MG & JGG
[2004] FMCAfam 300
•24 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MG & JGG | [2004] FMCAfam 300 |
| FAMILY LAW – Children – interim residence – exclusive occupation – injunction. |
Family Law Act 1975
Scholte (2002) FamCA 59
Davis v Davis (1976) FLC 90-062
Page v Page (1981) FLC 91-025
Sieling v Sieling (1979) FLC 90-627
Bassett v Bassett (1975) 1 All ER 513
Davis v Davis (1983) FLC 91-319
Cowling v Cowling (1998) FLC 92-801
K v K (2003) FMCAfam 214
| Applicant: | M G |
| Respondent: | J G G |
| File No: | PAM1649 of 2004 |
| Delivered on: | 24 May 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 24 May 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Sansom |
| Solicitors for the Applicant: | Smythe & Mallam |
| Solicitor Advocate for the Respondent: | Ms C Grew |
| Solicitors for the Respondent: | Harman & Co. |
ORDERS
Pending further order:
That “the children” Luke born in 1992 and Jake born in 1995 live with the applicant wife.
That the children have contact with the respondent husband as follows:
(a)From after school Friday until start of school Monday each alternate week.
(b)Each week from after school Wednesday to the start of school Thursday.
(c)For the first half of all short school holidays with the exception of the 2004 school holidays.
(d)In the June/July 2004 School holidays from the day after the children return from Fiji until 5.00 pm on the day before school resumes.
(e)For the first half of the December/January school holidays in 2004/05
(f)Of the weekend that includes Father’s Day.
(g)For three hours on each child’s birthday.
(h)By telephone at all reasonable times.
(i)In the event that a contact weekend falls adjacent to a public holiday contact is extended to include the public holiday.
(j)At such other times as the parties agree.
Within four (4) weeks the respondent husband shall vacate the former matrimonial home at Penrith and the applicant wife shall thereafter have exclusive occupation of the said property.
Upon vacating the former matrimonial home the respondent husband may remove his personal belongings and a selection of the household goods and furniture agreed between the parties.
That the parties shall make arrangements to attend confidential counselling with an agreed agency which counselling shall include the children if the counsellor deems it appropriate.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
The applicant files and serves an amended application with 14 days.
The respondent files and serves an amended response within a further 21 days.
The matter is listed for mention before me at 10.00 am on 2 July 2004.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1649 of 2004
| M G |
Applicant
And
| J G G |
Respondent
REASONS FOR JUDGMENT
The application
These reasons were delivered orally.
This is an application by M G (“the applicant”) filed 26 March 2004 in which she seeks interim residence of the parties' two children and an order for sole occupation of “the former matrimonial home” at Penrith. If she is successful, the applicant proposes that the children will have significant contact with their father. The orders sought are set out below.
1. That the children of the marriage namely:
(a) Luke born in 1992; and
(b) Jake born in 1995 live with the applicant wife.
2. That the applicant wife be granted the sold responsibility for the day to day care, welfare and development of the said children.
3. That the respondent husband have contact with the said children, such contact to include:
(a)Each alternate weekend from 5.00 pm Friday to 7.00 pm Sunday;
(b)After school Wednesday to the beginning of school Thursday;
(c)The first week of all short school holidays with the exception of the 2004 June/July school holidays;
(d)The first half of the December/January school holidays in each alternate year beginning in 2004;
(e)The second half of the December/January school holidays in each alternate year commencing in 2004;
(f)The respondent husband’s contact (if any) will suspend from 9.00 am on 23 December to 9.00 am on 28 December in each alternate year commencing in 2005;
(g)From 5.00 pm on the Saturday preceding Father’s Day to 7.00 pm on Father’s Day if it does not fall on a contact weekend;
(h)The respondent husband’s contact shall suspend from 5.00 pm on the Saturday preceding Mother’s Day to 7.00 pm on Mother’s Day if Mother’s Day falls on a contact weekend.
4. That the applicant wife have the sole occupancy of the former matrimonial home at Penrith and the respondent husband shall remove himself from the property within 7 days of the date of these orders and shall not return to the property.
During opening addresses the court inquired of the applicant’s counsel whether the applicant intended to continue to live in the former matrimonial home if her bid for exclusive occupation failed. The court was informed that if the applicant failed in this regard, she intended to leave the home and hoped to take the children with her.
J G G, (“the respondent”) filed his response on 20 May 2004. It is his case that the court should decline to make any parenting or occupation orders at this time. The respondent contends that the family co-exists reasonably comfortably in the former matrimonial home and that the parties and children should have more time to address separation issues. The respondent contends that these issues should be dealt with on a final and not an interim basis. If this argument fails to find favour with the court, the respondent proposes that the parties care for the children week about. This would be implemented by the parties living in close proximity to each other and the children moving between their parents' homes. During submissions an alternate scenario involved the children living in the former matrimonial home and the parties moving in and out each alternate week. If the court does make orders the respondent proposes that the parties would have contact with the children on special occasions.
Short history
The respondent was born in 1961 and is 42 years old.
The applicant was born in 1964 and is 39 years old.
The parties commenced cohabitation in 1986 and were married on
9 June 1990.
There are two children of the marriage. Luke (not his real name) who was born in 1992 and Jake (not his real name) born in 1995 (“the children”).
The parties separated under the one roof on 28 March 2003. Since separation the parties and the children have continued to live in the former matrimonial home.
On 26 March 2004 the wife filed an application for parenting orders. Although the parties have significant assets and have not yet resolved how these assets should be distributed neither has applied for orders pursuant to s.79 of the Family Law Act 1975.
The relevant law
The wife contends that her sole occupation application is an injunction for the welfare of the children made pursuant to s.68B(1)(c)(i). This is a wide-ranging injunctive power limited only by the requirement that the order is "appropriate for the welfare of the child". No claim is made by the wife that the order sought is necessary for her or the children’s personal protection. The provision is rarely used and where used, one predominantly sees it used in cases where there are allegations of family violence, or concerning the exercise of the court’s welfare power. Occasionally as an alternate for a specific issues order, for example name change. The injunctive power in s.68B(1)(c)(i) involves restraining a person from entering or remaining on a specified place; relevantly the former matrimonial home. The applicant does not seek to restrain the respondent from entering the former matrimonial home nor indeed from remaining there should he do so. Her contention is that she should live there and he should not.
Absent allegations of risk, which feature this case fortunately does not have, it seems that the legislative purpose of s.68B(1)(c)(i) concerns issues other than occupation of the former matrimonial home.
There is a long line of authority dealing with the criteria courts should have regard to when determining an application for occupation of a family home based upon s.114(1). This is the appropriate section to use when one is concerned about occupation of a family home in circumstances where there are no allegations of violence or risk.
The most recent decision that the Court was able to locate concerning exclusive occupation is Scholte (2002) FamCA 59 (unreported). There the Full Court of the Family Court commented that the criteria to be applied when determining a sole use application are surprisingly vague. The Full Court analysed earlier decisions including Davis v Davis (1976) FLC 90-062 and Page v Page (1981) FLC 91-025. In Page v Page the Full Court cited was approval the decision of Justice Cumming Bruce in Bassett v Bassett (1975) 1 All ER 513 at 520 where his Honour held:
“In my view the approach of the Court to these cases of application to expel a spouse from the matrimonial home should be strictly practical having regard to the realities of family life. Where a mother is looking after a child or children it is necessary to examine, with the utmost care whether it is really practicable for the husband and wife to continue to live in the matrimonial home. I extract from the cases the principle that the Court will consider with care the accommodation available to both spouses and the hardship to which each will be exposed if an order is granted or refused and then consider whether it is really sensible to expect a wife and child to endure the pressures which the continued presence of the other spouse will place on them. Obviously, inconvenience is not enough. Equally obviously, the Court must be alive to the risk that a spouse may be using the instrument of an injunction as a tactical weapon in the matrimonial conflict. In proceedings pending suit it is unlikely that the Court will be able to predict who will be living in the matrimonial home after the problems of custody, finance and property adjustment have been determined. Where there are children whom the mother is looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents as the long term effect on a child is liable to be of the utmost gravity. This factor ought to weigh at least as heavily in the scales as the personal protection of the parent seeking relief.”
In Scholte the Full Court referred to Davis v Davis (1983) FLC 91-319 where Baker J at 78-170 cited with approval Lindenmeyer J in Price v Price, (unreported 12 July 1982) where his Honour held:
“Page's case demonstrates a softening of the Court's attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party or that there has been some conduct by the other party which justifies his exclusion from the home. 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 or sensible or practicable to expect them to continue to remain in the home together.”
Finally the Full Court referred to the oft quoted passage from Sieling v Sieling (1979) FLC 90-627 where the Full Court held:
“The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant's interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party”.
In Scholte the Full Court concluded:
“In this case the evidence was of a dysfunctional family home life, with tension and discomfort, especially for the adult child, and to a lesser degree for the 15-year-old. It would be unlikely that the mere existence of tension and argument in the home, short of unacceptable conduct or a clear detriment to the welfare of a child, would lead us to exclude an owner of the home from the lawful occupation of his or her own home. This would be especially true if there was no immediate viable alternative accommodation available. But we were not the ones who were asked to exercise the discretion.”
Drawing from these cases, it seems that there are four factors that a court would usually have regard to when determining applications for exclusive occupation. These include the means and needs of the parties, the needs of the children, the hardship to either party or the children and, where it is relevant, the conduct of the parties. Depending on the circumstances of the family, different factors will attract different weight. There is therefore no onus on an applicant for an order for exclusive occupation to demonstrate irrational or awful behaviour by the party who it is sought to exclude. The court will examine the entire families’ circumstances and determine, whether on the facts of the particular case an order is warranted. Essentially, the court must ensure that any order is proper and that in each case it delivers individual justice.
The applicant seeks an application for interim residence. The court invited submissions concerning in which order the application for interim residence or exclusive occupation should be determined. It is something of a dry argument. The husband's solicitor referred me to a decision of Federal Magistrate Scarlett in K & K [2003] FMCAfam 214 (unreported) in which his Honour determined that the court should decide the issue of occupation of the family home first and only then the issue of interim residence and spouse maintenance. In that case Federal Magistrate Scarlett determined that the outcome of the exclusive occupation application would significantly influence the concurrent applications. The rationale appears to be that unless a party is required to leave the home or is leaving it, there may be no need for the court to determine interim residence of any children. Whilst that may have been an appropriate approach in that case, here there is a genuine dispute concerning interim residence. The applicant made it clear through her counsel that if she fails in her application for exclusive occupation of the family home, she plans to vacate and wants to take the children with her. Thus, it seems that the interim residence application cannot be avoided. As the resolution of that issue is likely to influence the outcome of the application for exclusive occupation it will be determined first. The principles that determine the adjudication of interim parenting matters are reflected in a long line of authority; most recently stated in Cowling v Cowling (1998) FLC 92-801. Those principles are well known and do not need restating here. The Full Court of the Family Court there identified that the overriding principle is that the best interests of the child are the paramount consideration.
The families’ circumstances
Since 1990 the husband has been self-employed, running a business that manufactures, sells and installs roller shutters. This has been a family venture in which the parties and the respondent’s brother have been the sole directors and shareholders. From its inception the business was conducted from the family home at Penrith. During 1997 the business was relocated to industrial premises at St Mary's. St Mary's is quite close to Penrith. Whilst the business was conducted from the family home, the respondent was able to be actively involved in the children's care in the sense that he worked flexible hours and in quiet times was able to be at home. However, the 1997 move suggests that the business was expanding and had outgrown its capacity to be conducted from the family home. Until about April 2004 the respondent was primarily responsible for sales and helped measuring up the jobs and administering the business. I infer that the growth in the business is due in no small part to the respondent's active involvement in its development.
The applicant stopped full time work when pregnant with Luke. Although she continued to perform paid work one day a week in her father's business from that time she was primarily involved as a full time parent and homemaker. The applicant stayed at home until both children started pre-school. Each child started pre-school the year immediately preceding kindergarten. The children attended pre-school three days a week. Once they started pre-school the applicant started working in her sister's business where she works two or three days each week. Both boys attend a private Catholic boy’s school in Penrith. Once the children started school, the applicant made arrangements with other parents for car-pooling. This way the parents share between the car poolers, responsibility for driving the children to and from school. The applicant did her share of the driving, taking the children to school and also collecting them in the afternoon. This meant that the children left home by car in the morning and returned home by car in the afternoon. On the days when the applicant was driving, she left work early enough to enable her to collect the children from school at 2.30 pm and then took them home after she dropped the other children to their homes. When other parents were collecting the children the applicant ensured that she was home in time to receive the children in the afternoons. Once home, she was primarily responsible for settling the children into homework, unpacking from the day, preparing the evening meals and basically settling the family down for the evening. Once the children started school the applicant took them to mass on Sundays: not every Sunday, but mass was a reasonable part of their routine.
