KEYNES & KEYNES

Case •

[2014] FCCA 1453

•

12 June 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEYNES & KEYNES [2014] FCCA 1453

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the children – parties have two young sons.

EXCLUSION OCCUPATION – Where mother and children moved out of matrimonial home – where mother seeks order that the father should vacate the matrimonial home – means and needs considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 114
Cases cited:
In the Marriage of K. & P. Davis (1982) 8 Fam LR 975
In the Marriage of R.B & J.M Davis (1976) 11 ALR 445; 1 Fam LR 11,522; FLC 90-062
Dean & Dean (1977) FLC 90-213
Fedele & Fedele (1986) 10 Fam LR 1069; FLC 91-744
In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90-442
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In the Marriage of Harris (1980) 5 Fam LR 852; FLC 90-812
Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436; 8 Fam LR 777; FLC 91-303
In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90-896
Page & Page (1981) 6 Fam LR 669; FLC 91-025
S & S [2002] FamCA 59
Applicant: MS KEYNES
Respondent: MR KEYNES
File Number: SYC 1742 of 2014
Judgment of: Judge Scarlett
Hearing date: 27 May 2014
Date of Last Submission: 27 May 2014
Delivered at: Sydney
Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: Mr Greenaway
Solicitors for the Applicant: Shephard & Shephard
Counsel for the Respondent: Mr Watkins
Solicitors for the Respondent: GA Lawyers

ORDERS

  1. The Applicant Mother is to be entitled to occupy, to the exclusion of the Respondent Father, the property situated at and known as [omitted] in the State of New South Wales and the Respondent Father is to vacate the said property within two (2) months of the date of these Orders.

UNTIL FURTHER ORDER

  1. The Applicant and the Respondent are to have equal shared parental; responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009.

  2. The children [X] and [Y] are to live with the Applicant Mother.   

  3. The children [X] and [Y] are to spend time with the Respondent Father as follows:

    (a)During school terms from immediately after school on the Monday afternoon until the commencement of school on the Thursday morning in each week; and

    (b)For the first half of the short school holidays in 2014 and all even-numbered years thereafter and the second half of the short school holidays in 2015 and all odd-numbered years thereafter; and

    (c)For half of the Christmas/January school holidays in each year on a week-about basis;

    (d)From 9:00 am on Christmas Eve until 1:00pm on Christmas Day in 2014 and all even-numbered years thereafter and from 1:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd-numbered years thereafter;

    (e)From 5:00pm on the Saturday prior to Father’s Day until the commencement of school on the Monday morning after immediately after Father’s Day;

    (f)On each of the children’s birthdays from immediately after school until the commencement of school the following day if the birthday should fall on a school day when the child concerned would not otherwise be spending time with the Father in accordance with these Orders and from 11:00am until 2:00pm if the birthday should fall on a weekend; and

    (g)On the Father’s birthday from immediately after school until the commencement of school the following day if the birthday should fall on a day when the children would not otherwise be spending time with the Father.

  4. Changeover between the parents is to take place at the children’s school at all times when the Father’s time commences immediately after school and concludes at the commencement of school and at other times the Father is to collect the children from the Mother’s place of residence at the commencement of his time with the children and the Mother is to collect the children from the Father’s place of residence at the conclusion of his time with the children.

  5. The Father’s time with the children for the first half of the short school holidays in 2014 and all even-numbered years thereafter is to commence immediately after school on the last day of the school term and is to conclude at 5:00pm on the middle Saturday of the school holidays at which time the Father is to return the children to the Mother at her place of residence or where she may otherwise direct.

  6. The Father’s time with the children for the second half of the short school holidays in 2015 and all odd-numbered years thereafter is to commence at 5:00pm on the middle Saturday of the school holidays and is to conclude at 5:00pm on day before the children are required to attend school for the commencement of the next school term and for this purpose the Father is to collect the children from the Mother’s place of residence at the commencement of his time with the children and the Mother is to collect the children from the Father’s place of residence at the conclusion of the time.

