79 of the husband’s affidavit in the sentence, “The next major shock for the applicant was the events of 9 October (2015) when I suffered my first grand mal seizure.” The husband has spent much time in his affidavit material in a property matter, explaining his work as a solicitor and, in particular, in explaining that he assisted and, it seems, acted for the wife with a damages claim which arose through the wife’s personal injury from a malicious prosecution, wrongful arrest and personal injury, all which seems to have occurred in 1996, about 20 years ago. 

5. The proceedings ran from 2002 to 2007.  The husband has annexed and referred to and commented upon and given his opinion about the wife’s medico-legal reports seemingly originating from her legal file, some of which are annexed to his material.  I am not aware if the release of the wife’s documents from her earlier litigation has been done by the husband, her lawyer, with the prior consent of the wife. The husband has purported to give his opinions about the wife’s medico-legal reports and has given commentary and opinion about the wife’s distress during those times and sets out his lay opinion about a condition that she now suffers. 

6. The husband has set out the wife’s failings in not losing weight in order to become pregnant despite him having told her to do so and says that her work on the tax returns were so bad he had to redo them himself at night.  He says that what the wife says she did in the practice is not true and that the wife had a practicing certificate but would not do any work of a fee-earning nature. The husband alleges the wife’s income in her statement of the financial circumstances was untrue and said, at his paragraph 162(m) and, again, in his submissions, “That the applicant’s true weekly income is $2,122 and not $1,172 that the applicant has sworn.” 

7. The wife advised during submissions on questioning that the sum of money referred to by the husband is not income as alleged by the husband, but, rather, a non-taxable allowance paid to her by the Department specifically for use for the day to day costs in raising  their foster children. The husband alleges alienation of the children at paragraph 47 of his affidavit, and sets out that the prelude to the parties seeking to offer a home for and fostering these children was his idea after the parties had undergone IVF which he had paid for and says that they both wanted children but, “The applicant could not get pregnant.” 

8. An incident occurred on 9 October 2015 which the husband sets out at his paragraph 79, saying, “The next major shock for the wife was the events on 9 October last year, 2015, when I suffered my first grand mal seizure.”  The wife explains this also in her affidavit at paragraphs 104 through to 144 in a series of fully particularised, comprehensive and chronological series of events that occurred on 9 October 2015 and after that date. 

9. She deposes that on 9 October she was working in the office with the husband, that at the end of the day they left the office in their separate cars.  She stopped at the shop and on her way home saw the husband’s car on the side of the road with the hazard lights on and, on approaching the car, she saw him slumped over the steering wheel.  He had blood pouring out of his mouth.  He was unconscious and he was a strange colour of grey.  An ambulance was called and they went to the hospital together, says the wife.  Tests were carried out:  EEG and ECG and CT scan and blood tests and ultrasound and after about four hours, Mr Dunlop regained consciousness and was less confused so that the doctors were able to ask him some questions. The husband told the doctors he had been drinking at least two bottles of wine every day and that he would start drinking at lunchtime each day, as set out in paragraph 119.  The wife, I think, was working two days a week, and she says that the husband told the doctor that on the days the wife worked with him he started drinking at 3 pm, which is when she left to pick up the children from pre-school.  The wife says that the husband told the doctor he drank two and a half bottles of wine that day before the seizure at the office, and then came home and drank another bottle.

10. The wife deposes that the doctors advised the husband that the seizure he had was as a result of his high level of drinking and the seizure was the body’s response to him drinking that day. The wife says the husband was remorseful for his drinking and the doctors said he would be admitted for seven days to detox him under medical supervision, that the husband remained in hospital for that time and was given Valium to reduce the chance of further seizures while he was detoxing. 

11. A referral was made to a Dr A.  The wife deposes that after seven days the husband started drinking again. They both went to the appointment with Dr A at the (omitted) on 17 November 2017 and Dr A agreed with the assessment of the doctors at the (omitted) Hospital that the seizure was most likely caused by the husband’s drinking. Dr A wished to do a sleep deprived EEG and arrangements were made for the husband and wife to travel back to the (omitted) the following week. 