The respondent did a share of the driving but the evidence does not suggest that his role in taking the children to and from school or for the management of the home was anywhere near as extensive as the applicant's was. The respondent describes sharing the cooking “particularly the Sunday roast”. He attended school activities and as the children got older was increasingly involved in their extra curricular sporting activities.
Recently, both boys have become interested in rugby league. This involves training sessions two afternoons each week. Luke trains at Windsor and is delivered there by a school friend’s mother. On Wednesday evenings the boys have swimming training at Penrith Swimming Club. This is an activity that the family enjoy together. On weekends the respondent operates a Grass Carts business, which he conducts on 32 acres the parties own at Kurrajong. Apparently customers bring grass billy carts and trail bikes that they ride around. On those weekends when the respondent attends the business he usually takes the children and some of their friends. The children take their trail bikes and spend the hours that their father is at the site in his company and out on the grounds.
This is the essential arrangement established prior to separation and has continued since the parties separated.
At separation, the respondent moved out of the matrimonial bedroom. Since then the parties have had different bedrooms in the home. The overall tenor of the evidence is that the parties and children have managed this transition well. The parties have had civilised discussions concerning their future, not only the arrangements concerning the children but also asset distribution.
Early this year the applicant discovered that the respondent had established a new relationship. With this discovery, tensions in the home increased. On 16 February 2004 the applicant withdrew $50,000 from a business account without the respondent's prior knowledge. It was a provocative action and not surprisingly tensions in the home increased even further. The respondent has attempted to have rational discussions with the applicant concerning the withdrawal of funds from the business to no avail. The applicant retains the moneys and has told the respondent on a number of occasions that she needs these funds if she is to move out of the family home. On 25 February 2004 the respondent’s solicitors advised the applicants solicitors that the respondent’s brother was seeking to resign as director of JG and MG Industries Pty Ltd because of the applicant’s actions. Essentially the letter advises that the applicant’s actions are harming the business. Coincidental with this escalation in tensions in the home, the applicant stopped cooking, cleaning or performing any significant household tasks for the respondent. He has become increasingly self-sufficient in the home and without apparent argument, completes for himself those tasks that the applicant no longer performs.
Prior to January 2004 the children had not been intimately involved in discussions concerning post-separation living arrangements. Luke has remarked that he hoped that the parties might establish a shared 50-50 living arrangement. However there is little detail in the affidavits concerning what discussions, if any, the parties have had with the children about their living arrangements long-term. Recently this situation appears to have changed. The catalyst for the change is that both parties realise that the time is coming when they will decide and implement long term arrangements. Thus both have started discussing possible alternate scenarios with the children.
In her affidavit the applicant deposes:
17. The respondent husband sat the children down at around 6.30 pm on 11 February, 2004 and said to them:
“This is a family meeting but mummy has decided not to join us”
I went out the back of the house but left a tape recorder running. I have the tape of that conversation in my possession. The conversation between the respondent husband and the children continued:
Mum doesn’t want to be involved in this family meeting because she is going to her solicitor to sort it out and what it means for you is that mummy is going to be angry and daddy is going to e angry and there’s going to be lots of arguments and there is going to be lots of fighting and there is going to lots of problems because we are involved with solicitors and courts. Okay. Now, what I wanted to ask you is what do you want?? Daddy or daddy and mummy or mummy to move. What do you want to do?? When we go to solicitors, what they want to do is try and separate me from you boys and also because mummy doesn’t work … bottom line is we’ll lose a few houses so as to today, Kurrajong is gone. Okay. So as of today we … got to happen because mummy and I can’t sort it out between ourselves that’s the first thing that’s got to go because daddy’s … there will be other things as well we will probably lose … or Manly depending … I don’t know. Depends on how much court action and how much arguments there are how much problems there are. Well, what do you want us to do? What do YOU want us to do. I’m asking you because I think that if mummy and I sort it out between ourselves then it wouldn’t be as bad for you boys is the first thing, you could share your time with both of us where if it goes to court I might not be able to see you. I might only have you once a month. The other thing is that obviously if it goes to court you can’t hold onto that … the property, because there is going to be no one to pay for it anyway. What do you want us to do? What do you boys want us to do. Do you want mummy and daddy to try and sort it out so you can live with both of us half of the time and we can try to hold on to things or do you prefer to let mummy do what she is going to do and what will be will be???”
