Krusaroski and Krusaroski & Anor

[2012] FamCA 201

FAMILY COURT OF AUSTRALIA

KRUSAROSKI & KRUSAROSKI AND ANOR [2012] FamCA 201

FAMILY LAW - CHILDREN - With whom a child spends time - Interim orders – where the mother is the primary attachment figure to the two children aged two years and four months

FAMILY LAW - INJUNCTIONS - Exclusion from matrimonial home – whether the mother should have sole occupation of the former matrimonial home in light of the means and needs of the parties, the needs of the children, hardship to either party or the children, and the conduct of the parties – where the family consultant stressed the need for the children to maintain their normal daily routine – orders for the mother to have sole occupation of the former matrimonial home

FAMILY LAW - INJUNCTIONS - Rights of third parties – where the former matrimonial home owned jointly between the father and his brother – where the fact that orders adversely affect a third party goes to the question of the exercise of discretion, but not to the exercise of jurisdiction – orders for the mother to have sole occupation of the former matrimonial home

Davis & Davis (1976) FLC 90-062
In the Marriage of Harris (1981) FLC 91-100

APPLICANT: Mr Krusaroski

RESPONDENT: Ms Krusaroski

2^nd RESPONDENT Mr M

FILE NUMBER: SYC 626 of 2012

DATE DELIVERED: 14 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: Argyle Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Schonel SC

SOLICITOR FOR THE RESPONDENT: Coleman & Greig

ADVOCATE FOR THE 2^ND RESPONDENT In Person

Orders

IT IS ORDERED

1. That provided the father is not working and available to care for the children the children, J and E born in November 2009, live with the father each Sunday from 2pm – 6pm, each Wednesday from 2pm – 6pm and each Saturday from 2pm -6pm.

2. That on Saturdays and Sundays the father shall collect the children from the maternal grandmother at Business A, Suburb N at the commencement of his time with the children and the father shall deliver the children to the maternal grandmother at Business A, Suburb N at the conclusion of his time with the children.

3. That on Wednesdays the father shall collect the children from day care at the commencement of his time with the children and shall deliver the children to the maternal grandmother at Business A, Suburb N at the conclusion of his time with the children.

4. That the children otherwise live with the mother.

5. That the mother is restrained from smoking in the presence of the children.

6. That without admissions, each of the parties be restrained from consuming alcohol to excess or consuming illicit substances whilst the children are in their respective care and within 24 hours of the children coming into their respective care.

7. That the mother shall direct the pre-school which the children attend to make available to the father any recorded visual material of the children taken at the pre-school from time to time.

8. That pending further order the mother shall have the sole use and occupation of the property at … B Street, Suburb N.

9. That the Applications in a Case otherwise be adjourned to the Judicial Duty List on 25 June 2012 at 10 am.

10. That Mr M be joined as the second respondent in relation to the proceedings for property settlement.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krusaroski & Krusaroski and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 626 of 2012

Mr Krusaroski

Applicant

And

Ms Krusaroski

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are interim proceedings at a very early stage of a bitterly disputed matter between the husband, Mr Krusaroski, and the wife, Ms Krusaroski, in relation to property settlement and matters relating to their children.  Because the husband owns properties jointly with his brother, Mr M, Mr M was served with the applications and appeared before me today.  I will formally make the orders to join him as a party. 

2. It was agreed between counsel at the beginning of the hearing before me today that there were two pressing issues.  The first issue is the time that the father will spend with the twin children of the marriage, J and E, born in November 2009 and, therefore, now aged two years and four months.  The second issue is the application of each of the husband and the wife for the sole occupation of the former matrimonial home, which is situated at B Street, Suburb N. 

3. I will deal first with the parenting applications.  The mother sought an order for sole parental responsibility.  That is not an issue that, in my view, needs to be resolved today, and I do not propose to make any order in relation to parental responsibility. 

4. As between the parties, there was very little agreement about any aspect of their case.  Each alleges significant violence, both physical and emotional, against the other; each alleges emotional abuse; each alleges substance abuse;  and each denies the allegations.  I cannot, on the evidence before me, resolve any of these matters.  The only independent evidence that I have is that of the family consultant, who saw the parties on 9 March 2012, and provided a memorandum to the court. 

5. At the time the family consultant saw the parties the children had not spent time with their father for eight weeks.  It is now 10 weeks since the father has seen the children.  The father asserts that he was substantially involved in the parenting of the children.  The mother denies that assertion.  Insofar as there is any evidence that assists me to resolve that issue and, indeed, insofar as I need to resolve it, I am directed to paragraph 28 of the father’s primary affidavit where he admits that the mother, immediately after the children’s birth, did not work and was the primary carer for the children. 

6. At paragraph 13 of the husband’s affidavit the husband deposes to the fact that he worked six days a week, and that the wife, after a period of time, worked three days a week.  At paragraph 14 of the husband’s affidavit the husband deposes to a conversation with the wife when the wife said to him, “If you want to see the kids, be home at 5”and he said, “That’s a bit hard when you own your own business.”

7. At paragraph 24 of the husband’s affidavit he deposes to the fact that he generally worked on Sundays until around 4 or 4.30, and continued to do so.  On the husband’s version of the evidence the mother must have spent more time parenting the children than did the father. 

8. The parties’ competing proposals were amended in the course of the proceedings before me.  Originally, in the amended application filed on 2 March 2012, the father sought that the children have an equal shared time arrangement between their parents, spending Sunday to Wednesday in week one with him, and Wednesday to Sunday in week two.  The father’s proposals, however  (no doubt on the advice of his legal representatives)  were modified, and before me the order which he sought was that the children would be with him on Sundays from 10.00 am to 6.00 pm, on Wednesdays from 2.00 pm to 6.00 pm, and on Saturdays from 2.00 pm to 6.00 pm. 

9. The mother proposed that the children should spend time with their father on Wednesday from 2.00 pm to 6.00 pm, and on Saturday from 2.00 pm to 6.00 pm.  There was no dispute, unusually for these parties, that the arrangements for the changeover should be as proposed by the mother. 

10. The family consultant, in her memorandum, sets out a number of matters which I will repeat and incorporate into these reasons.  Firstly, she says that the mother reports that the children have been exposed to the father’s abusive behaviour and have been distressed by it, and continue to show some signs of anxiety.  The father has not provided, and is not aware of, the children’s routines and daily care needs, and the children would be distressed at being separated from her for prolonged periods, especially overnight.

11. The father, on the other hand, reports that the children have been exposed to the mother’s abusive behaviour, and they have not shown any signs of distress relating to this.  He has been a hands-on dad, and the children would be missing him, as he is them.  He is capable of caring for the children, including overnight, and they would not be distressed due to being separated from their mother.  Thus the family consultant summarises the respective and completely opposing positions of the father and the mother.

12. The family consultant in her summary says this:

    (1)The children are likely to have a primary attachment relationship with their mother.

    (2)The children’s attachment relationship with their father is dependent on the quality of care he has provided to them, which is in dispute between their parents.

    (3)The children’s relationship with their father will have been disrupted by the eight weeks without contact, and will continue to diminish if contact does not resume.

    (4)In the interim, the children would be expected to maintain a relationship with their father, and not have their relationship with their mother disrupted by spending short periods of time with their father between two to four hours, two or three times a week.

    (5)If the mother’s account is accurate, the children would be likely to experience significant stress if they were to spend prolonged periods without her, including overnights.  If the mother’s account is accurate, the children may also experience stress when spending short periods of time with their father, and may be placed at risk of exposure to his allegedly erratic and aggressive behaviour.

    (6)The children need to be able to maintain their normal daily routine, including meal times and sleep. 

13. I stress, as has been stressed by counsel for both the husband and the wife in the course of argument, that I cannot make any finding of fact in relation to any of the matters which are in dispute between the parties, but I must be guided by the advice of the family consultant in relation to the frequency and length of the times the children should spend away from their mother who, on the evidence before me, is most likely to be their primary attachment figure.

