Pitrec and Pitrec

[2010] FamCA 1231

FAMILY COURT OF AUSTRALIA

PITREC & PITREC [2010] FamCA 1231

FAMILY LAW – CHILDREN – Interim
FAMILY LAW – PROPERTY – Interim – Exclusive occupation

APPLICANT: Mr Pitrec

RESPONDENT: Ms Pitrec

FILE NUMBER: SYC 5873 of 2010

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 5 October 2010,
3 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Constantine G Pavlis & Co

COUNSEL FOR THE RESPONDENT: Mr Harper, Ms Christie

SOLICITOR FOR THE RESPONDENT: Byrnes & Cox Lawyers

Orders

1. That all existing orders in relation to the children:

   J born … February 2005

   A born … February 2009

   R born … February 2009

   (‘the children’) are discharged.

Pending further order:

1. That the children live with the mother at all times other than the periods specified in order 3, during which they will live with the father.

2. That the children live with the father during the following periods:

   3.1from 5:00pm on Friday until 9:00am on Monday each alternate weekend, commencing on 19 November 2010 with the exception of 25 and 26 December 2010

   3.2from 5:00pm on Wednesday until 9:00am on Thursday in each week

   3.3from 1:00pm on 25 December until 9:00am on 26 December 2010 and each Christmas period thereafter

   3.4for three (3) hours on each child’s birthday, being from 9:00am until 12:00noon unless J is at school, in which case the hours will be 4:00pm until 7:00pm unless the parties otherwise agree in relation to the children’s time with the father on their birthdays

3. 4.1     That the father collect the children from the mother at the front of … M Street at the commencement of all periods of residence with him.

   4.2That the father return J to school at the commencement of all periods of residence prescribed by orders 3.1 and 3.2 and then return A and R to the mother at the front of … M Street.

   4.3That the parties otherwise effect changeovers at the front of … M Street.

4. That the mother have exclusive occupation of the former matrimonial home at M Street in the State of New South Wales (‘the home’).

5. That the father make the following payments:

   6.1mortgage instalments, rates and insurance in respect of the home

   6.2loan instalments in respect of the motor vehicle used by the mother

   6.3a sum of $800 net per week to the mother

6. That these proceedings are transferred to the Federal Magistrates Court at Newcastle, to be listed before FM Coakes in Port Macquarie on Thursday 25 November 2010 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Pitrec & Pitrec is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5873 of 2010

MR PITREC

Applicant

And

MS PITREC

Respondent

REASONS FOR JUDGMENT

the proceedings

1. These proceedings concern interim parenting orders, competing applications for exclusive occupation of the former matrimonial home, interim financial relief and change of venue from Sydney to Newcastle.  The children of the parties are:

   J born in February 2005 (5)

   A and R born in February 2009 (21 months)         

2. The applicant father, Mr Pitrec, sought orders inter alia:

   ·that he have sole parental responsibility for long term decisions for the children

   ·that the children live with him

   ·that the children spend time with their mother each Saturday and Sunday under the supervision of her stepfather

   ·that he have exclusive occupation of the former matrimonial home at M Street

   ·that he pay the mortgage on the former matrimonial home

3. The respondent mother, Mrs Pitrec, sought orders inter alia:

   ·that the parties have equal shared parental responsibility for the children

   ·that the children live with her

   ·that the children spend time with the father each alternate weekend, every other Tuesday night and for half of all school holidays

   ·that the father be restrained from coming within 100 metres of the former matrimonial home

   ·that the father pay all outgoings on the former matrimonial home

   ·that the father make loan repayments in respect of the mother’s car

   ·that the father pay to the mother interim spouse maintenance of $3,000 per week

   ·that the proceedings be transferred to the Federal Magistrates Court at Newcastle for inclusion in the Port Macquarie circuit

4. At the outset I made it clear that I would not presume to tell the Federal Magistrates Court that the proceedings should be included in a particular circuit, in the event that I decide on a change of venue.  It is entirely a matter for my colleagues in that court.