12. The preparation required him staying awake from midnight until 3 am, then sleeping for half an hour, then being woken and staying awake until the test was conducted at 9 am on the (omitted). The wife deposes that the appointment was cancelled after the husband had been drinking every day until the day before the appointment and after the wife then rang the surgery of Dr A and explained that he had been drinking and was told that the test could not go ahead due to the drinking. 

13. The wife says the night before, as with other nights, the husband did not come home until the early hours of the morning. The test was rescheduled for the following week. However, the husband did not stop drinking, and that test was cancelled as well.  To the wife’s knowledge, the husband has not had that test.

14. The husband’s response in his affidavit to this detailed explanation of events, particularised as it is, was to say that the “applicant was obviously shocked by what she saw that day. The applicant’s description of me at paras 110, 112, 113 and 114 show that the applicant was, as is, anxious and confused about what she saw.”

15. There are no specific denials or clarifications of the wife’s testimony attempted by the husband. It is difficult to accept that the wife is confused, given her very specific detail and recall set out in the affidavit, coupled with the very specific lack of denials or clarifications by the husband to the wife’s testimony, when the husband has had every opportunity to do so. 

16. The wife explained that after the first incident in October 2015 that this highlighted to the wife, and revealed to her, the extent of the husband’s drinking and that he became very angry and abusive, and became very forgetful.  On 23 November 2015 she deposes that the husband told her he did not want her back in the office and if she attempted to come in, he would change the locks. The husband, in casting through his material, says:

    “The applicant stopped speaking to me in November 2015 and to this day has not had a civil conversation with me about any matter.”

17. The wife sets out specific details of verbal abuse on a daily basis, criticisms of her that she was a bad wife, that the home they lived in was filthy, that she was an idiot, that she couldn’t even grocery shop, that no one would want her, that she was just bludging off him, that he wanted her to leave.  He made allegations about her sleeping with other men and made demeaning remarks about her ability and her intelligence. 

18. On 27 November 2015, the wife says the husband sent an email and told her that the best thing she could do was to move out with the children as soon as possible.  When he came home from work, the wife says he yelled at her, “Did you get my email?” And told the wife he wanted her and the kids out before Christmas. The wife says she said why should she move out with the children, why shouldn’t he move out?  And he said, “No, it’s my house.  I’m not going anywhere.” 

19. The wife also set out evidence that after he told her to leave the house with the children, she started to make arrangements to leave. She secured some employment with a (employer omitted) and that the husband did not come home most nights until the early hours of the morning, between the period when the email telling her to move out was received and when she and the children moved out in February 2016. 

20. As to the occasions (about six) when the husband did come home, the wife said that the husband yelled at her that the dinner was slop; that on another occasion he yelled at her, “You’re a fucking idiot. You can’t even buy tomatoes when you go shopping.  You’re fucking stupid.”  The wife also deposes that when the Christmas break arrived during the husband’s office closure, whilst they were still living together but after the wife had been told to leave and the wife was looking to move out –the husband would go and buy wine at lunch time every day – usually three bottles – sit in the pool area and drink. He would sometimes come inside when it got dark and he would sometimes sleep out there until the early hours of the morning.  The wife says:

    “I did my best for the children and I tried to stay out of his way.” 

21. When the husband started drinking in the afternoon, the wife says that she would pack up the children and “we would have baths and dinner at my parent’s home.  I would return home and put the children in their own beds.” She said she did her best for the children and herself to stay out of the way of the husband. 

22. The wife has deposed to the husband smashing every wine glass in the house, saying he would drink until he was drunk and then knock the glass over on the tiles. She said the husband did not clean up but simply left the smashed glass and wine for the wife to clean up.  She says that the husband commenced filling up the children’s plastic water bottles with wine and drinking from them. The wife has sought assistance from the husband’s siblings, asking for help. 

23. On 29 December, the wife says this was a critical incident.  It involves her evidence of the husband’s further excessive drinking and abuse, all playing out in the family home when the children were at home.  It is all set out, particularly at paragraph 176 onwards. Essentially, the wife says:

    “The day started badly, with the husband getting up and yelling and screaming that the wife was dirty, and bad housekeeper, and the fridge was disgusting.  The husband went to the fridge and freezer, screaming about the food in it, and commenced throwing food into plastic bags.  The husband got into his car, taking two bottles of wine out of the fridge with him.  The mother cleaned up.  She took the children to her parent’s for dinner. When she returned home to put the children to bed at 6 pm, the husband returned home an hour later.” 

