MARRISON & MARRISON
[2020] FCCA 1261
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARRISON & MARRISON | [2020] FCCA 1261 |
| Catchwords: FAMILY LAW – Abridgment – sole use and occupancy – where parties in long relationship – where parties each have affair or form new relationship – where parties separate under one roof – where, without notice, respondent introduces new partner to home – allegations of significant family disputes – where applicant effectively evicted from home – applicable principles – orders made for sole use and occupancy, children to live with mother and spend time with father, change over, modes of communication, non-denigration, participation in education, drug screening, conciliation conference, family report and final hearing – liberty reserved to the parties to apply on reasonable notice for orders for sale of property. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 60I, 61DA, 62B, 62G, 65D, 65DA, 65DAA, 68B, 68P, 68Q, 114 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS MARRISON |
| Respondent: | MR MARRISON |
| File Number: | MLC 4329 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 18 May 2020 |
| Date of Last Submission: | 18 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.C. Stanley |
| Solicitors for the Applicant: | Marcou & Associates |
| Solicitor advocate for the Respondent: | Ms E. Rothschild |
| Solicitors for the Respondent: | Fogarty, Oliver & Rothschild |
THE COURT ORDERS THAT:
The time for hearing this application be abridged.
The provisions of s 60I of the Family Law Act 1975 (Cth) (Act) be dispensed with.
Parenting orders
Until further order, the children X, born in 2005, and Y, born in 2010 (the children), live with the applicant mother.
Until further order, the children spend time with the respondent father as follows:
(a)each alternate weekend, from the conclusion of school on Friday (or 3:30 p.m., whichever be the earlier) until the commencement of school on Monday (or 9:00 a.m., whichever be the earlier), commencing on Friday, 29 May 2020;
(b)each Wednesday, from the conclusion of school (or 3:30 p.m., whichever be the earlier), until the commencement of school on Thursday (or 9:00 a.m., whichever be the earlier), commencing on Wednesday, 3 June 2020;
(c)at such further and other times as the parties may agree in writing.
Changeover occur at the children’s school where possible, and if not at the school, then at McDonald’s restaurant situate at the corner of A Street and B Street, Suburb C.
The parties be at liberty to communicate with each other only as follows:
(a)in writing, including by text message, WhatsApp, an email or other parenting application in relation to non-urgent matters, including changeover; and
(b)in urgent or emergency situations, by telephone.
Each of the parties have reasonable communication with the children by telephone, email, SMS text, or other electronic means (FaceTime, WhatsApp, Skype) during such times as the children are in the care of the other parent.
The children be at liberty to communicate with either parent in accordance with their wishes and each of the parties ensure they facilitate the children in contacting the other parent including that the children should have strict privacy during such communications.
The parties keep the other advised of their respective current address; mobile telephone number and email address and advise the other of any changes within seven days of such change.
Pursuant to s 68B(1) of the Act, the parties and each of them whether by themselves, their servants or agents, or howsoever otherwise be restrained from:
(a)administering any form of physical discipline or violence on the children;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or from permitting any other person to do so;
(c)discussing these proceedings or any related proceedings which may be pending in a state or other court or in the presence or hearing of the children or from permitting any other person to do so.
The parties are free to be fully involved in the children’s education and are each entitled to communicate directly with the children’s primary and secondary education providers and are permitted to attend any school or extracurricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts, carnivals and sporting events, and to receive copies of all school reports, school newsletters and notices and school photographs (at their own expense).
Each party ensure that they take the children to any extracurricular activity that the children may engage in from time to time when the children are in their care.
Pursuant to s 68P(2)(a) of the Act, to the extent that this order may be inconsistent with any family violence intervention order made by a Magistrates Court, this order prevails over any such Magistrates Court order and operates according to its terms and any such intervention order is invalid by operation of s 68Q(1) of the Act.
Pursuant to ss 62B and 65DA of the Act, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders are set out in attachment A (Attachment A) and these particulars are included in these orders.
Drug screening
Within 30 days hereof the parties undergo hair follicle testing at a recognised laboratory (in accordance with the protocol being attachment B hereto (Attachment B)) at their own expense and that for the purpose of same the parties be and are hereby prohibited from cutting, colouring or in interfering with their hair (so as to influence the hair follicle testing results) prior to the hair follicle test.
The results of the Testing, on each occasion, be forwarded – as soon as possible – to the solicitors for the other party.
Sole use and occupancy
Subject to paragraphs 18-19 of this Order, until further order, the applicant mother have sole use and occupancy of the former matrimonial home situate at D Street, Suburb E, in the State of Victoria (the property).
Paragraph 17 of this Order shall become operative, and the respondent father shall vacate the property with effect from midday, Wednesday, 20 May 2020.
Until further order, the applicant wife shall be solely responsible for all rates and outgoings respecting the property including all loan repayments secured by mortgage thereon.
The parties be permitted to apply on reasonable notice for an interim hearing upon the question whether there should be an order for the sale of the property.
Conciliation conference
The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on Thursday, 3 September 2020 at 9:15am.