18. The respondent husband continues to reside in the home. This is a situation which is difficult and emotionally taxing. The respondent husband repeatedly harasses me each day by continually talking about property settlement and the children. The respondent husband has repeatedly said to me:
“ I will only move out if you do what I want, 50/50 on the kids and 50/50 on the property”
19. The respondent husband is involving the children in the family law matter by discussing the situation with them, telling them he will be poor, that I will take them away from him and that they will not be able to go to the beach or the property at Kurrajong. The respondent husband cries when he speaks to the children. It is distressing for the children and an unnecessary emotional burden for them”.
In relation to these allegations it cannot be ignored that the respondent denies harassing the applicant in relation to property adjustment and the children. The respondent says that he does not recall making this statement to the children taped by the applicant. I accept the applicant's counsel's submission that an assertion that one does not recall is quite different from a denial that something did not occur. It seems probable that some, at least, of the recorded discussion between the children and their father did take place.
The respondent deposes that he has had a number of discussions with Luke concerning the child’s wishes. At paragraph 22 of his affidavit he says:
“22. Towards the end of last year Luke raised the issue with me on three or four occasions and said words to the effect of, “Dad some kid at school go half the week to their mum and half to their dad… but there is another kid who goes one whole week to his mum and one week to his dad…I think that’s a better idea and that’s what I’d like to do.”
At paragraph 37 of his affidavit the respondent refers to the children starting to discuss concepts such as “primary carer”. The clear inference is that the applicant has discussed post-separation arrangements with the children such that the children have started using language, which can properly be regarded as the domain of family lawyers. This suggests that having taken advice, the applicant has decided that she will have discussions with the children about how it is a court would make decisions concerning the children's future living arrangements.
Disagreements have started in relation to arrangements for the children on weekends and taking them to and from school. It could not be said, nor is it contended, that the situation in the home has reached a state of crisis. The description that both parties give is of a family under stress. It is not a situation where the phrase “intolerable circumstance” could be appropriately used to describe the home environment. However it is described the situation in the home is deteriorating not improving. This is an important matter that carries significant weight.
It is common ground that both parties agree that the marriage is at an end. This is an important matter that carries significant weight. Until recently, the parties have been able to conduct their affairs and home life avoiding the necessity for major change. Neither party has firmly decided what arrangements should be made on a final basis nor attempted to implement them. The applicant has decided that she can no longer live in the home if the respondent also lives there. This is factor that carries significant weight. Because the parties have not reached an agreement about what they should do, the applicant asks the court to decide for them. Although the respondent wishes it were different, the reality is the time has come to address the next stage of separation.
The court cannot force the applicant to remain in the family home. If she wishes to depart she is entitled to do so.
The parties have acquired significant assets. They appear to agree that the gross asset pool is about $1.8 million and that their liabilities are between about $650,000 and $730,000. At this stage neither has had the opportunity to obtain valuations of the family business and it may be that the asset pool is larger than either party presently asserts. The structure of the parties’ assets is relevant. It appears that the parties property comprises the former matrimonial home, a rented property at Penrith, an investment unit at Manly, acreage at Kurrajong and the roller shutter business.
Applying the law to the facts
It appears quite clear that the applicant has been the children's primary care giver. From Luke's birth she has been available to the children at all times other than when they have been at school or pre-school. The parties appear to have structured their arrangements so that the applicant was able to be, from the children's point of view, a full time parent and homemaker. They were able to benefit from their mother's primary care. Because their father diligently attended the family business he provided the financial substratum that enabled the children to have the benefit of a full time parent.