24. She then set out at paragraph 181 through 195 precisely what happened.  The husband returns home essentially, screaming he was sick of living in filth, calling the wife a fucking idiot then commenced picking up items the wife had packed for a picnic the following day – towels, swimmers, a bag, handbag, papers on the bench, mail, notes, her iPad – and, while screaming insults – such as, “You’re a moron” –He said, “You are stupid.  I’m sick of you. Just get out. Why haven’t you gone already?”  And he threw all of these items around the house. The wife tried to ring the police and the husband pushed the phone button to terminate the call.  The wife phoned again. 

25. The husband, she says, during the call, took another bottle of wine from the fridge and left.  The police sent someone around.  The wife took photos and has annexed them to her affidavit material, showing the chaos and mess with things strewn throughout the house.  The wife advised that having spoken to the police, they subsequently apprehended the husband. 

26. He failed a roadside breath test, was taken to the police station, and charged with a mid-range offence in relation to drink driving. They said they would detain him at the station until he sobered up and would not let him return until the next day. 

27. On 7 January 2016, the wife says she went to the husband’s office to do some internet banking and found the rubbish bin overflowing with empty wine bottles and bottles hidden in the husband’s drawer and filing cabinet. The wife has annexed photos to her affidavit filed 1 August 2016 (annexure B) of those multiple empty bottles of wine, including a photograph of the filing cabinet with the bottle of wine in it. 

28. Each of the parties have referred me to the relevant case law, as I have said which I have inserted into these reasons and the considerations that I need to have.

29. In respect of the means and needs of the parties, the wife submits that she is the primary figure providing housing and shelter for the children she and the husband have raised and who remain in her care.  As I have said, they are three foster children, who have been with these parties and regarded as their children since a week or so or not long after their respective births. 

30. The children unfortunately each have additional special needs. The husband has only himself to look after in terms of accommodation that he requires.  He retains the legal practice that each of the parties have worked in during the marriage. As to the income of the parties, that is set out in their respective financial statements.  The wife has a modest income of $300 per week the balance of the income is related to family allowance - a parenting payment of $872. The wife has an average weekly income of $1,172 and her outgoings are $1,850. She accepts that she receives an allowance from the Department (it is not taxable or income) in relation to the upkeep of the children and says it is paid to her for the costs in raising all three of them.  The wife has been paying $490 per week rental for a property for herself and the children since she left the former matrimonial home.

31. The husband has set out his income, on his statement of financial circumstances, and says he operates as a sole practitioner and that the way he has always operated is as set out in his material, with a total weekly income of $2,400, and a total personal expenditure of $2,200. This however, is not just personal expenditure as explained by the husband, by it is his entire expenditure including the weekly costs associated in running his legal practice. That would therefore include tax deductible expenses.  The husband stresses that he is a sole trader and this is the way he has always operated. I have had regard to the income of the parties, and I have had regard to the fact that the wife receives an amount of money as an allowance in relation to the costs associated with raising the children. 

32. I also note that there was no child support assessment and that the husband has not set out that he is paying any child support.  And, of course, he isn’t the biological father and that is very unlikely to occur in the current circumstances.

33. The wife has brought her application for sole occupation, and that the husband leave the home, on the basis that she has been in rental accommodation since she has organised it, post separation, and that is no longer available, and that she has to move out of that by the date indicated. The wife wishes, importantly, to retain the former matrimonial home as part of the property settlement. 

34. The wife wishes to reoccupy the former matrimonial home with the children, and, thus, save another interim move for herself and the three children, before hopefully moving back into the matrimonial home, upon the property settlement.  I accept that the consideration of the wife, as a primary carer for these three children, and providing for the children their emotional support, is a valid position in terms of seeking to secure stable and ongoing accommodation for these children and to do so in a home with which they are familiar. 

35. The wife is totally opposed to the husband’s suggestion that the parties move back into the home, with the husband also occupying the residence as is strongly submitted by the husband. The husband submits that the wife should move back in with him, they all live together, and that the parties should sell the house. 

