NAGGAR & NAGGAR

[2014] FamCA 1110

FAMILY COURT OF AUSTRALIA

NAGGAR & NAGGAR [2014] FamCA 1110

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the husband seeks the sale of the former matrimonial home – Where the wife seeks the husband be excluded from the former matrimonial home and that she live there alone with the children – Where the husband has established alternate accommodation  – Where the wife seeks the husband make mortgage payments and outgoings on the former matrimonial home – Husband’s application for the sale of the home dismissed – Order made that the husband make the mortgage repayments and the wife meet all outgoings.

FAMILY LAW – INJUNCTIONS – INTERIM PROCEEDINGS – Exclusive occupancy of the former matrimonial home where it was not reasonable, sensible or practical for the parties to continue to reside under the one roof – Where the children were being psychologically affected by the current arrangements – Where the husband had a greater capacity to reaccommodate himself – Order made that the husband vacate and be restrained from attending the former matrimonial home.

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the parties have arranged a week about arrangement -Where the wife currently resides in the former matrimonial home – Where the husband currently resides in the former matrimonial home each alternate week when he is caring for the children – Where the parties are in contention about alleged incidents of family violence – Where the husband raises issues about the wife’s mental status – Where it is determined the parties would be able to consult about major long term issues and reach a joint decision – Order made that the parties have equal shared parental responsibility – Husband’s proposal for the parties to remain living together under the one roof is not available after the exclusive occupancy order is made – Where the parties will live in close proximity – Order made that the children live with the wife in the former matrimonial home and spend substantial and significant time with the husband.

Family Law Act 1975 (Cth)

APPLICANT: Ms Naggar

RESPONDENT: Mr Naggar

FILE NUMBER: SYC 1914 of 2014

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd

SOLICITOR FOR THE RESPONDENT: Antunes Lawyers

Orders

1. The husband’s application for the sale of the property at A Street, Suburb N (“the former matrimonial home”) is dismissed.

2. I note orders 3 to 10 are made pending further order.

3. The husband pay regular repayments and any arrears in respect of the mortgage on the former matrimonial home, and the wife pay the regular outgoings and any arrears in relation to those outgoings on the former matrimonial home including council rates, water rates and insurance.

4. Within 14 days the husband vacate the former matrimonial home and be restrained from attending the former matrimonial home.

5. The husband and wife have equal shared parental responsibility for the children, J born … 2008 and M born … 2009 (“the children”).

6. The children live with the wife.

7. For the period commencing from the date of these orders until the commencement of the 2016 school year, the children spend time with the husband as follows:

   7.1.From 6.00 pm Friday to 6.00 pm Sunday each alternate weekend during school term;

   7.2.From after school or preschool until 6.30 pm each Tuesday and Thursday;

   7.3.For a period of one half of each term 1, term 2 and term 3 school holiday period, and in the event that the parties cannot agree as to which half of the holidays the children will be with them, then the children will be with the husband for the second half of the holidays in even numbered years and the first half of the holidays in odd numbered years;

   7.4.For a total period of two weeks in the Christmas school holidays  at the end of term 4 2014 provided that the two weeks be taken in two periods of no more than seven days each, with at least a period of one week between those periods;

   7.5.In relation to the Christmas holidays at the end of term 4 2015, for a period of two weeks and then a period of one week provided that these periods be more than seven days apart.

8. Notwithstanding the operation of the orders set out above, the children shall spend from 9.00 am to 5.00 pm on Mother’s Day with the wife and 9.00 am to 5.00 pm on Father’s Day with the husband.

9. Notwithstanding the operation of the orders set out above, the children shall spend time or reside with the wife from 10.00 am Christmas Eve until 10.00 am Christmas Day in odd numbered years, and from 10.00 am Christmas Day until 10.00 am Boxing Day in even numbered years, and the children shall spend time with the husband from 10.00 am Christmas Eve until 10.00 am Christmas Day in even numbered years, and from 10.00 am Christmas Day until 10.00 am Boxing Day in odd numbered years.

10. Notwithstanding the operation of the above orders, on each of the children’s birthdays the parent with whom the children are not living with or spending time with, shall spend two hours with the children if the birthday falls on a school day or five hours if the birthday falls on a day the children are not attending school or for whatever other period/s the parties agree.

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1914 of 2014

Ms Naggar

Applicant

And

Mr Naggar

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The wife seeks the husband be excluded from the former matrimonial home.