  7. Each parent is permitted to speak to the children or either of them by telephone between 5:00pm and 5:30pm on any day when the children are in the care of the other parent and for this purpose the parent wishing to speak to the children is to telephone the mobile telephone of the other parent.

  8. Both parents are restrained from using any physical discipline on either of the children.

  9. Each parent must inform the other of any illness or injury sustained by either one of the children whilst that child is in their care in accordance with these Orders within a reasonable time and if the illness or injury requires hospitalisation or treatment by a medical practitioner the parent must inform the other parent of the name and address of the hospital or medical practitioner.

  10. The parents are restrained from making critical or derogatory remarks about the other parent or members of the other parent’s immediate family in the presence or hearing of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1742 of 2014

MS KEYNES

Applicant

And

MR KEYNES

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Mother of two children, aged 6 (nearly 7) and 5 years for interim parenting orders and for an order that she should have exclusive occupation of the former matrimonial home.

  2. The parties have two sons:

    a)[X], who was born on [omitted] 2008; and

    b)[Y], who was born on [omitted] 2009.

  3. An application for an interim order for spousal maintenance was not pressed.

  4. The Respondent Father sought interim orders, initially, that the children should spend time with him from after school or child care on Fridays until 6:30pm, from 2:30pm on Saturday until 6:30pm on Sunday, alternate weeks with the child [Y] from 3:00pm on Tuesday until 6:30pm on Wednesday, and with the child [X] from after school on Tuesday until 6:30pm on Wednesday.[1]

    [1] Husband’s Case Outline Document 27 May 2014

  5. However, after the hearing, as agreed, counsel for the Father, Mr Watkins forwarded a minute to the Mother’s solicitors and to the Court setting out a substantially revised proposal for time during the school term, being:

    Husband’s proposed Minute regarding school term time.

    1.  That during school term, the children live with the father:

    a.  Each week from Monday after school and/or day care until Thursday before school

    b   Each alternate Saturday from 2.30 pm until Sunday 6.30 pm

    2.  That the children otherwise live with the mother.

  6. The Father opposed the application for exclusive occupation of the former matrimonial home.

  7. In summary, the issues between the parties at the interim hearing were:

    a)What arrangements should be made for the children to spend time with the Father during the school term; and

    b)Whether the Father should vacate the former matrimonial home, from which the Mother had moved out, so that the Mother could have exclusive occupation of the home.

  8. The parties were in agreement that the school holidays should be shared equally between them. They were also in agreement that they should have equal shared parental responsibility for the children.

The Hearing

  1. The hearing was conducted as an interim hearing, a procedure that has been described by the Full Court of the Family Court in Goode & Goode[2] at [68] as a “truncated” procedure where, if facts are disputed, the Court will be unable to make conclusive findings of fact due to the necessarily truncated nature of the proceedings and the inability to test the parties’ evidence by way of cross-examination.

    [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

  2. There was a difficulty in that, whilst I made orders on 12th June 2014, I was unable to deliver oral reasons for the decision because of an illness. I indicated to the parties’ solicitors that I would provide short written reasons on a later occasion.

Background

  1. The Mother was born on [omitted] 1978. She is now 36 years old.

  2. The Father was born on [omitted] 1982. He is almost 32 years old.

  3. In 1997, the Mother purchased in her name the house which was to become the matrimonial home.

  4. On 18th February the Mother and Father separated under the one roof.

  5. The Father lodged a caveat against the title of the former matrimonial home.

  6. After an altercation between the parties on 6th March, the Mother moved out of the former matrimonial home with the children the following day, 7th March. She commenced to live with her parents in their home.

  7. The Father commenced spending time with the children on three occasions each week for two to three hours at a time, initially in the presence of the Mother and later without her being present. [3] This arrangement changed to overnight block contact on 17th April.

    [3] Outline of Case Document of the Applicant Mother page 3

  8. The Mother claims that the Father changed all the locks on the former matrimonial home on 13th March.

  9. The following day the Mother’s solicitors wrote to the Father, requesting that he vacate the former matrimonial home.

  10. On 26th March 2014 the Mother commenced proceedings in this Court.

  11. The Father filed a Response and supporting documents on 17th April. That same day the Mother filed an Amended Application in which she sought an order restraining the parties from physically disciplining the children.