36. The husband says it will sell very quickly and take only about a week.  There is no evidence of that before the Court. The husband seeks an interim distribution, as I said 30 per cent to the wife and 40 per cent to him.  30 per cent to be held in trust. 

37. The husband has said that unequivocally he wishes to sell the home and sought to have interim orders made at the commencement of the hearing on 15 September 2016 in relation to sole occupation. The husband told me at the commencement of the hearing that it was in order for the court to make orders by consent, given that he agreed with orders 1, 2 and 3 of the orders being sought by the wife and, therefore, the court could make those orders now. On looking at those orders, however, that submission was somewhat at odds with what the husband well knew, as I reminded him, that on the first return date in Brisbane and during the discussions regarding his desire to sell the house that the solicitor for the wife had indicated that the wife would be seeking to amend her application as she wished to have the opportunity to retain the house.

38. The solicitor for the wife indicated that she would be filing an amended application.  As I reminded the husband, I did not make an order for a date for that to be filed but rather focused on the issue of the interim application for sole occupation and, as can be seen in the orders made on 5 September 2016, I indicated that the court would facilitate an interim hearing about sole occupation by a Judge not conflicted.  Only seven working days had transpired since the initial court appearance before the matter being allocated a hearing date of 15 September 2016.

39. So the submission by the husband that the wife has not amended her application and because of that she is therefore bound to the documents that she has filed and read and urging the court to make orders by consent for the sale of the former matrimonial home, is completely at odds with the stated position of the wife and the understanding of the Court, given her indications that she wishes to try and retain the home.  It is also at odds with the wife’s position stated on that day in the presence of the husband and is expressed in her case outline. 

1. In looking then also to the needs of the children, as can be seen by the evidence, there are three children who have been raised by these parents. They are being raised by the wife and husband during their marriage in a foster care arrangement.  It is significant that each of the children have various additional and special needs, including both physical and intellectual.  These issues affect their functioning and the care of the children is intensive and the assistance of professionals is required.  The wife explained that she was told to leave the house with the children and she was told not to return to the practice and before she could physically do so the husband’s excessive drinking reached a point where he was overtly angry, under the influence of alcohol, abusive and causing scenes and yelling at night when the children were present.

2. The wife has provided, as I have said, particularised commentary regarding the husband having been out all day drinking coming home and causing chaos. The wife has provided photograph of the chaos.  The husband has not taken the opportunity to set out his own version of events in relation to the particularised evidence.  He has chosen instead to say broadly that the wife has made false and malicious allegations about his drinking and, further, he says at paragraph 94:

   “I admit that my behaviour from 15 September to 16 February was difficult but I now realise, having read the applicant’s affidavit of 29 July 2016 that I simply wasn’t coping with a person with post-traumatic stress disorder, PTSD.”

3. It is, in essence, a global concession of having difficult behaviour.  The husband has submitted that if the court wants an undertaking that he will not consume alcohol then he will give it and, on that basis, he sees no reason why the parties cannot cohabit the former matrimonial home. 

4. Whilst all of the specific allegations will be determined at a final hearing, it seems, on each party’s version of events, there is much discord and disharmony. The photographic evidence and specific evidence of the wife has not been specifically responded to or addressed by the husband when he had a chance to do so.  He has chosen not to.  Instead there is a concession of the husband that he has been difficult and alleging he realises now he has been dealing with someone with PTSD (going back to the 1996 events) and noting that he has had two seizures but again not explaining any more than that except to say now because he has had a seizure he now does not drink.  This is all somewhat unsatisfactory.

5. The wife particularly alleges that the initial seizure was said to be because of excessive alcohol whereas the husband says he has two seizures and, as a result of that, and given the wife’s evidence, again not contradicted, that he has behaved in a difficult manner.  It seems to me that certainly on the wife’s case the husband’s behaviour is seen by her in her presence and the children as being intimidating and out of control type of behaviour and erratic.  For the wife and any children in the home, no doubt very distressing, fearful and alarming.

6. The Orders sought by the husband, and which he strongly presses for the  wife  and children to move back in to the matrimonial home with him in my view is not sustainable.  To make an order providing that the wife move back into that home in my view would simply lead to further discord and likely distress. 