Both parents agree that the children wish to have a continuing relationship with both parents. It is implicit in both parties' approach to these proceedings that they agree that the children are strongly attached to their mother and father and vice versa. The children's relationships with each other and with their parents are the critical relationships that each of them has. It is contended for the respondent that at least Luke, and probably both children, wishes to have a 50:50 living arrangement so that they have maximum time with both parents. It is contended that this is both fair and, as far as possible, the continuation post separation of pre-separation living arrangements. The only way pre-separation living arrangements can be maintained is if the children and both parents continue to live in the family home. Whatever happens, that outcome is not achievable because the applicant contends she can no longer live in the same home as the respondent. Change is forced upon the parties and the children. The court does not know enough about the strength of the children’s wishes, the influences that may have been brought to bear upon them, if any nor the children’s capacity to understand the nuances of their parent’s competing proposals to give their wishes significant weight at this stage.
There is no doubt that both parties are capable and loving parents. Each of them contributes to the children's emotional, psychological and intellectual well being. There are no risk issues that either party contends should drive the outcome of these proceedings. The key factor to which the court gives significant weight is that the applicant has been the children’s primary carer. Since Luke's birth she has been primarily responsible for the children's care day in and day out. Her care has been complemented by the respondent’s active involvement in the children's lives. But with respect to him, his argument that he has simultaneously managed and grown a viable family business whilst at the same time had at least equal care for the children and the home, does not appear credible. There would need to be more compelling evidence before the court could make that finding. Thus the applicant will have an interim residence order in her favour.
The case law tends to emphasise that as far as possible, courts should impose minimal change on children. Separation is a time of great anxiety and in most families, great distress. Forcing more change than is necessary upon children increases the stress and distress that they will feel as a consequence of the break-up of their family. The significance of this is that as far as possible these children should be able to remain in the family home and continue their relationships with their parents in a structured and organised fashion. They need to be freed from the tension developing in the home as far as possible.
Having found that the children should continue to live in the home and with the applicant the court must consider whether this means that the respondent should leave the home. If this were a family of limited financial means where ordering one of the parties to leave the home would mean that that person was, in effect, homeless or deprived from access to a significant portion of the family assets, then it is unlikely that the application for exclusive occupation would have succeeded. In the decided cases the courts refer to the means and needs of the family and to the realities of family life. Here the parties have sufficient means to enable them to live in close proximity to each other and for neither party, nor the children, to live in parlous circumstances. It cannot be the case that faced with reasonable and sensible options the court would refuse to make orders taking advantage of those options until the family had descended into an intolerable situation. The family has avoided chaos thus far because as best they can the applicant and respondent have been able to avoid, themselves, dealing with the next stage of separation. They cannot avoid it any longer. The applicant is insistent that the parties can no longer live together and in circumstances where both agree that the marriage is at an end, it is now proper to order the respondent to vacate the home. This will create a degree of hardship for him because it will deprive him of the amenity of his own home that he has enjoyed for many years. He will see it as a hardship that he is unable to see the children every day, as he and they have been able to enjoy until now.
However, leaving both parents in the home whilst they negotiate the adjustment of property and future living arrangements for the children is likely to result in an escalation of tension between the parties which neither is likely to be able to protect the children from. The children should be protected from the tensions that are likely to escalate. The best way that can be achieved is if the children live with one parent and have significant contact with the other.
So that it is clear there are no aspects of the respondent's conduct, in terms of his dealing with the applicant, that drives this outcome. This is a pragmatic decision predicated upon the fact that the marriage is at an end and that it is time for the parties to move on. The respondent contends that if he leaves the home then there should be a shared care living arrangement. His notion of shared care is 50:50 with the children dividing their time equally between their parents. This is not a living arrangement that the parents have implemented previously. It may be that long term this is a sensible arrangement but the court would need to know much more about the parties and the children before it could make the order contended by the respondent.
The approach taken is to put in place a reasonable structure that enables the children to live in the home primarily cared for by their mother and having substantial contact with their father. This is consistent with the approach proffered by the applicant in her application, adjusted slightly because of the children’s ages and that the children need a little more contact with the respondent than the applicant proposed.
Balancing all of these factors, I am satisfied that the orders that I will make are orders that are in the best interests of the children and as far as the injunctions are concerned, are the proper orders to make pending further order.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 21 June 2004
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