R & R

[2005] FamCA 1415

[2005] FamCA 1415

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
TOWNSVILLE
HELD AT CAIRNS     No. (P) TVF 236 of 2005

BETWEEN:
  R
  Applicant Father

AND:
  R

Respondent Mother

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY AT CAIRNS

Date of Hearing:                 9 August 2005.  

Date of Orders:                   9 August 2005.

Date of Reasons:              8 September 2005.

Appearances:  Mr. Chris Wright, Solicitor, of Murray Lyons Solicitors of 111 Lake Street Cairns, Qld 4870 appeared for the FATHER.

Ms. Nerida Wilson, Solicitor, of The Law Office, 91-93 Grafton Street, Cairns, Q. 4870, appeared for the MOTHER.

Name of Case:  R AND R
File Number:  TVF 236 of 2005
Date of Hearing:                   9 August 2005
Date of Orders:  9 August 2005
Date of Judgment:                8 September 2005
Coram:  Carmody J

Catchwords:  FAMILY LAW – CHILDREN – Residence – Orders – Interim orders – Exclusive use and occupation of the former matrimonial home

Legislation:  Family Law Act 1975 (Cth), ss 65E, 68B, 68F(2), 114(1)
  Family Law Rules 2004 (Cth), rr 5.08, 5.10

Cases considered:                  Cilento and Cilento (1980) FLC 90-847

Cowling v Cowling (1998) FLC 92-801

F and S (2005) FLC 93-211
  J v W (1999) FLC 92-858
  Rowe and Rowe (1980) FLC 90-895
  S and S [2002] FamCA 59

The parties commenced cohabitation in 1999, married in 2002 and separated in 2005.  There were two children of the marriage aged 4 and 2 at the interim hearing.  The father also had two children, aged 7 and 6 respectively, from a previous marriage.

Six weeks prior to the hearing, the mother left the matrimonial home, leaving the parties’ two children living with the father.  The mother did not see her children until 3 weeks later.  The mother alleged that the father violently forced her to leave the matrimonial home, and that the due to the husband’s violence and drug-use, it would be in the children’s best interests to reside with the mother.  The father, on the other hand, argued that the children were better off residing with him as he had been the principal carer of the children and that the mother had insufficient means to properly care for the children.

The two issues to be decided at the interim hearing were (a) which of the two parents the children should be ordered to reside with until the final hearing, and (b) whether the mother should have exclusive occupation of the former matrimonial home until the final hearing.

Held:

1. There is no presumption in favour of preserving the so-called status quo and no legal onus on an applicant to show that a change would be a positive advantage to a child.

1. However, the assumed benefits of the “status-quo” can be displaced by specific evidence to the contrary which may establish, for example, that the disadvantages involved in a move are outweighed by the advantages.

1. When determining an application to expel a parent from the former matrimonial home, the Court needs to consider (a) whether it is untenable for the parties to continue to live under the same roof, in the sense that it creates more disruption for the children than stability; and (b) which one of the parents should be the one to go.

1. The Court has to consider the position of both parties and the alternatives that face them if an order for exclusive use is, or is not, made.  The hardship to each party of granting or refusing an order has to be weighed against each other and the order should impose no further restriction than is necessary to meet the ends of justice and practical needs.

Introduction

1. This is a defended urgent interim residence and exclusive occupation application.

2. The subject children aged 4 and 2 lived in a well settled environment with both parents in the former matrimonial home until the mother's departure about six weeks ago. They had contact with her by agreement on 22 July 2005.  She held over and only agreed to return them to the father on condition that he vacated the former matrimonial home within seven days.  The father recovered the children in disputed circumstances from a mutual friend’s house two days later.  The mother filed for recovery on 5 August which was adjourned for hearing.  The children had court ordered contact with the mother last weekend.  I made the orders sought by the mother on 9 August and reserved publication of these reasons.