2. Both parties make interim applications for parenting orders in relation to their two children who are currently aged six and four years old. The husband also seeks an order for equal shared parental responsibility. The wife makes no application for equal shared parental responsibility.

3. The wife’s application is that the children primarily live with her alone in the former matrimonial home. The wife also seeks exclusive occupation of the former matrimonial home and that the husband vacate the home.

4. The wife seeks that the children spend time with their father for part of seven days in each fortnight (but only two overnights). Longer term, the wife would propose that the children’s time increase to time during part of eight days in each fortnight (three overnights) in 2016.

5. The interim orders sought by the wife are that the children spend time with their father each alternate weekend from Friday 6.00 pm to Sunday 6.00 pm and from after school or preschool until 6.30 pm each Tuesday and each Thursday. The wife also seeks orders in relation to holidays and special days.

6. The husband’s primary position is that the current arrangements continue whereby he is permitted to come into the house each alternate week and be primarily responsible for caring for the children in that week.

7. The husband’s alternate position, in the event that I concluded that it is not in the best interests of the children for their parents to continue to live under the same roof, is that the children either live with him primarily at the property which he otherwise rents on the alternate week, and spend the same time with the wife as she is offering him (each alternate weekend and on two occasions each week after school). Alternatively he seeks a week about arrangement whereby the children would live at his rented accommodation on a full week when they are with him, and live in the other week with the wife in the former matrimonial home.

8. In response to the husband’s oral applications in respect of those alternate positions, the wife indicated that if I did not exceed to her primary application, then her alternate application would be for the children to spend shorter times away from her in some type of three/three or four/four night arrangement.

9. Other orders were formally sought in relation to passports and overseas travel but those applications were not the subject of any submissions and were not pressed before me.

10. The husband also floated the idea that the wife could leave the home each second week when he is in the home and rent alternate accommodation given her weekly salary.

11. Somewhat inconsistently, the husband also makes an application that the former matrimonial home at A Street, Suburb N, which is registered 99 per cent in the wife’s name, be sold.

12. The wife seeks an order that the husband continue making mortgage payments in respect of the former matrimonial home and paying outgoings on the home.

THE HUSBAND’S APPLICATION TO SELL THE HOME AND THE WIFE’S APPLICATION THAT THE HUSBAND MAKE REGULAR PAYMENTS

1. On the face of the husband’s financial document, it seems that he is insolvent. The wife however says that there is yet to be a full disclosure by the husband of his financial position and an exploration by the wife of his financial position. Some basic facts in relation to his ability to service the mortgage on the former matrimonial home however are not controversial.

2. As indicated, the husband sought the sale of the former matrimonial home. The wife seeks an order that the husband continue to pay mortgage payments and outgoings on the home.

3. There are three major assets held by the parties. Apart from the former matrimonial home, the husband operates a business and a trust that he controls owns the real estate out of which that business operates. The property owned by the trust has a current value estimated by the husband in the sum of $980,000. The mortgage on that property is $743,600. The regular repayments in respect of that property are $2,135 per week. The mortgage payments in respect of the former matrimonial home are $590 per week.

4. The husband points to communications with Westpac which indicate that the bank is awaiting the outcome of these proceedings before making some decision about what future requirements they will place upon the husband. The document produced in evidence indicates that interest only payments have been approved up until 27 October 2014 but thereafter payments of principle and interest will be required by the bank. As is self-evident, if the husband sold the commercial property, he would discharge the substantial liability of $743,600 and have an amount of over $200,000 in capital available. He would also eliminate a weekly expense of $2,135, but may then have to pay rent.

5. In those circumstances, it is not appropriate to make an order at this time for the sale of the former matrimonial home. The husband’s stated level of gross income is $5,530 per week. The wife’s income is $1,257 per week.

6. I find on an interim basis that it is reasonable to require the husband to continue doing what he has been doing up until now, that is, to make regular payments in respect of the former matrimonial home. The wife can pay the outgoings on the former matrimonial home.

OCCUPANCY OF THE FORMER MATRIMONIAL HOME

1. There are two asserted incidents of physical violence. The parties disagree as to the details.

2. The wife says that in Easter 2013 when holidaying at Town G, the parties had an argument which ended in the husband pushing the wife violently against a wall by her throat. The husband does not directly deny the wife’s allegation. Instead he says that he went to comfort the wife who was vomiting in the bathroom but she became very angry towards him and started to punch and scratch him. The two versions are not inconsistent. The wife said that there was an initial altercation. The husband wrote to the wife’s mother asserting that the wife had kicked him.