Background

1. The father, who is 39, and the mother, who is 34, began to live together in 1996 or 1997 and married in 2003.  They both occupied the former matrimonial home when they each commenced proceedings on 16 September 2010.  The father filed his application in the Sydney Registry of the Family Court and the mother commenced her proceedings in the Federal Magistrates Court at Newcastle.

2. On 30 September 2010 the mother applied for an apprehended violence order against the father in the Local Court at Port Macquarie.  A provisional order was made and the father was required to vacate the former matrimonial home.  The mother’s application for an apprehended violence order was dismissed on 27 October 2010.  The father has not returned to the former matrimonial home and did not indicate where he currently lives at any stage in these proceedings.

3. On 5 October 2010 orders were made by consent, pending an interim hearing on 3 November 2010.  These orders provided that the children live with the mother and spend time with the father each alternate weekend and every other Wednesday night.  Without admission, each party was restrained from drinking alcohol while the children are in his and her care.  The father consented to orders that he pay the outgoings on the former matrimonial home, loan repayments in respect of the mother’s car and $800 net per week to her.

Parenting Issues

The Proposals of the Parties

1. The father proposed that he and the children live in the former matrimonial home.  He will continue to work in his profession and employ a nanny, Ms C, to assist with the care of the children.  She started work with the family as a cleaner for one day per week in about May 2008 and then took on the role of nanny for four days per week, after the birth of the twins in February 2009.

2. The father proposed that the children spend time with their mother under the supervision of her stepfather.  He maintained that they are unsafe in her care because she has a serious alcohol problem. 

3. The mother proposed that the children live with her in the former matrimonial home and spend time with their father each alternate weekend and every other Wednesday night. She is not in the paid workforce and would care for the children herself. 

Consideration of Parenting Issues

1. Each of the parties made allegations against the other of substance abuse.  In an affidavit the mother conceded that she abused alcohol after the birth of the twins in February 2009.  She maintained that she felt depressed and despondent and had difficulty with sleep deprivation.  In her own words she “turned to alcohol” at this time.

2. The parties’ second child, a daughter named P, was still-born in March 2006.  The mother said that the loss of P made her very anxious during her pregnancy with the twins.  She said also that she was very worried about her mother, who was diagnosed with cancer a few weeks before the birth of the twins.

3. The mother was admitted to a Clinic on 22 July 2009 with a “presenting problem” as follows:

   “admission of a 33 year old woman with three year history of alcohol dependence beginning in 2006 after a stillbirth.  Drank excessively for six months then abstinent for 9/12.  The birth of twins plus subsequent stress and sleep deprivation led to drinking again.  The pregnancy was difficult – suffered pre-eclampsia and help syndrome.  Prior to admission drinking 120g or more daily.  Other stressors include husband’s work [in his profession] and her mother’s breast cancer.”

4. The admitting doctor noted that the mother was a social drinker until her baby was stillborn.  He recorded that she stopped drinking when she became pregnant with the twins and resumed two months after their birth. 

5. The mother was discharged from the Clinic on 3 August 2009, after an 11 day admission.  She admitted that she had booked into a 21 day course but discharged herself early. 

6. It thus seems that the mother concedes two periods of problematic drinking.  In her affidavit of 3 November 2010 she deposed that she has not drunk alcohol since 5 October 2010 and that she currently has no substance abuse problem. 

7. The father swore that, on 20 October 2010, he attended the former matrimonial home to collect the children in accordance with the orders of 5 October 2010.  He claimed that the mother “appeared intoxicated”.  He alleged that he “could smell alcohol on her” and that “her eyes appeared glazed and her speech and movement were slow”. 

8. The mother’s stepfather was present at the former matrimonial home on this occasion.  He deposed that the mother “appeared to be very vague and she smelled like alcohol.  She was not wobbly on her feet but her behaviour was rather strange and she was talking in a very slow manner”.

9. The mother “emphatically” denied that she had consumed any alcohol on 20 October 2010 or at any time since the court appearance on 5 October 2010.  It is difficult to resolve this factual dispute in the context of an interim hearing, where this evidence was untested.