3. There are two main issues to be decided.  The first is, which of the two parents the children should be ordered to reside with between now and the final hearing.  The second is whether they should continue to live in the former matrimonial home or move into alternative accommodation with that parent.  These are quite separate but closely related questions because the outcome, in relation to one, affects but does not automatically determine the other.  The order with which they are dealt with probably does not matter much in the circumstances of this case.  However, care is required in both because the practical effect of the decision will be to either preserve or establish a new status quo in terms of place of residence or primary carer between now and trial.  This will give the interim resident parent a distinct forensic advantage at the final hearing because of the importance that the court attaches to stability and continuity even at that stage.

4. Courts are anxious to prevent children from becoming pawns in a battle of wills between their parents.  Thus, although each parent has parental responsibility and, in the absence of a court order, they are entitled to exercise all aspects of that responsibility independently, this does not mean that either of them is free to take the children away from their settled home.  A parent has no right to refuse to return a child after a contact visit where the child resides with the other parent.  Nor, for that matter, is one parent entitled to evict the other from the family home. 

Interim Residence Orders

1. The principles of law governing an application for an interim residence order can be summarised as follows:

2. By virtue of s 65E, in deciding whether and what interim residence orders should be made, the paramount consideration is the best interests of the child or children. The Court determines a child’s best interests by reference to the matters listed in paragraphs (a) to (l) of subsec 68F(2).

3. The best interests of a child are determined by taking into account all the relevant factors including their wishes, relationships, characteristics, circumstances, welfare and developmental needs, and any protection or safety issues.  The orders to be made also depend on a comparison of the relevant capacities and attitudes of the parents and weighing the advantages and disadvantages of each of their proposals and any other viable options.

4. It is important to remember, however, that perfect justice is a worthy but unattainable goal. Best interests are values not facts.  Ascertaining them involves a discretionary judgment in respect of which Judges can come to opposite but reasonable conclusions on the same body of evidence.  There are no starting points or preferences based on popular beliefs in the search for the best interests solution. The Court’s approach is gender neutral. Mothers of daughters or infants, for instance, are not preferred over fathers or vice versa. 

5. However, because not all the relevant circumstances may be available or cannot be thoroughly investigated in interlocutory proceedings, it is usually assumed that the interests of a subject child are best protected on an interim basis by ensuring as much stability and continuity as practicable in his or her life pending final hearing.  This recognises that, by its very nature, change involves disruption and a range of physical and emotional readjustments.  If the existing environment is well established and progressing satisfactorily, and regardless of whether the subject child has remained in or been removed from the former family home, his or her stability will usually be ensured by staying put in familiar surroundings (rather than being moved into the unknown and untested) until the hearing for final orders “unless there are strong or over-riding indications of a physical safety or other welfare related risk” -  Cowling v Cowling (1998) FLC 92-801; F and S (2005) FLC 93-211.

6. Similarly, there is a commonly held view within the court that a child will often be better off being looked after by the parent with whom he or she has the strongest attachment and closest relationship and, as is often the case, who has been the primary carer before proceedings were commenced.   Thus, interim orders regularly have the effect of leaving children with, or restoring them to, the parent who had the primary care, unless there are strong and over-riding indications, based on credible evidence, that the child’s welfare would be endangered.  The principle, however, is no more than a proposition based on common sense and the general experience of members of the court acquired over a long period of time. 

7. While not specifically referred to in the Act, a number of the best interests factors in s 68F(2) give implied support to such an approach, including paragraph (b) the nature of the relationship between the child and each parent; (c) the effects of change; (d) practical difficulties in maintaining contact with a parent; and (e) parents capacity to provide for a child’s relevant needs. There is also a considerable overlap in many cases between these factors and the welfare and family violence considerations in pars (g) and (i) and the finality principle in par (k).

8. Nonetheless, there is no presumption in favour of preserving the so-called status quo and no legal onus on an applicant to show that a change would be a positive advantage to the child.  Change is not automatically assumed to be detrimental.  It may sometimes not only be desirable but necessary to promote the child’s welfare and achieve the legislative objects.  Thus, the assumed benefits of the status quo can be displaced by specific evidence to the contrary which may establish, for example, that the disadvantages involved in a move are outweighed by the advantages.

9. A settled situation, of course, is not constituted solely by the previous place of residence or education, and evidence about the role each played in caring for the children and providing for their welfare prior to separation will help to indicate which parent (irrespective of where) the children should live with for the sake of stability.  The weight to be attached to the importance of retaining the children’s current living arrangements generally depends upon a consideration of the circumstances giving rise to them and whether they have been unilaterally imposed by one party on the other or not.  Other relevant matters include the age of the children, their wishes, how long they have lived in the current environment, the quality of those arrangements, and the nature of the child-adult-sibling relationships that have developed within it.  Educational and other needs may also be significant.  So, too, are the interests of the other parent and family members.

10. As the Full Court recognised in Cilento (1980) FLC 90-847 at 75,345-75,346:

    “This general approach does not necessarily apply where the court has to also deal with an application regarding the occupation of the former matrimonial home when other factors may point to the need for a change in occupation and/or parenting arrangements on an interim basis”.

Exclusive occupation orders

1. My power to make an exclusive occupation order in this case is not contested. It derives from both section 68B(91)(b)(c) and section 114(1)(a)(b)(d)(h).

2. There are two enquiries to be made when determining an application to expel a parent from the former matrimonial home.  The first is whether it is untenable for the parties to continue to live under the same roof, in the sense that it creates more disruption for the children than stability.  The second, of course, is (assuming that the children’s stability would be better served by them staying where they are) which one of the parents should be the one to go.

3. Standing alone, the outcome of an application for exclusive occupation is normally determined by reference to the means and needs of the parties, the requirements of the children, the hardship of either party or the children and, where relevant, the conduct of the parties.  The relevant criteria were most recently summarised by the Full Court in S and S [2002] Fam CA 59.  The onus of establishing a case for exclusion rests on the applying party.  Proprietary rights are relevant but not decisive. 

4. Turning a father or mother out of the matrimonial home is a serious step, regardless of in whose name the property is registered.  It must be necessary rather than merely convenient.  The usual approach where there are children in need of parenting is for the party who has the care of the children to continue to reside in the matrimonial home with them but, again, this is not a foregone conclusion in all cases.  The Court has to consider the position of both parties and the alternatives that face them if an order for exclusive use is, or is not, made.  The hardship to each party of granting or refusing an order has to be weighed against each other and the order should impose no further restriction than is necessary to meet the ends of justice and practical needs.  A slightly different, more child-centred approach may be required when considering competing interim residence and sole occupation applications at the same time.

5. As a rule, no distinction in law is drawn between the situation where a spouse left the home and is seeking to return and a situation where both parties at the time of the hearing are still residing in the home with one seeking to exclude the other.

6. However, misconduct by one party may establish a situation of necessity and also indicate which of the parents should, in fairness, be required to leave.  Physical assaults or forcible eviction are relevant. 

7. It is not uncommon for a victim of domestic violence to leave the matrimonial home.  In some cases – and this is said by the mother to be one of them – it may be impossible for a battered wife to continue to live in the family home, but impractical or dangerous for her to take the children with her.  It may be some time before she is able or willing to take legal action for interim residence.  This sort of evidence is documented in the Australian Law Reform Report “Equality before the law: Justice for Women” Report No 69 Part I Chapter 9 “Violence and Family Law”.

8. According to the authors of the Australian Family Law and Practice Reporter (2005 CCH Australia Limited), at page 1314:

   ‘… elements of the decisions in Cilento and Cowling could be used to argue an interim residence order in favour of the mother who has fled domestic violence.  First, if the mother has the children with her, then she may be said to have established a new status quo which should not normally be disturbed.  Second, if the mother does not have the children with her, the status quo is not constituted solely by the place of prior residence and evidence about the mother’s role as primary caregiver will help to indicate that the stability of the children will be promoted by living in her care.  Third, there is now recognition in the Act, as well as in the case law of the danger to children of living with perpetrators of domestic violence.  The cases recognise that, in the face of dangers to children’s health and wellbeing, a change in status quo may be appropriate.  Fourth, the Full Court in Cowling made reference to the relevance of “the circumstances giving rise to the current status quo”.’