  12. On 23rd April 2014 the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. In that document the Mother claimed that the Father had on occasions used excessive force to discipline the children. She also claimed that the Father had assaulted her and threatened her.

  13. The Mother’s Application was returnable before the Court on 28th April 2014. On that date, the parties were directed to attend a Child Dispute Conference with a Family Consultant and the Application was listed for an interim hearing on 27th May 2014.

  14. The parties attended the Child Dispute Conference on 16th May 2014.

Evidence and Submissions

  1. In his Outline of Case Document, Counsel for the Mother, Mr Greenaway, stated that the Mother relied on the following documents:

    a)Her Amended Application filed on 17th April 2014;

    b)Her affidavit sworn on 21st May 2014; and

    c)Her Financial Statement filed on 26th March 2014

  2. Mr Greenaway advised the Court that he was relying on the following decisions:

    a)Plowman v Plowman[4];

    b)Fedele & Fedele[5]; and

    c)S & S[6].

    [4] (1970) 16 FLR 447

    [5] (1986) 10 Fam LR 1069; FLC 91-744

    [6] [2002] FamCA 59

  3. It was submitted on behalf of the Mother that, following a period of frequent arguments and then an incident, a major altercation, on 6th March 2014, which the Mother claims included physical violence on the part of the Father, the Mother left the home with the children and has not resided there since.

  4. Mr Greenaway submitted that, in incidents leading up to the parties’ separation, the Father had:

    a)recorded the parties’ conversations;

    b)frequently taunted the Mother in relation to anxiety attacks from which she has suffered from time to time;

    c)was physically violent towards her; and

    d)physically disciplined the children with such force that marks and bruises were occasioned.

  5. He submitted that, as a result, the Mother was not able to continue living under the same roof as the father because of his conduct.

  6. The Mother proposed an arrangement where the Father could draw down the sum of $10,000.00 from the parties’ mortgage to put himself into a rented property. She suggested a number of rental properties that were available in the immediate area.

  7. Whilst the Father had contended that he was concerned about the Mother’s ability to care for the children he was proposing an arrangement in which the children would spend significant time with their mother.

  8. In particular, it was submitted on behalf of the Mother that:

    a)Her proposal for the children’s arrangements would best meet their needs and allow each party to spend quality time with them. Having regard to the Father’s work roster, it was submitted that otherwise the arrangements for the children would be likely to be in the form of a three party arrangement with the children spending time not only with the Father but also in the care of the paternal grandmother when they could otherwise be spending that time with her;

    b)There is a need for the Mother to reside with the children in the former matrimonial home;

    c)There is sufficient evidence to show that the children have a need to live in the former matrimonial home;

    d)Having regard to the conduct of the Father, it is unreasonable to expect that the Mother should continue to reside with him in the former matrimonial home;

    e)The evidence supports the Mother’s contentions that she has been the primary caregiver for the children in the past and will continue to be the primary caregiver, at least into the immediate future;

    f)The former matrimonial home was purchased by the Mother in her sole name prior to the marriage and brought into the relationship in 2007; and

    g)The Mother has proposed an appropriate alternative accommodation arrangement for the Father.

  9. In the Father’s Case outline Document, his counsel, Mr Watkins, stated that the Father relied on the following documents:

    a)His Response filed on 17th April 2014;

    b)His Financial Statement filed that same day;

    c)His affidavit sworn 22nd May 2014;

    d)The affidavit of his mother, Ms K, sworn 16th May 2014; and

    e)The Child Dispute Conference Memorandum to Court dated 19th May 2014.