10. If the father was genuinely concerned that the mother was under the influence of alcohol on 20 October 2010, it is puzzling that he did not raise this issue with her directly or via the parties’ solicitors.  Instead, he waited almost two weeks until the interim hearing on 3 November 2010 and served the affidavits alleging that the mother was affected by alcohol on the afternoon of Friday 28 October 2010.

11. This approach is consistent with past actions on the part of the father which call into question the genuineness of his alleged concerns as to the quality of the mother’s care of the children.  On 24 September 2010, eight days after filing an application for orders that all of the children’s time with their mother be supervised, he left them alone in her care from 5:15am until 5:00pm.  On the weekend of 24 and 25 September 2010 he left the children alone with her from 5:20am on Saturday until 6:00pm on Sunday.  The father offered no explanation for this apparent inconsistency.

12. On 8 October 2010 the father sent a police officer to the former matrimonial home, with a request that he check on the children’s welfare, just before he collected them in accordance with the orders of 5 October 2010.  According to the mother the policeman made notes and told her that he saw nothing of concern.  The father produced no document or other evidence to the contrary.  The father did not explain why he found it necessary to send a policeman to the home just before he went there to collect the children.  It is tempting to think that he hoped that the officer would make some observation which might bolster his case.

13. The father continued to work in his profession after filing his application for orders that all of the children’s time with their mother be supervised.  The nanny last worked in the home on 3 September 2010, thus the father left the children in the mother’s sole care for some two weeks before he commenced proceedings.

14. Other than his suggestion that the mother “appeared intoxicated” on 20 October 2010 the father made no allegation that he has seen her in such a state since 4 August 2010.  There was no evidence from any other person who claimed to have seen her intoxicated since that date.  Interestingly, the mother’s stepfather did not allege that the mother appeared to be under the influence of alcohol on 20 October 2010.  He merely deposed to some observations as to her demeanour and a smell of alcohol on her.

15. The parties’ former nanny Ms C swore an affidavit in the father’s case.  Inter alia, she deposed that she found empty bottles of white wine, Smirnoff vodka and vodka drinks in cans in the home and in the mother’s car.  She referred to a number of occasions when she claimed to have observed the mother drinking alcohol. 

16. Ms C gave the mother a statement of her observations of her as a parent, as requested by her solicitor.  The statement read:

    “Question 1.  What her observations are of me as a mother and a parent?

    Answer:  My observation of [the mother] as a mother and a parent appears to be good.

    Question 2.  Her comments of his allegations of me unable to look after the children on my own. 

    Answer:  I can’t really comment on [the father’s] allegation of [the mother] unable to look after the children on her own.  While I am there approximately 8:30am to 3:30pm Monday to Thursday all seems to be normal.  After these hours I have no idea.”

17. Ms C claimed that she was “intimidated and bullied” by the mother when she made this statement.  She alleged further that the mother said to her “if you help me, you will still keep your job as I will keep living in this house”.   The mother claimed that Ms C was paid in cash by the father and may have been influenced to provide the affidavit to avoid being reported to the appropriate authorities.

18. Ms C was present at court on 3 November 2010 and was cross-examined but not on this significant inconsistency.  A further inconsistency in her evidence was that, in her oral evidence, she said that she last worked in the family home on 3 September 2010.  In her affidavit she said that she found empty bottles of vodka and white wine in the home in the first and third weeks of September 2010.

19. The mother alleged that the father has a history of excessive alcohol consumption.  She claimed that he became involved in a fist fight with a stranger during a family holiday in Fiji in August 2010, while “heavily intoxicated”.  The father gave his account of this incident in an affidavit sworn on 5 October 2010 but, again, he did not deny that he was under the influence of alcohol. 

20. The mother alleged that the father was “extremely intoxicated” early in August 2010, after attending a night-time poker game at the home of a friend.  He gave his version of this incident but did not deny that he was under the influence of alcohol.

21. The mother also alleged that the father is a regular smoker of cannabis, a claim which he denied.  It is noteworthy that she failed to raise this allegation until she swore an affidavit on 3 November 2010. 

22. The father alleged that J has a “consistent pattern of late arrivals” at school, which has “become more pronounced” since he left the former matrimonial home on 30 September 2010.  He annexed to his affidavit of 28 October 2010 documents purporting to be “attendance reports” from J’s school for the period 1 January 2010 to 22 October 2010.

