LIBERATORE & LIBERATORE

[2017] FamCA 945

FAMILY COURT OF AUSTRALIA

LIBERATORE & LIBERATORE [2017] FamCA 945

FAMILY LAW – CHILDREN – Interim – Where the wife seeks orders for the children to ordinarily live with her and spend three nights a fortnight with the father – Where the father seeks orders for the children to spend six nights a fortnight with him – Where both parties seek an order for equal shared parental responsibility and propose substantial and significant time – Where it is in the best interests of the children on an interim basis to reduce the amount of changeovers and for the children to ordinarily live with the wife and spend four night per fortnight with the husband.

FAMILY LAW – EXCLUSIVE OCCUPATION – Interim – Where the wife seeks an order for exclusive occupation of the former matrimonial home and if she in unsuccessful in obtaining that order she seeks that the husband pay her costs of alternate accommodation by way of spousal maintenance – Where the wife relies upon the tension that she says exists in the matrimonial home as the basis for seeking an exclusive occupancy order – Where inconvenience is not enough to grant an exclusive occupancy order.

FAMILY LAW – SPOUSAL MAINTENANCE – Where orders are made for the husband to pay the wife’s costs for alternate accommodation. 

Family Law Act 1975 (Cth)

Regan & Regan [2015] FamCA 522

APPLICANT: Ms Liberatore

RESPONDENT: Mr Liberatore

FILE NUMBER: SYC 3211 of 2017

DATE DELIVERED: 22 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 25 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Manning Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Cunningham Legal

Orders

Pending further order

Parenting

1. The parties have equal shared parental responsibility in relation to the children B born … 2012 and C born … 2012 (“the children”).

2. The children live with the wife.

3. The children live with the husband during school term (commencing immediately even though the children are not yet at school) from 3pm Thursday (or after school on Thursday once they commence school) to 9am on Monday (or before school on Monday) each fortnight.

4. By consent, for Christmas school holidays 2017/2018 the children spend time with the parties as follows:

   With the mother as follows:

   4.1.From after preschool 18 December until 4pm 24 December 2017;

   4.2.From 4pm 31 December 2017 until 4pm 7 January 2018;

   4.3.From 4pm 14 January 2018 until 4pm 21 January 2018;

   4.4.From 4pm 28 January 2018 until the children return to school

   With the father as follows:

   4.5.From 4pm 24 December 2017 until 4pm 31 December 2017;

   4.6.From 4pm 7 January 208 until 4pm 14 January 2018;

   4.7.From 4pm 21 January 2018 until 4pm 28 January 2018.

5. Once the children commence school in 2018, they are to spend one half of term 1, term 2 and term 3 school holidays with each of their parents as agreed between their parents and failing agreement, the first half with the wife and the second half with the husband.

6. Unless changeover is at school, changeover is to take place by the parent with whom the children are spending time, delivering the children to the residence of the other parent.

7. By consent, the children spend time with the non-resident parent for no less than a period of three hours on the children’s birthday and the parent’s birthdays from 9am to 1pm on non-school days or 3pm to 6pm on school days unless otherwise agreed in writing.

8. By consent, in the event of a medical emergency involving any of the children, the party with the care of the children to notify the other party within two hours or as soon as practicable.

9. By consent, in the event that any of the children require medical care, the party with the care of the children to notify the other party of the details of such care and any treatment or medication prescribed or recommended, within 24 hours.

10. By consent, each party to do all things necessary to ensure the other party is kept informed at all times and in writing of the residential telephone number, mobile telephone number and residential address of the other party.

11. By consent, each party to do all things necessary to ensure that all schools, doctors, dentists, professional carers and any other professional involved in the care and treatment of the children are authorised at all times to communicate with and provide information and copies of documents in relation to the children to both parents.

12. By consent, the parties are both permitted to attend the children’s first day of school in 2018.

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

Exclusive occupancy

1. The wife’s application for exclusive occupancy and orders restraining the husband from remaining in the former matrimonial home situated at D Street, Suburb E (the Suburb E property”) be dismissed.

Spousal maintenance

1. The husband pay to the wife by way of spousal maintenance a sum of $1,100 per week, the first payment within seven days of the wife vacating the Suburb E property. 

Other applications

1. The wife’s application for other interim orders is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Liberatore & Liberatore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3211  of 2017

Ms Liberatore

Applicant

And

Mr Liberatore

Respondent

REASONS FOR JUDGMENT

1. The parties disagree as to what interim parenting orders should be made. The wife proposes that the children of the marriage, twin boys aged 5 ½, ordinarily live with her and spend three nights a fortnight with their father. The husband proposes that the children spend six nights a fortnight with him.