3. The other allegation of physical abuse is set out at [57] of the wife’s affidavit. This is an occasion where a picture fell off a wall and the husband is alleged by the wife to have manhandled her up the stairs. The wife asserts that the parties’ son heard what was happening and was screaming hysterically in his room, and the parties’ daughter was screaming at the husband and trying to get him off the wife. The husband denies these allegations and the sequence of events as set out by the wife. The husband’s version describes the wife behaving badly and the children becoming upset and him attempting to calm her down. The husband says that he “restrained her”. He alleges the wife was kicking at him violently. He agrees that “I ended up forcing [the wife] on the stairs until she promised she would calm down as I was genuinely concerned for the children”. The husband agrees that K, an older child of a previous relationship of the husband, was shaken up by the events of that night. 

4. I am unable to make any findings in relation to controversial assertions of family violence in the confines of an interim hearing.

5. Having read the material I find that there is a conflictual environment in the household. I also accept that the youngest child exhibits sadness at preschool and there is some evidence to support the wife’s position that the youngest child is not coping well in the current situation. The husband seemed to accept that the youngest child was clingy but asserted that the youngest child’s clinginess was a result of her exposure to the wife’s mental status.

6. I reach the conclusion, as far as I can on an interim basis, that the children are being affected to some degree psychologically by the current care arrangements to which they are being subjected, and the continuing presence of their parents living under the one roof each alternate week.

7. The husband conceded that the atmosphere in the household was difficult but disputed that it was toxic. I am not in a position to make an assessment as to the current level of toxicity in the former matrimonial home. I conclude however that it is not reasonable, sensible or practical for the parties to continue to reside under the one roof.

8. The husband has re-established himself in alternate accommodation and has a greater capacity to move out of the former matrimonial home than the wife does. Considerations of hardship favour the wife. There is no indication that the husband’s alternate accommodation is significantly inferior to the accommodation offered in the former matrimonial home.

9. There is sufficient material for me to find on an interim basis, having regard to the means and needs of the parties, the needs of the children and the hardship to each of the parties, that it is appropriate for the welfare of the children (s 68B of the Act) and in the alternative, it is proper (s 114(1) of the Act), for the parents to cease living separately and apart on each alternate week under the one roof.

10. Given that the husband has currently established alternate accommodation, it is proper that he be the one to leave.

PARENTING

1. The parties separated under the one roof in January 2013. In around September 2013 the husband and wife entered into a “nesting” week about arrangement where one of the parties lived in rented accommodation outside the former matrimonial home each alternate week. The children remained at all times in the home.

2. The former matrimonial home had been placed upon the market for sale. In about March 2014 the wife resumed living full time in the home and indicated to the husband that she no longer consented to the sale of the home.

3. It is the wife’s position that she moved back into the former matrimonial home because the children, and particularly the younger child, was getting very distressed.

4. The husband currently, each alternate week, lives in a four bedroom rented property with his brother, his brother’s partner, and the child K.

5. Both parties have filed material that canvasses controversies which cannot be resolved in the context of interim proceedings. Both parties are in contention about alleged incidents of family violence. Both parties make assertions about the amount of time the wife is away from the home as a result of her employment. The husband makes a number of allegations of drug and alcohol abuse against the wife which are denied by her. The wife has provided evidence from two supporting witnesses that attest to her having a sober lifestyle. The wife makes an allegation by the husband in relation to drug charges. It was asserted by the lawyer for the husband that those charges were dismissed. Subpoenaed records are not yet available. None of this can be tested.

6. The wife has provided corroborative material from her employer indicating that at least for next year, she will be working 9.30 am to 2.30 pm in a flexible working arrangement, and I accept that corroborative evidence.

7. The husband also asserts that he has flexible working conditions.

8. Under any of the proposals, the children will continue to have a meaningful relationship with both of their parents.

9. The material suggests that for most of the children’s lives the wife has been their primary caregiver.

10. The husband raises concerns about the children being at risk in their mother’s care. On the day of the hearing, the lawyer for the wife provided the husband with a copy of a report from a consulting psychiatrist dated March 2013 (three months after the separation). That report indicated that she had some symptoms of bulimia, (the wife says at the date of the hearing she was symptom free), some anxiety and there may have been some borderline personality traits. The husband had annexed to his affidavit a note from the wife’s general practitioner dated 17 August 2013 which noted these matters. I was unsure as to precisely when the husband had an awareness of the wife’s condition. The psychiatrist who saw the wife in March 2013 opined that she would benefit from an antidepressant. The wife’s lawyer informed me that the wife had been prescribed an antidepressant by her general practitioner but she stopped taking it after a short period of time as the medication disagreed with her. It is to be noted that all of this happened around about the time of the separation. The wife is not currently seeing a psychiatrist.