7. The husband’s position in saying that he will give an undertaking not to drink is not the answer.  If the husband has had the difficulties and excessive alcohol as deposed to by the wife or at all, such a dependence or drinking pattern is not addressed or solved by simply having the husband offering up an undertaking to a court not to drink.  If it were that easy there would be no need for any agencies such as AA or ATODS to deal with alcohol dependency for the support of those having addictions.  Human experience tells me that an undertaking is not going to resolve an issue of alcohol abuse… if only it were so.  The husband seems to underestimate the gravity of the situation. The alleged conflict that has been occurring in the home has resulted in the wife calling the police for assistance, and, again, this is not denied, and it simply confirms to me that the husband’s proposal for the wife and children to all move back into the house, (which the husband submits is not a backdoor method of him trying to get reconciliation happening) with his family, in my view, would lead to an intolerable position for the wife and children and possibly expose them to further conflict and subsequent distress caused by that.

8. Whilst asking the wife and children to move back in, the husband in seeking orders for the children has filed an application seeking the intervention of the Department in relation to the children, a step only taken when children are at imminent risk.  As I have said, there is much discord between the parties.

9. The wife has deposed to the husband’s conduct since she moved out with the children, as the husband told her to do. She deposes that now the husband is not as angry but is crying and depressed and has told her that he did not think she would leave and he did not want her and the children to leave.  It seems to me that these children need to be in a peaceful home and not in a home where there is any possibility of a parent being out of control and intimidating or abusive,  for any reason, including excessive alcohol use and being abusive and demeaning.

10. These children as well, have special and particular needs. I consider it particularly important that these children, who have already been removed from their own biological parents, have the opportunity to live in a peaceful and stable home secure in the knowledge that they will not be exposed to what would fit under the broad definition under the Family Law Act, certainly, of family violence of any kind.  The wife has significant obligations in relation to her care of the children and has put in significant personal effort in relation to her parenting for years in accommodating the special needs and their conditions which include some intellectual impairment.

11. No doubt the husband has done as much parenting as he could whilst working full time as a lawyer. Nonetheless the wife having the care of their three children as their primary carer is an important factor in considering the wife’s application to resume living with the children in their former home. So too is the husband’s unacceptable conduct as referred to by the wife and very carefully not expressly addressed or denied by the husband when he has had every opportunity to do so. 

12. The husband has made much in his submission that the wife moved out with the children and he thinks the wife made the children keep secrets from him and that this would have caused the children psychological harm.  This submission is based on the husband seeing the children on the day they left, bumping into the wife and children at a shopping centre with him saying to them, “See you later” or “See you at home” and he saw their son looking at him with a sad look and the husband speculates that the children have become withdrawn because of the secrecy and actions of the wife.

13. The husband has not denied that he told the wife to move out.  The husband submits that her move out of the home was not impulsive; it was calculated and deliberate.  He does not, as I have said, however, deny that he told the wife to leave the home with the children and to get out on a later occasion. The wife moved out when she said the husband’s behaviour was escalating and making the day-to-day care of the children more difficult and it became somewhat intolerable in trying to shield them from what was going on in the house.  She was moving them away from the husband’s conduct.  Clearly the children would be at risk of further distress in such an environment.  The wife and children, having been told to leave the home, now find that their rental accommodation has come to an end. 

14. There is no doubt that the wife wishes to retain the matrimonial home and that being so that it would be less arduous for her and less unsettling for the children and her as their carer of the children did not have to move and keep moving into different other rental accommodation and homes and then moving into the former matrimonial home upon the final property settlement.  Any rental has uncertainty about it and, as the wife has experienced, leases come to an end and the tenure is much less stable than living in the former matrimonial home. 

15. I consider that the application of the wife moving back into the former matrimonial home with the children as opposed to her remaining in more rental accommodation has much more stability and less disruption and distress for the children in their day-to-day lives. Their home is familiar to them and they require quite intensive specialist support and generally having secure, stable accommodation as soon as it can be organised for the period between then and the settlement of property application is an important consideration and one which I give weight to. 

16. I am aware that the husband’s submission is that the court now knows that the wife has alternate accommodation whereas she said before  (on 15 September) she did not wish to live with her parents and the husband submits that she has now admitted that she has to do so. I also, accept the submission of Ms McVittie the wife doesn’t depose to the fact that she is going to live with her parents permanently.  She says that if she can’t find rental accommodation that she will have to live with them until she finds further accommodation. 

17. In relation to the whole application to reopen of this matter by the husband, on the basis that the husband has just found out that the wife has other accommodation and this was not previously made clear to the court, it is clear to me that when the wife’s solicitor wrote asking the court as to when the judgment might be handed down, that the husband has seized on that opportunity to allege and submit to the court, that the court must infer that the wife and children are going to be homeless after their holiday rental runs out. I make no such inference.

18. For any inference to be drawn there has to be some basis of fact.  There are no facts that suggest to me, the wife is going to be homeless.  The only person who has spoken about the children or wife being homeless is the husband.  He has also referred to himself being homeless if he has to move out of the former matrimonial home.  There is no evidence of either.

19. The wife has said that she will have to find other rental accommodation.  She has indicated in her material that she started to make inquiries as soon as the husband told her to move out. 

20. The wife, of course, has to find appropriate accommodation for four people; whereas the husband has to find accommodation for one person.  I have had regard to the fact that the wife says that she may have to stay with her parents, not live with them, until she finds other more permanent accommodation, in the event that either there is a further delay in the reasons and/or she doesn’t succeed in with her application for sole occupation.  

21. The husband has said to me that if he cannot live in the former matrimonial home he will be homeless and living in a caravan.  There is no evidence to support this submission. When the husband made the  submission, the husband, having made it, then would not concede that if he would be homeless then so, too, would the wife saying to the court that, “No, that’s not so because the wife can move back in with him.” 

22. On 15 September 2016 the husband made submissions that the children can’t be left homeless and they must all move back into the former matrimonial home.  He nonetheless also insists that the way forward is to sell the home without delay, says it will happen within a week, and generally makes no allowance for the fact that the wife wishes to retain the home.

23. There is no evidence, as I said, of the house being able to be sold within the week.  The husband says that the wife can move in with her parents. The husband himself then alleges that the parents are elderly and in poor health at paragraph (164 and 167 of his affidavit filed on 12 September).  The husband says, though, that she can move in with her parents.  Given that the wife has the care of three children and herself, I consider that this would be an unnecessary impost on the wife and the children to have to live as houseguests in somebody else’s home for an indefinite period up until the property settlement in temporary circumstances until some unknown time in the future when the property settlement occurs.

24. It does not seem to be a practical solution, even if the wife’s parents agreed. At this point, the husband has sole control over the legal practice that has brought in the income for the support of the family.  The husband alone occupies the former matrimonial home, presumably with its empty bedrooms.  The wife found rental accommodation.  She said it took her a while to find something suitable for these children – three of them.  The wife is the person who wishes to retain the former matrimonial home.  The husband does not.

25. The wife deposes that he is not keeping the home in good order, and again there are photographs. The husband doesn’t deny those allegations but instead minimises the submissions saying that the issues referred to by the wife can easily be remedied.  The wife has a vested interest in keeping the home in a good condition given she wishes to retain it. I am satisfied, noting the rental payment by the wife in the past that she has the means to pay the regular mortgage repayments on the former matrimonial home which she says she will do if she moves back into the home.

26. The husband says he has had two grand-mal seizures and, for that reason, his health is not good and that is another reason why he ought not to be removed from the home.  I am not satisfied that any particular home is any different for the husband in terms of him suffering his seizures. The husband admits to the seizures, but does not deny or admit the evidence of the wife as to the cause.

27. In looking at the matter generally, I am satisfied that there has been intense disharmony between the parties that the proposal that the wife return to the matrimonial home with him and the children is untenable and impracticable at every level and could likely expose the children and wife to even more disharmony, frightening conduct and distress.

28. Having considered all of the evidence before the court, I am satisfied that circumstances exist where it is appropriate that the court exercise its discretion to order that the wife have sole and exclusive use of the former matrimonial home until the property proceedings are finalised and that the husband not occupy the home. I intend to make accordingly noting that the sole occupation will include an order that the wife is responsible for the payment of the mortgage, rates and utilities, as submitted in the wife’s draft Order. The husband will have until Monday 24^th October 2016 to vacate the home.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 12 October 2016