2. The wife by way of interim orders seeks exclusive occupation of the former matrimonial home at D Street, Suburb E (“the Suburb E property”) and orders restraining the husband from entering the Suburb E property.

3. In the event that the wife is unsuccessful in obtaining those orders the wife intends to move out of the Suburb E property with the children and the wife seeks that the husband pay her costs of alternate accommodation in the Suburb E area in the sum of $1,200 per week by way of rent together with an amount to cover the initial rental bond.

4. The wife initially sought other orders by way of interim property, injunctions in relation to the way the husband conducted his business operations and orders for disclosure and orders for valuation of assets which were not pressed before me. Those applications will be dismissed but on the basis that the wife should not be precluded in the future from making interim applications about those matters should the parties not be able to reach agreement in respect of those matters.

PARENTING

1. It seemed uncontroversial that the parties had reached an agreement and had been implementing an arrangement whilst they have been separated under the one roof since March 2017 that the wife would be responsible for the care of the children on nine days a fortnight and the husband on five days and nights a fortnight. The parties also have agreed in consent orders (see Exhibit 1) in relation to the upcoming Christmas school holidays and I will make orders in those terms. They have also agreed that from the start of the 2018 year the parties will share school holidays equally and they have agreed both will attend at the first day of the children’s schooling in 2018. The parties also reached agreement to orders in the terms of the following orders set out in the wife’s case outline document, namely 18, 19 (but altered to read from “9am to 1pm on non-school days or 3pm to 6pm if a school day”), 20, 21, 22 and 23.

2. The wife proposes that the children be with their father on three nights a fortnight. The husband proposes that the children be with him on six nights a fortnight. The proposal contained in his Response filed 24 October 2017 saw the children moving between their parents on six occasions in a fortnight. In final submissions, counsel for the husband suggested that that be reduced to four occasions a fortnight so that it was proposed in week one that the children be with their father on Wednesday, Thursday and Friday nights and in week two, on Friday, Saturday and Sunday nights.

3. Both parties invite me to make an order for equal shared parental responsibility.

4. In those circumstances, s 65DAA of the Family Law Act 1975 (Cth) requires the court to consider whether or not a child should spend equal time or substantial and significant time with each parent. Neither party seeks equal time although the husband seeks close to equal time. Both parties propose substantial and significant time.

5. There is no factor in this case which would lead me to conclude that the husband’s proposals are not reasonably practicable. The question is whether or not at an interim stage I should conclude that they are in the best interests of the children.

6. It is not controversial that the history of the care until March this year has been the wife has fulfilled the role of primary carer for the children and the husband has worked long hours. He has been home in the evenings and at weekends but otherwise the wife has had the full time load of looking after the children.

7. The husband asserts that he has reduced his working hours. He says he has employed a general manager and a project manager and has started working four days per week.

8. I place some weight on the arrangements the parties entered into whilst they were under the one roof but I take into account the fact that they were under the one roof meant that there was more flexibility in relation to how that arrangement was implemented. The wife has given evidence that the husband on a number of occasions was unable to fulfil a commitment that he had under that arrangement and she had to mind the children.

9. The wife’s proposal has the advantage that the children only move between their parents on two occasions a fortnight as opposed to the six or four occasions alternatively proposed by the husband.

10. Doing the best I can on an interim basis, I find that it is in the best interests of the children that they ordinarily live with the wife and spend four nights a fortnight in one block with their father from after school on Thursday to before school on Monday.

EXCLUSIVE OCCUPANCY

1. The parties purchased the Suburb E property in November 2005 and since that time it has been their matrimonial home. The wife is a 99 per cent legal owner of the Suburb E property. The wife did not attempt to rely on that fact in any way to support her application for occupancy. I infer that the title of the property is held in that way by the wife to protect the parties against claims by creditors of the husband’s business operation. As between the parties, I infer that beneficially the parties are equally entitled to the matrimonial home (subject to any further alteration of property interests this court might make by way of property settlement order). The husband was substantially involved in building the home.

2. The wife relies upon the “tension” that has existed and she asserts currently still exists, in the matrimonial home as the basis for seeking an exclusive occupancy order.