The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the conciliation conference, copies of:
(a)an outline of case document in the form set out below in the trial directions;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(d)written confirmation by each party or their solicitor that:
i.all relevant documents have been exchanged between the parties; and
ii.the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
Family report
Pursuant to s.62G(2) of the Family Law Act1975 (Cth), the parties and the children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report (the Report) to be given to the Court not later than 21 January 2021.
The Report deal with the following matters:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the likely effect on the children if the Court were to make orders in terms of the father’s and the mother’s proposed orders;
(d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
The parties send copies of all of their court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
If a party is not represented by a lawyer, then within 7 days of being notified that a Family Consultant has been appointed to prepare the Report, each party deliver to the Family Consultant copies of the following documents:
(a)all relevant applications or responses filed by, or on his or her behalf, in the proceeding;
(b)all relevant affidavits filed by, or on his or her behalf, in the proceeding; and
(c)any family violence intervention or restraining orders currently in force.
For the purpose of completing the Report, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceeding.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceeding relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Mention
The matter be adjourned for Mention at 10.00am on Monday, 1 February 2021 before Judge A. Kelly in the Federal Circuit Court of Australia at Melbourne.
No party may rely upon any affidavit that has been filed less than seven (7) days before any Mention Hearing.
Final Hearing:
The matter be fixed for Final Hearing at 10.00am on 21 April 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 1 day.
The following directions are made respecting discovery and use of documents at trial:
(a)no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b)no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c)no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d)save with leave of the Court, no document identified pursuant to paragraph 36(a) of this Order may be relied upon or adduced in evidence at trial.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the court.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 37 – 38 of this order.
Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:
CHILDREN
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s 60CC factors);
(e)a list of contentions relevant to the operation of s 65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
PROPERTY
(h)a list of the material relied upon;
(i)a brief chronology listing significant events;
(j)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(k)main contentions on disputes as to:
i.inclusion of items in the pool; and
ii.the value of items where the value is in dispute;
(l)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(m)list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(n)other contentions relevant to determining a ‘just and equitable’ division of property; the actual orders sought.
In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A. Kelly for the matter to be listed for mention.
The costs of this application be reserved.
AND THE COURT NOTES:
A.The court has queried whether it may be appropriate for an interim hearing on the question whether an order should be made for the sale of the property.
B.The mother has responded to the court’s invitation, submitting that an order for sale may be appropriate.
C.The father has responded to the court’s invitation, submitting that he would prefer to explore the option of purchasing the property and whether he can secure the means of doing so.
D.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
E.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Marrison & Marrison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4329 of 2020
| MS MARRISON |
Applicant
And
| MR MARRISON |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgement explain orders that were made in an urgent application for parenting orders respecting two children X, born in 2005, and Y, born in 2010 (children).
For the reasons that follow, I was satisfied that orders should be made that the children should be immediately returned to the care of the applicant mother and they should spend time with their father in accordance with my orders. In addition, I am also satisfied there should be an order that the applicant mother should have sole use and occupancy of the former matrimonial home.
As these reasons address orders made at an interim hearing, none of the matters set out below can be treated as findings of fact made after a fully contested final hearing. To the contrary, they indicate the matters contained in the parties’ respective affidavits.
Background
The applicant mother and respondent father are aged 38 and 39 years respectively. Until the advent of the recent Covid-19 pandemic the applicant had been employed as a professional. She has been retrenched from her employment and is presently awaiting the determination of her Centrelink application for a job seeker allowance.
The respondent, who is a self-employed tradesman, deposes that he has had no work since the imposition of regulations following the pandemic. However, it also appears that, until the outbreak of the pandemic and the imposition of government regulations, he had full time employment in this business working as a subcontractor.
The parties met in their mid-teenage years and in 2000 were engaged to be married.
In 2001, the parties purchased vacant land situate at D Street, Suburb E (the property) upon which they constructed their home. The applicant continued to live with her parents until the parties were married in 2002. They separated in January 2020.
As noted there are two children of the marriage, X, who is nearly aged 15 and attending a college in Suburb F where he is studying in year 9. The younger child, Y, who is nearly aged 10 attending Suburb C primary school where she is studying in grade 4. Each of them, though distressed by the current parental conflict, is otherwise in good health and progressing reasonably well.
Each of the parties has worked throughout the marriage. Although the applicant took a period of about seven weeks maternity leave following the birth of the parties’ first child, and six months following the birth of their second child, otherwise, the parties have each worked throughout their marriage. One result of those facts is that the maternal grandparents have been actively involved in the lives of the children, including in lending support to the marriage by providing after-school care to the children. On the applicant’s case, the parties would drop the children at the home of the maternal grandparents of a morning and collect them after work.
Each of the parties gave an account of their participation in the children’s sporting activities. Each of the parties maintains that they are the primary caregiver to the children. If it is not resolved, this is a matter which will require investigation at trial.
Family violence
It is common ground that since January 2020 the parties lived separately under the one roof until 25 April 2020 when the applicant left the property and took up residence temporarily at her parents’ home.
April 2020 is a month in which a series of events occurred, culminating in the applicant being excluded from the former matrimonial home. It is convenient to address the details of April 2020 in some detail.