23. There were numerous late arrivals prior to 30 September 2010 and four such occasions during the first three weeks of October 2010.  As similar numbers of late arrivals occurred before the father left the home, this contention seems unjustified. 

24. The father will entrust the daily care of the children to a paid nanny while he continues to work.  On the other hand, the mother is available to care for them herself.  The impact on the children of being separated from their mother is unknown but unlikely to be to their benefit.  They have always been in her care, albeit with the assistance of a nanny.

25. It is my view that it would be inappropriate to apply the presumption of equal shared parental responsibility in these interim proceedings:  section 61DA(3).  Each of the parties made allegations of substance abuse, which go directly to the question of parental capacity.  There is no opportunity to test these allegations in an interim hearing.

26. It is thus unnecessary that I consider whether the children should spend equal or substantial and significant time with each parent.  I am able to make interim parenting orders which are governed by their best interests.

27. In my view, there are reasons to doubt the extent of the father’s concerns about the quality of the mother’s care of the children.  I have referred above to my reasons for these reservations.  The mother maintains that she is no longer abusing alcohol.  The only evidence that she has been under the influence of alcohol since early August 2010 came from the father, who has a vested interest in making this allegation.

28. The children are accustomed to being in the day-to-day care of the mother.  A change to the primary care of the father would be a major alteration to the pattern of their lives, albeit that his proposal involves a familiar nanny.  The fact is that the father does not propose himself to undertake the majority of their care.

29. For these reasons it seems to me that the children’s best interests will be met if they remain in the primary care of the mother and spend regular time with the father.  I will continue the existing interim order which restrains each party from consuming alcohol while the children are in his and her care.

Exclusive Occupation and Interim Financial Issues

1. A significant consideration in the determination of the competing applications for exclusive occupation of the former matrimonial home is the fact that the children will spend substantially more time with their mother than with their father.  They are accustomed to living there and all of their belongings are in the home. 

2. The father has demonstrated that he is capable of arranging alternate accommodation.  He has lived somewhere other than the former matrimonial home since 30 September 2010, although he chose to provide no information as to his housing to the court.  He gave no evidence of any cost to him of his current alternate accommodation.

3. The father annexed to his affidavit of 12 October 2010 copies of advertisements for various rental properties.  These advertisements indicate that rental prices in the area range from around $250 per week for a two bedroom unit to $450 per week for a large, four bedroom home. 

4. The father has been able to maintain payments in accordance with the interim orders made on 5 October 2010, while living away from the former matrimonial home.  It is now submitted that he is unable to maintain these payments unless he occupies the family home.

5. No analysis of the father’s financial position was offered which supports this submission.  His Financial Statement sworn on 9 September 2010 indicates a surplus of $511 per week of gross income of $4,103 over fixed expenses of $3,591 per week.  I assume that the sum of $982 gross per week paid to the mother is an expense of the father’s practice and not an item of personal cost from his taxable income.

6. In the absence of any other evidence I propose to continue the orders of 5 October 2010.  No child support assessment has yet issued and these payments would ultimately be reflected in the amount the father is required to pay.

Change of Venue

1. The mother alleged that it is very inconvenient for her to travel from the north coast to Sydney.  Her solicitor practices in Port Macquarie and both parties live in that area.  All of the parties’ assets are located on the north coast.  She has ascertained that the Federal Magistrates Court at Newcastle has a circuit in Port Macquarie.  Newcastle is closer to Port Macquarie than is Sydney.

2. On the face of the father’s Financial Statement, the parties have little net property and he has superannuation with a gross value of approximately $107,000.  As yet there is no valuation of his professional practice but I doubt that such evidence would alter significantly the parties’ net asset position.  It thus seems that the property component of the proceedings is well within the jurisdiction of the Federal Magistrates Court. 

1. The only connection which the proceedings seem to have with Sydney is that the father’s solicitor practices in Drummoyne.  In my view, that connection is insufficient to keep the proceedings in Sydney.  I will order a change of venue as sought by the mother.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 November 2010.

Associate:     

Date:              16 November 2010