  10. Mr Watkins referred the Court to the following decisions:

    a)Goode & Goode[7];

    b)In the Marriage of O’Dea[8];

    c)In the Marriage of R.B & J.M. Davis[9];

    d)In the Marriage of Gillie[10];

    e)In the Marriage of K. & P. Davis[11];

    f)Page & Page[12];

    g)In the Marriage of Harris[13]; and

    h)Dean & Dean.[14]

    [7] supra

    [8] (1980) 6 Fam LR 675; FLC 90-896

    [9] (1976) 11 ALR 445; 1 Fam LR 11,522; FLC 90-062

    [10] (1978) 4 Fam LR 127; FLC 90-442

    [11] (1982) 8 Fam LR 975

    [12] (1981) 6 Fam LR 669; FLC 91-025

    [13] (1980) 5 Fam LR 852; FLC 90-812

    [14] (1977) FLC 90-213

  11. Mr Watkins submitted that, although both parties had made allegations of violence against the other, it is not open to the Court to make findings about these factual matters because of the truncated nature of interim proceedings.

  12. Further, whilst the Mother appeared to object to the Father’s proposals for time with the children because he would be relying on the paternal grandmother to care for the children on occasions when he would be at work, the Mother has also been reliant on her own family to assist her with the care of the children.

  13. The Father had expressed concern about the Mother’s care of the children, especially since she kept the children out of school and day care for ten days after the parties’ physical separation and because he claimed that she has discussed the proceedings with them.

  14. As to exclusive occupation, Mr Watkins noted that courts have stressed the seriousness of excluding one or other party to a marriage from the matrimonial home (In the Marriage of R.B. & J.M. Davis[15]; In the Marriage of O’Dea[16]).

    [15] supra

    [16] supra

  15. It was submitted that the following matters should be taken into account:

    a)The means and needs of the parties and the hardship that would eventuate for the Father if an order for exclusive occupation were made; he has nowhere else to live whilst the Mother is able to live with her parents in a five bedroom house on a five acre property;

    b)The needs of the children – they have ample accommodation at the home of their maternal grandparents, and whilst they had expressed a wish to return to the former matrimonial home they were not averse to living there with their father;

    c)The conduct of the parties may indicate which one of them should fairly be expected to leave the former matrimonial home (In the Marriage of R.B. & J.M. Davis), but it was held in In the Marriage of K. & P. Davis) that the conduct of the parties is only one factor in the appraisal of an application for exclusive occupancy;

    d)The ownership of the former matrimonial home is irrelevant (In the Marriage of Harris[17] per Nygh J at 852); and

    e)The balance of convenience favours the continuing occupation of the former matrimonial home by the father – it was held in Dean & Dean at 76,097 that the applicant for an order for exclusive occupation must show that it is a necessary order having regard to the needs, both physical and emotional, of the Applicant and any children for who the Applicant may be responsible.

    f)It was submitted that the exclusion of the Father was neither necessary nor convenient. The balance of convenience favoured the father as the Mother had rent free accommodation available to her elsewhere.

    [17] supra

Applications for Parenting Orders

  1. Where a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975 (Cth), which are set out in s.60B(1), and the principles underlying those objects, which are set out in s.60B(2) of the Act.

  2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child (or children, as the case may be) as the paramount consideration. Section 60CC sets out the way that the Court determines what is in children’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).

  3. Section 61DA requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the children’s best interests to apply the presumption.

  4. When a Court is making an interim order, as in this case, subsection 61DA(3) provides that the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.

  5. It is noteworthy that s.61DB provides that if there is an interim parenting order in relation to a child, when the Court is making a final parenting order it must disregard the allocation of parental responsibility made in the interim order.

  6. Section 65DAA applies when the Court has made an order that the children’s parents are to have equal shared parental responsibility for them. In that case, the Court must consider whether it is both in the children’s best interests and reasonably practicable for them to spend equal time with each parent (s.65DAA(1)). If the Court is not of that view, it must consider whether it would be in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (s. 65DAA(2)).