14. Based upon the recommendation of the family consultant the orders which I intend to make will see the children spending time with their father on Sunday between 2.00 pm and 6.00 pm, on Wednesday between 2.00 pm and 6.00 pm, and on Saturday between 2.00 pm and 6.00 pm, provided that the father is not working on any of those times and is available to care for the children.

15. On Saturday and Sunday the children will be collected, in accordance with the mother’s proposal, from the maternal grandmother and returned to her, and on Wednesday the children will be collected from kindergarten and returned to the maternal grandmother. 

16. The parties consent to the making of three other orders.  Firstly, that the mother not smoke in the presence of the children;  secondly, that, without admissions, each of the parties is restrained from consuming alcohol to excess, or illicit substances, whilst the children are within their respective care, or within 24 hours of the children coming into their care;  and thirdly, that the mother should direct the preschool which the children attend to make available to the father any recorded visual material showing the children, which is apparently routinely taken at the preschool from time to time.

17. Turning then to the issue of sole occupation, from 2008 the parties lived together in the house which they had built together at B Street, Suburb N.  The house was built on land which was owned jointly with the husband’s brother.  When the parties separated on 10 January 2012 the mother remained in the home with the children.  On 11 January 2012 an apprehended domestic violence order was made in the Local Court, and one of the terms of that order was as follows:

    The defendant must not go within 100 metres of the premises at which the protected persons may, from time to time, reside or work, or other specified premises, [… B Street, Suburb N], except in the company of a police officer to collect belongings.

18. The effect of that order, therefore, is to remove the father from the former matrimonial home, and to allow the wife to live in the premises, as she has done for the past three months. 

19. Before me the father, through his counsel, says that the hearing of the apprehended domestic violence order is listed on 16 April 2012, and it is hoped that the matter will be finally disposed of on that day.  The father, through his counsel, says that if the orders are not continued by the Local Court, then he will move back into the home with the wife and the children. 

20. Given the allegations that each of these parties makes about the other, it cannot be in the children’s interest that the parties continue to share a home with the children.  The father has accommodation for himself and the children in his parents’ home.  There is no reliable evidence that the mother has any alternate accommodation. 

21. The family consultant stressed the need for the children to maintain their normal daily routine, including meal times and sleep.  Part and parcel of the maintenance of their normal daily routine must surely be that they should remain in the only home they have ever known.  The criteria in matters such as this, when determining a sole use application, are probably best and earliest set out in the decision of Davis & Davis (1976) FLC 90-062, when the Full Court said:

    The criteria for the exercise of power under section 1141 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 to 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. 

22. In my mind, the balance of considerations, having particularly in mind the needs and interests of the children, results in the mother and the children remaining in the home. 

23. Mr M, the second respondent, appeared on his own behalf and, as I understand his position, it was that I should not allow the mother and the children to remain in the home, but that I should allow the father to live there.  The proceedings before the court are of a kind referred to in section 4(1)(e) of the definition of “matrimonial cause” – that is, they are proceedings between the parties to a marriage for an order or injunction arising out of the marital relationship. 

24. As Nye J said in Inthe Marriage of Harris (1981) FLC 91-100, the fact that a third party is affected adversely goes to the question of the exercise of discretion, but not to the exercise of jurisdiction.

25. The extent to which the second respondent is affected must be taken in the context of the way in which all three parties have conducted their lives.  The second respondent allowed the mother and the father to build a house, which was to be their matrimonial home, on land of which he was a half owner.  He acquiesced to the father and the mother living in that property since 2008.  He has never himself lived in the property, and he does not seek to do so.  He is content for his brother to live in the future in the house alone, but says that he would not extend the same consideration to his sister-in-law, niece and nephew.

26. The order that I will make can be revisited if the second respondent is so advised when the matter next comes before the court.  It will come before the court in the first available judicial duty list on 25 June 2012.  That will give the second respondent sufficient time to seek legal advice and to make a decision as to whether he wishes to participate further in these proceedings.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 March 2012.

Associate: 

Date:  14 March 2012