11. The husband wishes a level of involvement with the children that would enable him to monitor the wife’s behaviour. The husband is not professionally qualified to monitor any condition the wife may or may not have. The frequency of his time with the children however on the wife’s proposal (time with the children on the whole or parts of seven days a fortnight), including his ability to telephone the children each day, will provide sufficient protection in the short term in respect of the concerns that he raises and if anything unexpectedly happens, he will be able to apply to come back to the court at short notice.

12. It seems there will need to be further exploration in relation to the wife’s mental status and the family consultant who saw the parties on the day has recommended that a Chapter 15 expert report be obtained for the final hearing from a child and adult psychiatrist.

13. I note that the wife at the time of the hearing had just returned from spending three weeks in the United Kingdom with the children with the husband’s consent. She had travelled with the children by plane to the United Kingdom where she spent time with her mother and sister. I accept the submission that that puts in some context the level of the husband’s apprehension in relation to the wife’s ability to care for the children.

14. The wife’s perception is that the children are now settled more since she has been living in the family home on a fulltime basis (as opposed to moving out every second week). I note that even in the week that the husband has been primarily responsible for looking after the children when the wife was living away from the home, the wife was attending the former matrimonial home almost daily. I also note that the husband rings the children almost daily when they are not with him.

1. There is no evidence of any view expressed by either of the children and in any event they are too young for their views to have any weight.

2. The wife’s parenting capacity was praised in a letter written by the husband prior to the separation which, amongst other things, indicated to the wife how well she had looked after the child K when he had been a member of the parent’s household. The children are not seeing K at the moment as much as they used to, but would see K more if the wife’s proposal or the husband’s alternate proposals are adopted.

3. The husband suggested that what the wife was proposing was a radical change. I do not agree with that submission. Given the recent history of a number of changes to the children’s arrangements, the effect of a further change as suggested by the wife is not a weighty consideration.

4. One inconsistency in the husband’s position is that he presses for a sale of the former matrimonial home whilst maintaining his primary proposal that he look after the children in the home each alternate week. Presumably if there was a sale he would press one of his alternate proposals for the children to spend time with him.

5. I note that longer term, the husband is considering whether or not he makes an application that the children ordinarily live with him (and he in fact made such an application in the alternative on an interim basis at the end of oral submissions).

6. There is an issue between the parties, which I cannot resolve, as to why the child K left the former matrimonial home (the wife asserting that it was because of the toxic atmosphere in the home; the husband asserting it was because of the wife’s behaviour as a result of her mental status).

EQUAL SHARED PARENTAL RESPONSIBILITY

1. The wife’s initiating application and her application for interim orders does not contain any application for an order about parental responsibility. The husband’s response seeks, both on a final and interim basis, an order for equal shared parental responsibility. Given the incidents of family violence, the presumption does not apply (s 61DA(2) of the Family Law Act 1975 (Cth)). On the very limited information that I have, which is untested, I am prepared on an interim basis to find the parties would be able to genuinely consult about major long term issues and reach a joint decision and that it is in the best interests of the children to make an interim order for equal shared parental responsibility.

BEST INTERESTS

1. Consequently, I need to consider whether or not equal time and, if not, substantial and significant time is in the children’s best interests and otherwise reasonably practicable.

2. The husband’s primary proposal for the children to be subjected to the parents’ continuing to live together under the one roof, is not viable given my decision about the occupancy of the home. That decision was in part, based upon a finding that the current arrangements was damaging the children psychologically.

3. The parties live in close proximity to one another which makes the arrangements proposed by the wife reasonably practicable. There was no evidence that the level of communication between the parties is so poor that any of the alternate proposals by either party would be eliminated on the basis of practicability.

4. Taking into account the s 60CC considerations discussed above, I find that it is in the children’s best interests, on an interim basis:

   53.1.Not to spend equal time with each of their parents;

   53.2.To live with the wife in the former matrimonial home;

   53.3.To spend substantial and significant time with their father in accordance with the wife’s proposal with a couple of minor exceptions as set out in the orders.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 8 December 2014

Associate: 

Date:  8.12.2014