  1. All of those matters have been considered.

Orders for Exclusive Occupation

  1. An order that a party to a marriage should be permitted to have exclusive occupation of real property, be it the former matrimonial or some other item of real estate, to the exclusion of the other party is not an order altering interests in property under s.79 of the Family Law Act. It was held by the High Court in Mullane v Mullane[18] at 445 that:

    …s.79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a s.79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment.[19]

    [18] [1983] HCA 4; (1983) 158 CLR 436; 8 Fam LR 777; FLC 91-303

    [19] (1983) 158 CLR 436 at 445 per Mason ACJ, Wilson, Brennan, Deane and Dawson JJ

  2. The power to make an order excluding one party from occupation of property comes from s.114 of the Act. The Full Court of the Family Court held in In the Marriage of R.B & J.M. Davis[20] at 11,524:

    The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of 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 the expulsion from the home of the first party.[21]

    [20] supra

    [21] (1976) 1 Fam LR 11,522 at 11,524

Conclusions

  1. Both parties are in employment. The Mother has accommodation available to her and the children with her parents in a comfortable home, whilst the Father claims that he has nowhere else to live. Against this, the Mother has offered that the father may draw down an amount of $10,000.00 to enable him to obtain suitable rental accommodation in the area. If the Father were to accept that offer and move out of the former matrimonial home, it would not appear to cause him undue hardship. However, he would need a reasonable amount of time to make arrangements to secure appropriate rental accommodation in the area.

  2. The fact that the title to the former matrimonial home is in the Mother’s name is of little or no weight (In the Marriage of Harris[22]).

    [22] supra

  3. The needs of the children are important should be considered in conjunction with the issue of the interim parenting orders which are in the children’s best interests.

  4. It is not possible to make finding on the question of whether the conduct the Father justified the Mother in leaving the matrimonial home with the children because of the inability to test the evidence.

  5. The parties are agreed that they should have equal shared parental responsibility for the children and I will order accordingly. 

  6. I have proceeded to consider whether it is both in the children’s best interests and reasonably practicable for them to spend equal time with each parent, and I have concluded that it is not. The level of conflict between the parties is too high to make such an arrangement feasible.

  7. The evidence goes more towards the consideration in s.65DAA(2), whether it is both in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with the each parent. The parties have already agreed that the school holidays will be shared equally between them. There is agreement that the children have a positive and loving attachment to each parent, notwithstanding the Father’s expressed concerns about the Mother’s ability to care for them and the Mother’s expressed concerns about the Father’s excessive physical discipline of the children.

  8. The parties’ working arrangements have a significant bearing on the matter. The Mother works for four days a week during the week. She does not work on weekends and she has Mondays off. The Father, as was put to the Court at the hearing, works from 5:00am to 1:30pm from Thursday to Monday inclusive.

  9. Whilst there is no evidence that would rule out the children’s grandparents as carers for the children, in my view it is preferable for the children to spend as much time as possible in the care of either their father or their mother, particularly in the early months after their parents’ physical separation. Thus, it would appear obvious that the children should spend Saturdays and Sundays with their mother, as she does not work on the weekend.

  10. The time that the children should spend with their father should be when he is not required to work. He works from Thursday to Monday each week, so the children should be in the care of their mother at that time.

  11. In my view, the children should spend time with their father from after school on Monday afternoon, noting that the father finishes work at 1:30pm on a Monday, until the commencement of school on the Thursday morning. True it is that the Father commences work very early on Thursday mornings, at 5:00am, but his mother should be able to care for the children and get them off to school at that time.

  12. It is a fact that neither parent is required to work on a Wednesday, but a changeover on Wednesday afternoon would reduce the Father’s time with the children by one night each week.

  13. Taking all those matters into account, I am of the view that the need for stability in the children’s lives calls for a return to something closer to the arrangements that they were used to before. Although their maternal grandparents’ home may be comfortable and spacious, it will be seen as a temporary arrangement by the children. The children’s best interests, in my view, call for them to resume living in the former matrimonial home, which has been their home all their lives until they left in March of this year.

  14. The children should reside with their mother in the former matrimonial home. I have decided to allow the Father two months to make alternative arrangements for his accommodation.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 July 2014


Key Legal Topics

Areas of Law

  • Family Law

  • Property Law

Legal Concepts

  • Injunction

  • Remedies

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

2

Goode & Goode [2006] FamCA 1346
S & S [2002] FamCA 59
In the Marriage of Fedele [1986] FamCA 14