The parties’ relationship deteriorated in a significant way when in January 2020 they, with their children, were on a cruise ship to Country H. It is the applicant’s claim that the respondent began yelling abuse at her, grabbed her by the throat, and head-butted her, pushing her against a balcony door and that this resulted in the intervention of the ship’s crew. Contrastingly, the respondent’s case is that the parties’ dispute on their cruise occurred following the discovery that the applicant had engaged in a long running (seven year) affair. It is the applicant’s case that after being assaulted by the husband he disembarked at City J. Her affidavit described the circumstances of an assault which occurred on board the vessel and that the respondent returned to Melbourne. The respondent counters (perhaps with some force), that there has been no history of family violence and that the applicant has manufactured false complaints.
The mother alleges that on 1 April 2020 the father committed family violence upon her in the presence of his new girlfriend, Ms K, and their son X, and that this occurred at a time when the younger child, Y, was in the care of the maternal grandparents. On the applicant’s case, when she found the respondent in the bedroom with Ms K and sought an explanation as to the woman’s identity “he began yelling at me, swearing, calling me names . . . pushed me, backwards, into the kitchen” where he “grabbed me around the throat with his right hand. He let go and slapped me on the side of the head” and then left in his car with Ms K. On his case, when Ms K’s presence in the bedroom was revealed and the applicant had remonstrated with him, the respondent countered that the applicant was in no position to protest.
Whilst the mother called police who attended the former matrimonial home, by the time they had arrived the father and Ms K had left the premises.
The respondent recounted incidents on 1-2 April 2020 where he says that the applicant had prevented their son from leaving the property (which was reported to police on 6 April 2020) and where the applicant has damaged his personal property, including by wiping faeces onto the bumper bar of his vehicle and hiding other property. Again, the respondent has made video and/or photographic recordings of this.
The respondent also recounted an incident on 6 April 2020 where he says the applicant had been kicking at the bathroom door whilst he was using the toilet and began abusing him in the presence of the children (an event which he recorded on a mobile phone).
The parties have made a series of applications for family violence intervention orders. On 8 April 2020, the police made application:
a)on behalf of the father and children for an intervention order against the mother which was granted ex parte by the Suburb L Magistrates Court. The police summary of the respondent’s complaint referred to the applicant’s affair and that the parties were living separately under the one roof; identified that (one or both of) the children had been relocated to a family member’s address and that the respondent was travelling between the two residences;
b)on behalf of the mother. The police summary of why an order was needed described the incident that had occurred on 1 April 2020 and noted an absence of marks on the applicant’s neck or face and that, upon conducting a welfare check with the son, recorded that he considered the parties’ relationship was “fine”. Police record that the applicant stated “she is in no fear of the respondent and that the respondent has shown no violence towards their kids.” At that stage, no order was made on the mother’s application.
Both applications are returnable on 12 August 2020.
A feature of the case is the number of recordings the respondent is said to have made in relation to examples of abusive conduct by the applicant.
There is ample evidence that the applicant, respondent and Ms K respectively have engaged in highly abusive language toward the other.
On 15 April 2020, the mother’s solicitor wrote a letter respecting a proposal for a resolution of the parties’ parenting and property issues which letter was transmitted by express post and delivered on
16 April 2020. The respondent has not replied to that letter.
However, it is the respondent’s case that once the applicant’s affair of some seven years had been revealed, attempts to discuss the resolution of property and parenting issues with the applicant have been ignored.
On 25 April 2020, the parties separated on a final basis following a series of incidents which occurred at the former matrimonial home on that date. The mother alleges that at about 10:30am a friend of the father, Ms M, attended the former matrimonial home and sought to speak with the child, Y, alone in the garage. When the mother observed what was occurring she instructed the child to return indoors. The applicant contends that the respondent, Ms M and X then left the property. Later, at about 1:20pm, it appears that the parties’ son was enlisted for the purposes of telling his sister that she should go outside and speak with Ms M whom, it emerged, was present at the property with the respondent. When the applicant went outside she discovered her daughter was in Ms M’s car and when she attempted to speak with her daughter, she contends the respondent blocked her access stating repeatedly “I agreed to this. I agreed to this.”
The applicant has not seen her daughter since that date. It now appears that the parties’ daughter was then delivered to the residence of the respondent’s sister in Suburb N. In the event, some evidence was given by the paternal aunt as to the daughter’s living arrangements at various times since 25 April 2020. There is other evidence that the daughter has also been housed at some times with Ms M.
On 26 April 2020, the mother attended Suburb F police station to report the incident which had occurred the previous day and was told by police there was nothing they could do and she should apply for a recovery order. As appears below, police undertook a welfare check following this request for assistance and observed the younger child to be distressed but advised there was nothing further they could do.
Although the evidence is somewhat unclear, it appears that the elder child continues to live with his father at the property.
On the applicant’s case she has attempted to communicate with the respondent and ascertain the whereabouts of the parties’ daughter. She deposed that the respondents reply was to the effect that the daughter “was in an unfit environment in my care” and it had been for this reason that he had orchestrated the child’s removal on 25 April 2020. Her evidence is that the respondent has been largely uncommunicative and does not respond to her SMS messages.
On 30 April 2020, the father sent SMS text messages to the mother purporting to permit the child Y to speak with her mother three times per week (Mondays, Wednesdays and Fridays) however, many such calls have not eventuated. In these messages the respondent stated that the children’s calls with the applicant would be monitored and that the call would be terminated if she traversed into unacceptable territory. The messages also recorded that the parties’ son wished to have some space and would make his own decisions whether to contact the applicant (choices which the respondent said he would respect).
It is the applicant’s evidence that, on the occasions she has been able to speak to her daughter, Y has been crying and anxious. There is little or no evidence of the son’s communication with his mother.
Since the institution of the proceeding, each of the parties has filed a notice of risk. While the mother contends that the husband and his new girlfriend have perpetrated family abuse upon her and the children, including the removal of the younger child from the mother and without her consent, the father largely denied such allegations. Insofar as allegations of this kind are made:
a)the mother restated many of the matters set forth above but added the father has a history of illicit substance abuse including ICE and the cultivation of marijuana;
b)the father asserts that he and his partner have been verbally abused and physically abused by the applicant’s brother and that the mother discusses serious adult themes inappropriately in the presence of the children and would frequently not get home until after 7-8pm; thereby calling into question her parenting capacity.
On 15 May 2020, the Department of Health and Human Services filed a report indicating that it intended to take no further action. However, in recounting the history of the matter, DHHS reported upon the distress of the child Y in respect of whom the police welfare check had been made. From the sequence of events detailed in the material, I infer that the welfare check occurred on or after 26 April 2020.
The children have lived at the property since they were born. The property is comparatively close to each of the children’s schools.
Financial position
Each of the parties has filed a financial statement which I have considered. By way of overview, the parties financial summary discloses the following matters, none of which have been tested:
Item Applicant Respondent
(1)income $Nil $510
(2)expenditure $1167 $173
(3)property $345,000 $199,500
(4)superannuation $148,000 $37,340
(5)liabilities $107,500 $116,000
(6)resources $Nil $Nil
While I have considered those matters, the parties’ submissions did not descend to examine the matters contained in their financial statements. By way of overview, the respondent’s case is that he has largely assumed responsibility for servicing the mortgage. The force of that evidence may be gauged in part by the extent to which the applicant has been able, and the respondent has been unable, to accumulate superannuation.
Of immediate relevance is that the parties’ sole non-superannuation asset of any significance is the property in respect of which each of them seeks an order for sole use and occupation. Notably, the parties’ dispute the current value of that property and it would seem they perceive it to have a value of between $400,000 and $700,000. Further, as appears from their respective statements of liabilities, each appears to agree that the property is encumbered by a mortgage of about $200,000. Now is not the occasion to explore what is likely to be the true value of that property. Of equal note is that each of them asserts a 50% interest in the property.
Procedural history
On 1 May 2020, the applicant initiated this proceeding by filing her application together with supporting affidavit, financial statement and notice of risk. In substance, the applicant sought orders for the recovery of the children and for the sole use and occupancy of the property.
On 5 May 2020, the respondent husband was served with the applicant’s material. On the date immediately prior to the return of the application in the Duty List, on Sunday, 14 May 2020, the respondent filed and served a notice of address for service, response, answering affidavit financial statement and notice of risk.
By her initiating application the applicant detailed the interim and final relief which was sought in the proceeding including for a recovery order, and addressing spend time arrangements together with an order that she have the sole use and occupancy of the former matrimonial home until “the payment or completion of the sale of the property”. Extensive orders were proposed respecting arrangements by which to value the property or to take steps to secure the sale or transfer of the property.
By his response the respondent also sought an order for the sole use and occupancy of the property. He seeks orders that he should have sole parental responsibility for the children. In many respects, the orders proposed by the parties mirrored those sought by the other.
Each of the parties has filed a detailed affidavit which I have considered. As noted above, the matters addressed by those affidavits must be considered in the context that the parties’ evidence has not been tested.
Having regard to the matters raised in the parties’ affidavits, when the matter was called over in a Duty List, I made a direction that the children the brought to the court’s child dispute services section.
When the matter was recalled, I provided the parties with an indication that I would, in accordance with usual practice, give the parties a trial date, mention and make directions regulating each of those matters, including for the provision of a family report. I also identified the various parenting orders which appeared appropriate to be made on an interim basis including for the parties to undergo a hair follicle test (if only to remove the spectre of drug abuse allegations at trial).
While each of the parties had filed an outline of case, their legal representatives’ oral submissions were focused predominantly upon the question of sole use and occupancy of the property.
In the course of the parties’ submissions, a question arose as to whether, and if so, for how long, the younger child had been living separately from her sibling. The solicitor for the respondent advised that the child had been living with her paternal aunt who was present in court. At my invitation, the paternal aunt gave evidence, doing so in an honest, candid and forthright manner. The respondent’s sister, Ms O, gave evidence that she resides in a three-bedroom residence in Suburb N. She denied that the younger child had been living with her permanently since 25 April 2020 but said that the child had stayed with her on that weekend and apparently at some other times.
Ms O also said that the parties’ daughter had stayed with her on the weekend after 25 April 2020 in circumstances where the respondent had asked if she could do so. Although the issue was not explored in any detail, the impression I gained was that the respondent had said that at that time things were “a little hot” at home.
The witness also stated that she could not accommodate the respondent on a temporary basis including that she would not allow him to sleep on the couch for a short time by reason that it was new and she would not allow anyone to do that. In another part of her evidence, the witness stated that she and her daughter sleep in the one king size bed.
The respondent’s new partner, Ms K, and his friend, Ms M, did not give evidence and it is thus a matter of speculation whether they agree in or contest the applicant’s evidence and whether either of them has her own accommodation.
Before hearing submissions, I advised the parties that I would seek to make orders that day but would most likely reserve the publication of reasons for my decision. Having listened to the parties respective submissions, I reserved my decision and took the opportunity to reflect further upon what orders ought to be made on an interim basis. After doing so for some time, I announced the orders which were made that day. Following the making of those orders, a further submission was made by the respondent’s solicitor and which is addressed below.
Applicable principles
Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the court may make such parenting order as it thinks ‘proper’. In Bondelmonte v Bondelmonte,[1] the Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[1] (2017) 259 CLR 662, [8].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: Act, s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the court must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
The court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[2] Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may assume prominence over allowing for a meaningful relationship with both parents as provided by par 60CC(2)(a). This conclusion is further reinforced by the exception provided for in par 60B(2) of the Act.
[2]By operation of amendments to the Act effected by sub-s 60CC(2A) which require the court to do so in respect of proceedings instituted after 7 June 2012.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accord priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including orders that may protect a child from harm.
Interim orders
The principles in Goode v Goode,[3] apply to the determination of an interim application for parenting orders.[4] There, the Full Court drew attention to the amendments to Part VII of the Act,[5] the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard, as the paramount consideration, to the best interests of the child in deciding parenting orders.[6]
[3] (2006) 36 Fam LR 422.
[4] (2006) 36 Fam LR 422, [66]-[82].
[5] The relevant amendments to Part VII took effect from 1 July 2006.
[6] (2006) 36 Fam LR 422, [7]-[10].
The Full Court recognised that interim proceedings were interlocutory in nature and confirmed some of the statements in Cowling & Cowling,[7] accepting that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make”.[8] In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:[9]
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)
[7] (1998) 22 Fam LR 776.
[8] (2006) 36 Fam LR 422, [69].
[9] (2006) 36 Fam LR 422, [72].
Goode’s case holds that the Act evinces a legislative intent that generally favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. However, the general legislative intention in favour of substantial parental involvement cannot be read as being divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm, from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would otherwise be in their best interests or reasonably practicable.
The following principles stated in Goode’s case[10] are applicable when following the legislative pathway:
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
[10] (2006) 36 Fam LR 422, [82].
(e)-(j) . . . ;
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from harm or from being subjected to or exposed to abuse or family violence.
Goode’s case holds[11] that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
[11] (2006) 36 Fam LR 422, [81].
In the context of the present application for interim parenting orders, the court must have regard to the considerations in ss 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.
It must also be recognised that the capacity to evaluate and weigh the material on an interim hearing is constrained by those considerations and for that reason the conclusions expressed at an interim hearing are necessarily couched in qualified terms.[12]
[12] Marvel & Marvel [2010] FamCAFC 101, [120]; SS & AH [2010] FamCAFC 13, [88].
The court is nonetheless not required to ignore a contention or evidence merely because it is untested.[13] To the contrary, having regard to the imperative requirements of s 60CC(2A), the court must give greater weight to the risk to a child of exposure to abuse, neglect or family violence and for those reasons must assess the risk of such harm. This assessment requires a predictive evaluation of the likelihood of the occurrence of harmful events and then consideration of the severity of the impact caused by those events, neither of which can be postponed.[14] However, because there will be little uncontested evidence at an interim hearing, only limited consideration of the factors identified in s 60CC may occur and such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issues.[15]
[13] SS & AH [2010] FamCAFC 13, [100].
[14] Deiter & Deiter [2011] FamCAFC 82, [61].
[15] Banks & Banks [2015] FamCAFC 36, [47]-[50].
The court well recognises that, while they should be considered, an exhaustive discussion of the factors in s 60CC is not required. Indeed, to do so may risk that sight is lost of the forest for the trees, including where the available evidence leads inexorably to a particular conclusion. Instead, the paramount consideration is to have regard to a child’s best interests. The fact that I have not traversed each of the considerations identified by s 60CC or every aspect of the parties’ evidence does not mean that they have not been considered. It largely reflects that I have examined the issues that were emphasised by the parties’ submissions. Put another way, while I have regarded the parties’ submissions as identifying the relevant considerations, I have not disregarded the considerations addressed by s 60CC unless they are plainly irrelevant.
Sole use and occupancy
Both parties sought orders for sole use and occupancy of the property. In the applicant’s case, a further order was sought that, in addition, the court should also order that she should pay all mortgage liabilities and outgoings. I regarded it as implicit in the respondent’s submissions that if he was to obtain an order for sole use and occupancy, he too would bear those costs and outgoings.
An order for sole use an occupancy is an interim order.
The jurisdiction and power to make an order for sole use and occupancy of the specified residence of parties to a marriage is contained in
par 114(1)(e)-(f) of the Act. While the criteria for the grant of such relief have been described as ‘surprisingly vague’, it is clear that the discretion is conditioned by the requirement that it be proper to make such an order. The power to grant such injunctions is not to be exercised liberally and there must be circumstances arising out of the relationship which “make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.”[16]
[16] Banks & Banks [2015] FamCAFC 36.
Discretionary considerations that are invariably addressed upon such an application include “the means and needs of the parties, the needs of the children, hardship to either of 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.”[17] It has also been suggested that it is no longer necessary to show that the circumstances would make it impossible or intolerable for the applicant to continue in co-occupation of a house with the other party. Nor is it necessary to demonstrate conduct as would justify expulsion. Rather:
All that is necessary, it seems, is that the court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.[18]
See also Gillim & Gillim;[19] Rudd & Riddick (No 2).[20]
[17] Davis & Davis (1976) FLC 90-062, 75,309.
[18] Davis & Davis (1983) FLC 91-319, 71,170 (Baker J, Evatt CJ and Underhill J agreeing).
[19] [2019] FamCA 897, [65]-[70] and cases cited.
[20] [2019] FamCA 691, [33]-[35].
Consideration
The present application came before me in a Duty List.
In making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child or in this case, the children.[21]
[21] Goode v Goode (2006) Fam LR 422, [81].
The parties’ submissions did not closely follow the progressive or staged analysis that is identified in the authorities addressed above. Adopting the principle that the consideration which is required at an interim hearing is largely defined by the manner in which the parties have joined issues,[22] I decided upon the orders that ought to be made in the best interests of the children having regard to the parties’ submissions. In this context, an assessment of the need to protect children from risk is not confined to a determination of the occurrence, or risk of the occurrence, of events which may constitute abuse, neglect or family violence. Instead, that assessment must be undertaken within the broader context of the ultimate determination of what is in a child’s best interests when making a parenting order.[23]
[22] Banks & Banks [2015] FamCAFC 36, [47]-[50].
[23] M v M (1988) 166 CLR 69, 76-77; Slater & Light [2013] FamCAFC 4, [34].
As concerned the parties competing proposals, each of the parties had sought an interim order for the sole use and occupancy of the property. In the circumstance that I had made a direction for the children to be brought to the court’s child dispute services section, the application for a recovery order was not pressed. Instead it was submitted, that interim parenting orders would circumvent the risk of any trauma to the children as would otherwise occur as a consequence of making a recovery order. The eminent good sense of that approach was laudable.
There had been some debate as to the precise extent of any admissions made; however, on the evidence an available inference is that while the applicant may have been aware from February 2020 that the respondent had a new girlfriend, she was wholly unaware of his intention to install her at the property until her arrival, and discovery in the bedroom on 1 April 2020. Counsel for the applicant submitted that the circumstances in which the girlfriend had been so installed served to indicate: the manner in which the respondent sought to exert power in the relationship; the respondent’s lack of respect for the relationship; the lack of insight as concerned parenting issues and the impact of such conduct.
In particular, attention was drawn to the respondent’s affidavit where he deposed at [20] that “The wife knew about my partner and there was no set agreement stating that we would not bring anybody home.” Having framed the proposition in express negative terms, the likelihood of there having been no such agreement may be accepted. However, even at its highest, this evidence said nothing to the question of the impact such conduct might have had upon the elder child who was then present or the younger child when she returned home. Indeed, the circumstance that the respondent was later to make arrangements for his daughter to spend time with his sister in Suburb N and perhaps with Ms M rather than at the property, may support an inference that he too recognised the impact which the installation of the girlfriend may be likely to have upon her.
Attention was also drawn to the respondent’s evidence as to the exchange which he had with the applicant on 1 April 2020 after the discovery that the respondent’s girlfriend was present at the property. His affidavit stated “My partner and I did ask the wife why are you still here after both children expressed to that wife that they are upset by her presence in the home and her behaviour after they expressed their desire for her to leave we did ask her why is she still here besides to cause conflict.” Again, at the least, on the respondent’s own evidence: (1) each of the respondent and his new partner were asking the applicant to leave; (2) the two children had been caught up in the conflict and apparently enlisted in the process of securing the applicant’s immediate removal. These matters were said to be reinforced by the complete lack of support being shown by the respondent to facilitating the children’s spend time and communication with their mother, particularly following the very recent breakdown of the parties’ relationship. And this was said to be especially so where it was said that the respondent had not facilitated any communication or spend time for the children on Mother’s Day. On one view, this submission was partially undermined by the evidence.
While the parties submissions were not strictly framed in terms of whether the applicant had demonstrated a serious question to be tried, I am satisfied that the case for urgent relief has been made out.
In particular, I was satisfied that it was not practicable for both parties to live in the property and that despite the parties’ contest over who has been the primary carer of the children, “a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents and that that factor ought to weigh at least as heavily in the scales as the personal protection of the parent seeking relief”: see Page v Page.[24]
[24] [1980] FamCA 79; (1981) FLC 91-025 citing Bassett v Bassett (1995) 1 All ER 513.
In relation to the balance of convenience, counsel for the applicant made persuasive submissions that it was in the children’s best interests that they should continue to live with their mother and that they should do so in the residence which has been their home for their entire lives, particularly in circumstances where it was in close proximity to the home of their maternal grandparents who it was agreed provide a significant measure of care for them and was also relatively close to their schools. In short, it was said that where both parties sought an order for sole use and occupation of the property, the balance of convenience favoured that priority be given to preserving a support system represented by the cumulative weight of the factors set out above.
The solicitor for the respondent submitted that the respondent had been the child’s primary carer since the applicant often worked up to 7-8 pm of an evening and that while the police had granted an intervention order in favour of the respondent, no such order had been granted respecting the applicant. As concerns the unannounced arrival of the respondent’s new partner at the property on 1 April 2020, it was said that the applicant had known of the respondent’s new relationship since February 2020. It was also counted that the applicant also had a new partner (disclosure of this having occurred on the Cruise). Insofar as an explanation was proffered for the fact that the children had been separated on at least some occasions since 25 April 2020, it was suggested that the elder child had told the mother “I need space” and in any event that the children spent a lot of time with their maternal grandparents.
It was also submitted for the respondent that while the applicant could continue to live with her parents (“with whom she had lived before she was married”), the respondent “had nowhere to go”.
Counsel for the applicant mother, in written and oral submissions, maintained that the mother had been the primary carer of the children. It is clear that there is a factual dispute as to primary care. However, on the parties work history it seems open if not probable that each of the parents were both involved in such care. It is a neutral consideration.
Each of the parties’ submissions addressed the various ways in which they had made contributions towards, and participated in the lives of, the children including by way of being homemaker or parent and participating in their education and extra-curricular activities such as basketball training and dance class.
While the court cannot finally address disputed questions of fact on a final basis in the course of an interim hearing, it is the case of the applicant mother that following the parties’ separation under the one roof in January 2020 following an episode of family violence, matters escalated on 1 April 2020 when the respondent father grabbed her around the throat, slapping her on the side of the head resulting in her making an immediate call for police assistance (and who attended the property). Given the matters addressed in the police IVO application, it is open to question whether the applicant’s case on this issue is exaggerated.
I have recounted above that on 8 April 2020, the police issued reciprocal applications for intervention orders on behalf of the parties and that each of their proceedings is listed for further hearing on 12 August 2020.
Then followed, on 25 April 2020, the series of events culminating in the father, with the assistance of a friend, taking the younger child from the former matrimonial home and with respect to whom the mother has had no contact since that date, including any contact on Mother’s Day. While the parties are in dispute upon the issue, it is the case of the applicant mother that the children have spent no time and had no contact with her since 25 April 2020. Again, whilst the parties are in dispute as to these matters, it is suggested on behalf of the applicant mother that in consequence of the matters occurring in April 2020, the children have also been separated from the maternal grandparents who have, to this point, been such an active part of their day-to-day existences. In addition, and again whilst it is presently the subject of dispute, there is some evidence that the children have also been separated at various times since April 2020, with the younger child residing from time to time with the respondent father’s sister in Suburb N and/or with Ms M, leaving the elder child living with his father and new partner at the property.
The applicant’s submission is that as she is presently without employment she is in a position to immediately resume her role as parent to each of the children. In light of the events occurring in April 2020, the applicant has received the assistance of her parents with whom she is presently living; however, from her evidence it seems clear there is insufficient room for her to live with the children at the residence of the maternal grandparents.
As concerns discretionary considerations, it is apparent that the property is in relatively close proximity to the children’s school and the residence of the maternal grandparents who have habitually provided after school care to them until they are collected after dinner. I accept that the home of the maternal grandparents does not have sufficient space to accommodate the applicant, the two children and grandparents.
Although it was submitted that the respondent’s industry had not been affected by the pandemic such that he could apply his income to alternative accommodation, this issue was not explored in any detail. In a similar vein, little was said in relation to the submission that as the wife has been made redundant from her employment, she is presently in no position to secure alternative accommodation.
The applicant also contends that as the respondent has been engaged full-time in subcontracting work, his trade has not been affected. This also is a matter which will need to be investigated at trial.
It is clear that the parties’ are of modest means. Of greater relevance is the question of the needs of the children, hardship to them and, in this case, conduct which may justify the other party in leaving the home.
I am less than persuaded by the respondent’s submission that he has no alternative accommodation. At the least, as was observed in the course of cross-examination of the respondent’s sister, she has been prepared to support him both by attending court and in providing a safe harbour of sorts to the younger child at a period of volatility during the separation of the parties as compounded by the arrival of the respondent’s new girlfriend. The evidence of the respondent’s sister is that she lives in a three bedroom unit.
Attention was also drawn to the relevance of family violence in the context of an application for sole use and occupancy of the property: see Salah & Salah.[25] There the Full Court observed that where a court is confronted with an allegation of family violence it must be dealt with, including within the scope of the principles applicable to an interim hearing. Section 61DA of the Act, which concerns the topic, presumption of equal shared parental responsibility when making parenting orders, generally obliges the court, when making a parenting order, to apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility: Act, s 61DA (1). This presumption does not apply where there are reasonable grounds to believe that a parent of the child (or a person who lives with such a parent) has engaged in abuse or family violence: Act, s 61DA(2).
[25] (2016) FLC 93-713.
Further, by s 61DA(3) of the Act, when the court is making an interim order, the presumption of equal shared parental responsibility applies unless the court considers it would not be appropriate in the circumstances to do so. In Saleh, the Full Court endorsed the importance of s 61DA(3) as applying to the making of interim orders, in particular in recognising that, because of the likelihood that there would be little uncontested evidence, this would make the application of the presumption and its rebuttal more difficult. For those reasons, where, on an interim hearing, reciprocal allegations of family violence are made and about which the court is unable to make any findings, it should instead be recognised that, absent such findings, it may not be possible to either apply the presumption or rebut it.[26] More recently, in Franklyn & Franklyn,[27] the Full Court, after referring to Saleh, stated that while the court must remain astute on an interim hearing to the potential risk of harm, and could not ignore serious allegations, but:
. . . remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything the mother alleged without regard for other evidence and the wider context.
See also Cao & Cao;[28] Sandwell & Sandwell.[29]
[26] (2016) FLC 93-713, [46].
[27] [2019] FamCAFC 256, [72].
[28] [2018] FamCAFC 252, [28] (Austin J).
[29] [2018] FamCA 1030, [20] (Austin J).
The principles stated in these authorities confirm that while contentious facts must not be disregarded, the court must remain alive to the controversies notwithstanding that on an interim hearing factual findings ordinarily cannot, and should not, be made. Those contentious facts must not be disregarded by reason that the ultimate resolution of those matters may have a significant bearing upon what orders ought to be made in the best interests of a child.
For those reasons, it is of importance to place the family violence allegations in their proper context, including that here the applicant advanced the position that there should be an order for equal shared parental responsibility, while the respondent sought an order for sole parental responsibility (but made no submissions as to why that ought to be so). Further, each of the parties sought orders that the children should spend time with each of their parents, including on alternate weekends and for half of school holidays. I have also referred above to the nature of the applicant’s perception of risk posed by the respondent towards the children as recorded in the IVO application. Objectively, those matters inform the nature of risk as the parents perceived it to be in this case.
I do not consider that it would not be appropriate to apply the presumption of equal shared parental responsibility to the parenting arrangements of these parties. The nature of the family violence allegations in this case do not persuade me to not apply that presumption.
Insofar as the applicant makes allegations of illicit substance abuse by the respondent including the use of ICE and growing marijuana, those matters do not loom large in the present case. The respondent also makes allegations of illicit substance abuse by the applicant and it may be assumed that each of them deny such allegations. These matters can be addressed at this stage by the testing regime which the order provides.
It was further submitted to be clearly in the children’s best interests to make an interim order for the sole use and occupation of the property as to do so would leave them in a secure environment, particularly at a time when their parents’ marital affairs were being resolved, and would also leave them in a familiar residence which is close to that of the maternal grandparents and relatively close to their schools. This was to my mind a dominant if not dispositive consideration in favour of the orders which have been made.[30] Put another way, a powerful consideration in favour of granting the application is the hardship to the children where I have determined they should live with the applicant and so retain the stability of the environment which continuing to reside there will provide.
[30] Mikele & Mikele(2008) FamCA 651, [29]-[32] (Cronin J).
In my view, it was not reasonable to expect the parties to both continue to remain in the property. The immediate needs of the children should be given priority at this time. I am not satisfied that the respondent has demonstrated sufficient hardship would flow from the refusal of an order in his favour for sole use and occupancy.
Although no submission to this effect was made, having regard to her accumulated superannuation, I am also less than satisfied that the applicant could not (in the current pandemic) obtain access to the funds necessary to afford rental accommodation. It is in these circumstances, coupled with the parties overall financial position, that the current interim order contains notations which contemplate that the parties might apply for an order for the sale of the property. The applicant has already indicated her consent to the adoption of that course.
Conclusion
Whilst this judgment addresses in some detail the reasons why interim orders were made granting the applicant’s sole use and occupancy of the property, an extensive series of other orders have been made, both with respect to parenting matters and directions, which would facilitate the parties in their attempts to resolve the matter as by a conciliation conference or the determination of their disputes at a final hearing. To those ends, orders were made for a hair follicle test so as to address questions of drug abuse, as were orders for the provision of a family report. Although I described in some detail the nature of the orders which were proposed to be made, the parties’ submissions were focused upon their immediate reciprocal objectives of securing an interim order for the sole use and occupancy of the property. In particular, while the orders which I have made in relation to the children’s spend time arrangements with their father are substantially modelled upon the minute of order which had been provided by Counsel for the applicant to the court and the respondent’s legal representative, those proposed spend time arrangements were not the subject of any submissions. It is clear that the parties may agree to vary those spend time arrangements by agreement in writing and if the children expressed wishes to spend a greater amount of time with their father, the parties ought to respect or at the least give substantial weight to those wishes.
For the avoidance of doubt, I also made orders which comprehend that, on reasonable notice, the parties might revisit the question whether there should be an order for the immediate sale of the property. I have done so in circumstances where, as presently advised, it does not appear realistic that either party has the capacity to retain the property. This is an issue upon which each of them may be well advised to reflect.
By way of postscript, after the interim orders had been announced, the solicitor for the respondent husband stated that the orders had produced the result that her client would, in effect, be required to vacate the property during the Covid-19 pandemic. Upon enquiry, Ms Rothschild agreed that as concerned the applicant this, in effect, was precisely what had happened as a result of the events occurring on 25 April 2020.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 21 May 2020
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