3. In her affidavit filed 20 July 2017 the wife alleges that the husband engaged in arguments with her in the presence of the children. Without specifying when it was, but obviously before 20 July 2017, she also alleges that the husband has intruded into her space by barging into her bedroom while the children are there; sitting in her bedroom while she gets ready and refusing to leave; knocking on her bedroom door to engage in discussion and positioning himself in an “obstructive manner” in the doorway so that she is unable to close the door and end the conversation. The wife also asserts that the husband has engaged in behaviour which has disrupted the children’s set routine. Even putting the wife’s complaints at their highest, the husband’s behaviour falls well short of being violent or even particularly nasty.

4. The husband asserts that the separation came as a complete shock to him. Apart from a few discrete incidents that occurred after separation which might be generally described as testy exchanges, the behaviour of the husband in the household falls far short of what is needed to ground an order for occupancy. Since March the parties have seemed to work cooperatively in the home with some degree of flexibility in terms of sharing parenting commitments. The wife leads no evidence that what she complains of in July is continuing behaviour.

5. Counsel for the husband contrasted this case with a case like Regan & Regan [2015] FamCA 522 where the husband had psychological problems, communications between the parents were incredibly poor and there were allegations of violence and some objective evidence of the husband being prone to angry outbursts and a child who reported to a family consultant that he was miserable living under the one roof with his two parents. There is a total absence of those types of features in this matter.

6. The wife argues that on the balance of convenience, it would be easier for the husband to move out of the home than she and the children moving out of the home if she is to continue to be the person who is primarily responsible for looking after the children. The children shall be with her most of the time.

7. The husband submits that the Suburb E property is very large and each party could have their own space and live separately from the other in that home and that from a financial point of view, that would be the arrangement that would have the least impact on the parties’ finances.

8. There is no allegation in this case of any family violence or other issue in relation to the wife’s psychological health. There is no evidence that the children are being adversely affected by the current arrangements and are probably unaware that their parents are actually separated.

9. Inconvenience is not enough. The power to grant an exclusive occupancy order is a discretionary power where the court must balance the hardship to each party of granting or refusing the order. It is not a power to be lightly used to interfere with the rights of the owner of the property. 

10. Accordingly I dismiss the wife’s application for exclusive occupation and orders restraining the husband from continuing to reside in the Suburb E property.

SPOUSAL MAINTENANCE

1. The wife has indicated that if she was unsuccessful in her application for exclusive occupancy she would move out of the Suburb E property with the children.

2. She would seek to reaccommodate herself in the Suburb E area.

3. The wife has identified a range of properties which might be suitable and seeks a specific weekly amount that would cover rental of the property at the top of the range of properties that she has looked at.

4. Counsel for the husband is critical of the wife selecting the dearest of the rental properties the wife has identified, saying that it is excessive in terms of what the wife needs.

5. I am mindful that the husband is in total control of the considerable assets of the parties. On the wife’s calculations, the net assets are $5.6 million. The husband concedes they are worth $3.5 million.

6. The wife went back to casual employment as a radiographer during school hours after the parties separated under the one roof. She has been able to work some non-school hour shifts on the basis that the husband would be responsible for parenting the children whilst she was working those shifts. That has worked flexibly whilst the parties have been under the one roof but it will be more difficult when the parties are apart. The children will live with the wife 10 nights a fortnight (apart from school holidays). 

7. There is some issue as to what cash flow the husband has from his businesses.

8. Counsel for the husband conceded that the husband’s financial statement does not give a complete picture of the husband’s income. It only records what the husband chooses to take by way of wage from companies and trusts which are the husband’s alter ego but does not record what profits those companies and trusts might make.

9. The husband has chosen to resist the wife’s application for exclusive occupancy. He is entitled to do that but it is a matter that I take into account when considering whether or not to make an order that he fund the wife’s alternate accommodation in those circumstances.

10. I find that it is proper for the husband to pay to the wife an amount of $1,100 per week so that the wife has the capacity to obtain suitable alternate accommodation for she and the children in a location in reasonable proximity to the former matrimonial home, albeit that amount is not at the top of the range of rental expenses set out in the wife’s evidence.

11. In final submissions, I was told the wife will shortly receive an amount of about $120,000 from the proceeds of the sale of two properties in November 2017. In those circumstances the wife has the ability to pay her own rental bond and I will not make an order for the husband to do that. This is not money that the wife is losing but simply money the wife has to pledge in order to obtain her alternate accommodation.

OTHER APPLICATIONS

1. The wife does not press other applications that she made in her Application in a Case filed 10 October 2017 and those applications are dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 November 2017.

Associate: 

Date: