KIMBERLEY & KIMBERLEY

[2011] FamCA 406

FAMILY COURT OF AUSTRALIA

KIMBERLEY & KIMBERLEY [2011] FamCA 406

FAMILY LAW – CHILDREN – With whom the children spend time – Where visitation has been erratic – Where the parties lack communication – Where allegations of violence cannot yet be determined.

FAMILY LAW – PROPERTY – Exclusive occupation of the family home – Where the father is the primary owner of the property and pays the mortgage – Where the mother has the convenient option of staying with the maternal grandparents who traditionally care for the children in work hours.

Family Law Act 1975 (Cth)

Real Property Act 1900 (NSW)

Davis & Davis (1976) FLC 90-062
Dean & Dean (1977) FLC 90-213

Ploughman & Ploughman (1970) 16 FLR 447

APPLICANT: Ms Kimberley

RESPONDENT: Mr Kimberley

FILE NUMBER: SYC 287 of 2011

DATE DELIVERED: 7 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: K.R. Barnes & Co

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

Orders

Pending further order:

1. The parties have equal shared parental responsibility in respect of the children of the marriage, M born … July 2007 and S born … July 2008 (“the children”).

2. The children live with their mother.

3. The children spend time with their father each Sunday from 9am to 5pm and each Thursday from 6pm to 7.30pm.

4. The mother deliver the children to their father at the commencement of the periods detailed in order 3 and the father return the children at the conclusion of these periods.

5. The mother purchase a book (the “communication book”) into which each parent is to write in a timely manner, significant information relating to the welfare of the children or any of their activities.  The communication book is to pass between the parents, by placing it in a bag to be carried by one of the children at each changeover.

6. The mother attend a post separation parenting course.

7. The father have sole and exclusive use of the property situated at and known as M Street, Sydney Suburb 1 (“the matrimonial home”).

8. The mother’s application for the sale of the matrimonial home be dismissed.

9. The mother’s application for spousal maintenance be dismissed.

10. The mother provide to the father copies of any document she has given or needs to give to her accountant for her accountant to be able to prepare the 2010 tax return for the mother.

11. The father’s application in relation to the E-tag be dismissed.

12. Both parties be restrained from drawing upon their line of credit unless there is a written consent of each of the parties or a further court order to do so.

13. The chattels listed in order 12 sought by the mother in her Response to an Application in a Case filed 8 April 2011 remain in the matrimonial home.

14. The mother’s application in relation to chattels be stood over (order 12 sought in the mother’s Response to an Application in a Case filed 8 April 2011). The mother may relist that application upon 7 days notice with appropriate supporting evidence, after she has attempted to resolve that part of the dispute with the father.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 287 of 2011

Ms Kimberley

Applicant

And

Mr Kimberley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The father, by way of a response filed 17 March 2011, sought interim parenting orders in relation to the children of the marriage, M, born in July 2007 (nearly 4) and S, born in July 2008 (nearly 3). He sought an interim order for equal shared parental responsibility. He also sought an interim order that the children live with him most of the time. During the course of the proceedings he amended that proposal. He sought:

   1. The children live with the mother but spend time with their father as follows:

   1.1 Every alternate weekend to commence at 6.30pm on Thursday until 5pm on Sunday;

   1.2 Every alternate week from 6.30pm on Thursday to 6pm Friday;

   1.3 At any other times as agreed between the parties.

   2. The mother provide to the father copies of any document she has given or needs to give to her accountant for her accountant to be able to prepare the 2010 tax return for the mother.

2. The father also sought exclusive occupation of the former matrimonial home at M Street, Sydney Suburb 1; an order that neither party withdraw any money from the National Australia Bank line of credit, account number …; an order in relation to the provision of various documents and orders that the mother collect various items from the matrimonial home and to return an E-tag to him.

3. By a Response to an Application in a Case filed by the mother on 8 April 2011, the mother sought (as did the father) an order for equal shared parental responsibility for the long term care, welfare and development of the children. She sought that the children live with her and spend time with the father each Sunday between 9am and 5pm and an order to facilitate the collection of the children. Orders were sought by the mother seeking exclusive occupation of the Sydney Suburb 1 property and that the father vacate that property, or in the alternative, orders for the sale of the property if exclusive occupation was not granted. The mother also sought an order for access to chattels from the former matrimonial home in the event that occupancy was not granted to her, but did not seek that order if it was.

4. Both parties agreed there had been difficulties around the consistency in the implementation of the arrangements for the children to spend time with their father.

5. The child responsive memorandum had been prepared by Ms R dated 8 April 2011. At page 4 of that memorandum the report writer opined that if the children continued to spend time with their father inconsistently, then they may find it difficult to maintain a relationship with him and then be unsettled after transitions. The report writer suggested that the parents commit themselves to a consistent arrangement for the children to spend time with their father and in the interim, the children spending a minimum of several hours once per week with their father would be sufficient to maintain their attachment relationship, albeit at a basic level.

6. I had expressed a preliminary view that the mother’s proposal that the children would only see their father once a week was inadequate and the mother, during the course of the proceedings, amended the application which she made in her Response of 8 April 2011 to include a further period for the children to be with their father from 6pm to 7.30pm each Thursday. Notwithstanding the ages of the children, 6pm was selected as it was a time by which the father would be confident that he would have returned home from work; 7.30pm was a time that had regard to the current ages of the children.

7. In relation to parenting matters, the father relied upon paragraphs 24 to 46 of his lengthy affidavit. In relation to the application for exclusive occupancy, the father relied upon the material commencing at page 18 of his affidavit, paragraph 75. In relation to the financial document orders the father sought, he relied upon paragraphs 76 to 78. In relation to his request for an order the respondent mother attend a parenting course and be assessed, the father relied upon paragraphs 93 to 97 of his affidavit (at page 21).

8. The mother in response relied upon her affidavit sworn 7 April 2011. The mother also relied upon the child responsive program memorandum dated 18 April 2011 and that document was tendered by consent.

9. The father asserts that during the cohabitation he was a significant primary carer of the children and spent significant time with the children after work. The father’s lawyer conceded that what the father was proposing was a considerable stretch upon what the family consultant said was a basic arrangement or a minimum amount of time that the children should spend with their father but was consistent with it. The father submits that after separation in November 2010 (the mother left the home on 10 December 2010), the father has not had consistent times with the children and that those times have been a sporadic arrangement. Both parents were now agreeing however that the arrangement should be consistent and both are proposing defined orders.

10. I have very much in mind the ages of the children who are almost four and three.  Consistent regular time with their father is important for the children to be able to maintain their attachments with their father.

11. The family consultant did not recommend over night time at this stage. The father is proposing four overnights a fortnight.

12. The family consultant highlighted a high level of conflict between the parties.

13. The father emphasises his previous very good relationship with the children. He wants the children to re-establish that relationship with him and the closeness he had previously had with them prior to the mother restricting his time with them.

14. Both parents work. During the cohabitation, the usual routine was that the maternal grandparents looked after the children Monday to Thursday. After work the father says he would spend time with the children. So the father says, his time with the children has gone from seven days a week to sporadically on Sundays. The father wants something equating the previous relationship to continue and that is why he is now seeking four nights a fortnight. I note that he originally sought that the children live with him most of the time (as he proposed in his application of 17 March). The father submits that the regular routine he proposes is in the children’s best interests.

15. The father sought an order that the mother be psychologically assessed. However, paragraph 93 of the father’s affidavit indicates that what is being sought is some type of personal counselling for the mother so that she can understand the importance of the father in the children’s lives. In oral submissions, the father’s lawyer made it clear that what was being asked for was an order that the mother attend a post separation parenting course. The father consequently did not press the initial application that the mother be psychologically assessed.

16. The father asserts there have been occasions when the mother and her father have attended the former matrimonial home to remove items. It is on this basis that the father seeks an order which recognises the current status quo in respect of the possession of chattels.

17. In relation to the financial documents, the mother has lodged her tax returns for the financial year ended 2009. The mother has not lodged a tax return for 2010.

18. In relation to order 7 as sought by the father, the father asserts the mother previously withdrew monies from the joint account. The father relies upon paragraph 65 on page 17 of his affidavit. That particular paragraph however contains evidence from the father that he withdrew approximately $70,000 from an account in response to his mother withdrawing $4,000. His evidence is that the majority of that money went on the home loan account, some of it to clear the mother’s credit card and his own credit card. The father’s lawyer from the bar table indicated there may have been some other evidence the father could have called to support order 7 as sought but it was conceded that I did not have that evidence before me and consequently there was no basis upon which I could consider making that order.

19. The father conceded that he had the mother’s 2009 tax returns. The father orally amended his application that an order be made that the mother provide to her accountant any documents in the mother’s possession that would allow the accountant to prepare the mother’s 2010 tax returns. The mother consented to delivering those to the father or to his accountant.

20. The father’s lawyer conceded that there was no evidence in the father’s affidavit about the E-tag and I will not be making any order about the E-tag.

21. The mother did not pursue her interim application for spousal maintenance (conceding that she was working).

THE CHILDREN

1. The parties agree that an order should be made for equal shared parental responsibility.

2. In relation to the time the children spend with the father, the mother submits that she has reframed her application to take into account what is recommended by the family consultant in the family consultant’s memorandum. The time on weekends is being increased from three Sundays out of four to every Sunday.

3. The mother’s proposal means that there is not a gap of seven days between the periods of time when they see their father.

4. In relation to equal shared parental responsibility, I did ask during submissions how I would be satisfied with the requirements of s 65DAC Family Law Act 1975 (Cth) (“FLA”). There is a statutory requirement for the parties to consult each other in relation to a decision that has to be made about any long term issue and come to a joint decision about that issue. Usually if there is a significant communication difficulty between the parties, the court would be reticent in making an equal shared parental responsibility order, but given the ages of the children, the only potential issue in this case that might occur is a serious health matter in respect of one of the children. I have sufficient confidence (excluding emergencies) that if a serious elective procedure had to be carried out then the parents would be able to consult and agree with one another and if I am wrong about that there would be sufficient time for them to approach the court for a resolution.

REASONABLE PRACTICABILITY

1. Both parties live in the Sydney Suburb 1 area and live a short driving distance apart from one another. The parties live close enough for there to be equal time or substantial and significant time considering the children are not going to school yet. At the moment, the evidence is that the mother’s parents are the persons who provide most of the caring during work hours for the children. I do take into account however the lack of communication between the parties when thinking about whether or not it is reasonably practicable to provide an order for equal or substantial and significant time.

2. In relation to best interest considerations, the children should benefit from a meaningful relationship with both parents. Relying upon the advice of a family consultant, I am comfortable that either of the proposals of the parents will create opportunities for the children to develop a meaningful relationship with both of their parents.

3. In relation to s 60CC(2)(b) FLA, the mother makes allegations of family violence in the past towards herself and also towards the children. The mother makes claims about inappropriate handling of the children by the father, including discipline and also videoing them. These are disputed matters. The mother read in her case paragraph 23 of the father’s affidavit. The mother complains that at the date of separation, the father, at midnight, videoed the children crying. The mother submitted it was insensitive for him to have done so.

4. The lawyer for the father made the point that the notice of abuse was filed on 9 May 2011 whereas the mother’s initial application was filed in January 2011. The father also attempted to make the point that various parts of her notice of child abuse or family violence filed on 9 May 2011 did not correspondence exactly with paragraphs 4 to 13 of her affidavit filed 8 April 2011. In the context of this interim application however, I find that those asserted inconsistencies are of not great significance (although that might not be the final position once the mother is cross examined).

5. I might correct something I said during submissions and that was that I agreed that there appeared to be an inconsistency between item 6 in paragraph 10 of the notice when compared with paragraph 10 of the affidavit. Having reread item 6 in the notice, there is in fact an assertion by the mother in that paragraph that M not only hit his head with an exercise ball but “not surprisingly, during one swing, [M’s] head missed the ball and his head made full contact with the ground”.

6. The solicitor for the father made the point that the mother had failed to fill out paragraph 48 in her initiating application filed 19 June 2011. I do not draw any conclusion from her failure to do so.

7. I am cognisant of the disputed allegation of abuse and family violence made in this case by the mother against the father.

8. In relation to s 60CC(3) FLA, it goes without saying the children are too young to express any views about what should happen in this matter. It is likely that the children on the whole of the evidence share their closest relationship with their mother, she being their primary carer. There is some dispute between the parties as to the degree of involvement that the father has had in the children’s lives (and accordingly it is difficult for me to make any finding about that).

9. In relation to the capacity of the parents to provide for their needs, the mother submits that the father’s behaviour shows gross insensitivity towards the children and draws into question his capacity to be able to provide for their needs.

10. The change proposed by the mother is to increase the time that they would spend with their father (consistent with the expert advice). The family consultant does not suggest full days during the week and certainly at this point is not suggesting that overnight time would be appropriate.

11. I find the proposal suggested by the mother is in the best interests of the children and is reasonably practicable.

12. In order to attempt to address the communication issues, the family consultant recommended a communication book. During submissions, the mother indicated that she would be quite open to that happening and I will make an order about the use of a communication book. The mother indicated that she would be prepared to go to a post separation parenting program.

13. Both parties agreed to a consent order that both parties be restrained from drawing upon the line of credit unless there was the written consent of the other or further court order.

EXCLUSIVE OCCUPATION

1. Both parties wish to live in the matrimonial home in the interim. Counsel for the mother framed the question I am to resolve as being which proposal is reasonable, sensible or practicable in the circumstances. That over-simplifies the approach I should take.

2. An order for exclusive occupation is made pursuant to s 114(1)(f) FLA. In doing so, I may make an order which I consider “proper”. Orders giving exclusive use or occupation of a matrimonial home are only made with caution. It is a serious matter to turn a spouse out of their home. The onus is on the mother to establish a case for exclusion of the father.

3. The decision in respect of exclusive occupation is not merely something that is decided on a balance of convenience. The consideration of convenience is only one element of getting to a decision as to what order might be proper in the circumstances of an individual case.

4. Matters which I need to consider include the means and needs of the parties; the needs of the children; the hardship to either party or to the children; and if relevant, conduct of the parties (see Davis & Davis (1976) FLC 90-062). These considerations are not meant to be exhaustive. Part of the considerations in relation to needs is the question as to whether or not the mother in this case, can be adequately housed elsewhere and whether there are financial resources to allow her to be housed independently. Balance of convenience is a matter that I would need to take into account.

5. As Wood J observed in Dean & Dean (1977) FLC 90-213, in cases of intense matrimonial disharmony, frequently coupled with assaults by one party to the other, and often occasioning distress to the children, the court needs very little persuasion to take the view that the balance of convenience requires that the mother have sole occupancy of the matrimonial home with the children. As that case showed however, each case needs to be looked at on its own facts.

1. The mother says that when she left the home on 10 December 2010 (and there is dispute about this), she had fears for her safety and that of the children. These fears are set out in her ‘Notice of Child Abuse or Family Violence’. The mother concedes, however, that earlier, on or about 25 February 2010 and after she says the father had pushed her, she slapped his face and picked up a knife. I am unable to make any findings about the risks posed by family violence in this case in this interim hearing.

Means and needs of the parties

1. The mother further deposes in the following terms:

   “At the present time, [the father] lives in this large five bedroom free-standing cottage with all the usual facilities, at least so far as I am aware, on his own. I have been told [the father] has now installed another person or persons in the home as boarders but I have no solid evidence of this and there have been no admissions in this regard communicated to my lawyers by [the father’s] lawyers.”

2. The father’s financial statement filed 19 January 2011 does not indicate any income from rent or board nor that any other person is occupying the household (although I acknowledge that financial statement has not been updated since January).

3. Looking at the father’s financial statement, the father has a surplus of about $350 per week in terms of the gap between his income and his expenditure. I invited the lawyer for the father to concede that the father would be able to get accommodation as a single man for $350 per week but that concession was not forthcoming. That accommodation would of course need to be able to be big enough to have the two children on an overnight basis even on the mother’s proposal of the children having time with him.

4. The mother does not appear to have filed a financial statement in these proceedings. She did not rely upon any financial information at all and withdrew her spousal maintenance application on the basis that she conceded she was working.

5. I will be making an order that the mother be the primary carer of the children.

6. The mother is currently living with her parents with the children.

7. The mother has not demonstrated it would be impossible for the parties to live in the same house together, although I accept that it would not be reasonable or sensible or practicable to expect her to do so.

8. In Ploughman & Ploughman (1970) 16 FLR 447, Carmichael J also referred to the relevant proprietary rights.

9. In relation to the father’s application for exclusive occupation, the father in his financial statement deposes to the fact that on title he is a 90 percent owner of the former matrimonial home and the mother is a 10 percent owner of the former matrimonial home.

10. In terms of the father’s ownership of the former matrimonial home, the mother’s lawyer referred to paragraph 47 of the father’s affidavit filed 17 March 2011. In paragraph 52 there is a summary of what the father says was his property at the beginning of the cohabitation. He says he had the majority of the monies that were used to acquire the former matrimonial home. The father says that the title was registered 90 percent in the father’s favour and 10 percent in the mother’s favour, based upon what the parties at the time acknowledged were the proportion of the contribution the parties to these proceedings made at the time they acquired the property.

11. The father pays mortgage payments on the matrimonial home. Those payments are up to date (see discussion below).

Needs of the children

1. I take into account that the children would probably be advantaged by returning to their familiar home in the time between now and when the matter is resolved on a final basis.

2. I am however, by no means, convinced about this. I have no information in relation to the current living arrangements in the home of the maternal grandparents. The mother certainly has not asserted in her affidavit that anybody is being greatly inconvenienced by the mother and the children living at her parent’s home. I note in fact that the mother’s parents have historically provided substantial assistance to the parties in terms of caring for the children while the parties are at work.

Hardship to either party or to the children

1. The mother deals with the evidence that she relies upon in respect of exclusive occupation at paragraph 75 of her affidavit of 8 April 2011. She asserts that she had received correspondence from the bank advising that there were arrears in relation to the mortgage on the matrimonial home in favour of the National Australia Bank and that the correspondence had called for the mortgage to be brought back into compliance. The application for exclusive occupation seems to have been an application in the alternative to an application for an order for immediate sale.

2. When asked what grounds there would be for a sale if I didn’t order occupancy in favour of the mother, it was again said that I needed to bring to an end the ongoing arrangements that the parties have in relation to mortgage payments. There is a dispute between the parties as to arrears of mortgage. I raised the issue as to where the evidence was in relation to there being arrears of a mortgage. I was taken to paragraph 75 of the mother’s affidavit (second and third sentences). The lawyer for the father asserted that a recent statement in respect of the mortgage indicated that it was up to date. No notice has been issued under the Real Property Act 1900 (NSW) in relation to the mortgage on the matrimonial home. The father’s lawyer provided an email (which at the time it was sent it was said to have had an attachment) indicating that the mortgage was up to date and there were no arrears as at 21 April 2011.

3. Given that I accept that there are no current arrears in respect of the mortgage, the basis for any immediate sale does not exist nor is a factor in considering occupancy.

4. I do not find it is proper to remove the father from the matrimonial home, although it might be more convenient for the mother for that to happen.

GOODS IN DISPUTE

1. In her Response to an Application in a Case filed 8 April 2011, the mother seeks an interim order for the return of various chattels.

2. It was agreed that if I made an order in the mother’s favour for exclusive occupancy then the mother would not pursue this application, however I have not done that.

3. This part of the controversy was not the subject of any focused submissions. I am unable to identify in the mother’s affidavit any evidence that would allow me to make any decision about chattels. I think the safest course therefore is, if the parties are unable to otherwise agree on an interim division, to simply make an order that the chattels remain where they are and to allow the mother to relist the matter if she wishes to pursue that part of the application. That will of course be a risk as to costs and I would take into account when assessing costs as to the reasonableness or otherwise of the parties’ attitude towards attempting to resolve this part of the dispute.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 June 2011.

Associate:   

Date:  7.6.2011