9. On the other hand, Pawley J held in Rowe (1980) FLC 90-895 that if a party, by acting unreasonably, brings upon himself or herself a degree of hardship, it would not be proper within the meaning of s 114(1) for a Court to order the spouse of that person to vacate the home. It is wrong, in his Honour’s view, for a person to arbitrarily put an end to the marriage relationship without sufficient cause on the part of his or her spouse and then be put into exclusive possession of the home to alleviate a degree of hardship likely to be suffered by that person or even a child.

Brief History

1. The parties began cohabiting in 1999.  They married in 2002 and finally separated – after 18 months of difficulties – on 30 June 2005.

2. The eldest child, A, was born in 2001.  His sister, E, will be three in a few months.  The father has two other children, a seven-year-old son named L, and a daughter, H, aged six, from his first – and relatively brief marriage – to RR.  L and H are in grades 3 and 1 respectively at the local state school.  Although consent orders provide for the residence of the older children to be divided equally between the parents on a month-about basis, they have, in fact, been raised as members of the parties’ family and treat the two younger children as siblings. Their mother sees them regularly by agreement.

3. The family initially lived in a house partly owned by the mother at 15 B Street, HB.  They moved into their current residence at A Street – 8 to 10 kilometres away – just after E was born.

4. The mother has a stable part time job as a sales assistant.  She has been employed by the same business for nearly eight years.  The husband contends otherwise but I am satisfied that the mother only works two to three days a week for up to six hours per day.  She earns $200 to $250 a week in wages, and also receives a part parenting payment of $350 per fortnight.

5. The A and B Street properties are both owned jointly (as far as I can tell from the contradictory statements by the pair in their material) by the mother and paternal grandfather.  B Street is an investment property which has been tenanted since December 2002.  A Street is registered in the sole name of the mother’s father, but the mother is arguably fully entitled to the beneficial interest in the property.  The house is unencumbered and the mother seems to have been responsible for rates and outgoings.  

6. The father, by comparison, has not had paid employment since A and E were born.  He did the babysitting when the mother was at work.  His only source of income is a Centrelink payment of $400 per fortnight.  He declares a 50 percent share in a 1991 Nissan registered to the mother and valued at $15,000, household contents of $15,000 and a 1961 Holden Ute (in working order) and 30-foot alloy Cat worth $35,000.  His total liabilities consist of a $2,500 credit card debt.  The father asserts and the mother refutes that he has made substantial financial contributions to the family property and household expenses.

The rival arguments

1. It is common ground that living under the same roof is untenable for these parents.  The practical reality is that one of them has to vacate the premises so that the other can care for the children in their settled situation.

2. Unfortunately, there is not very much consensus between the parties on other factual matters.  Both parties, for instance, claim pre-separation primary responsibility for the care, welfare and development of the children with little assistance from the other.  The mother presents the husband as a violent, controlling, lazy, drug-effected and generally irresponsible parent. 

3. The mother says that she was responsible for all cooking and cleaning for the household, as well as buying groceries, paying household bills and most, if not all, the domestic chores.

4. The father, by contrast, contends that of the two he is the better and more available parent and has fulfilled the role of primary carer since the children were born.  He says the mother’s parenting capacity is diminished by an eating disorder which leaves her chronically underweight and teaches the children bad eating habits.  He says she rarely cooks and that he is the one who has to ensure that the children have proper, balanced meals.  He also argues that the children were well settled in the former matrimonial home, with him as their primary parent and should be allowed to continue in that situation, not only to maintain stability and continuity, but also because the mother is in a better financial position to find and maintain alternative accommodation.

1. The father suggests that he should be the one to stay because he has been the principal carer of the children, is not disqualified by any welfare based factor and if forced out of the property, would find it difficult to find somewhere else to reside, to live with four young children.  He has no family in North Queensland and would only be able to stay with friends for a short period.  He believes that he would be vulnerable to suggestions by the mother and his first wife that he could not properly provide for the children, and says that putting them in the care of anyone else would not be in their best interests.  He asserts that his first wife has shown little interest and has insufficient means to properly care for the children and that the mother would either put them in child care or get the paternal grandfather who has little contact with them, to supervise them when she is at work.

2. He says that he is a committed and effective parent.

3. The mother argues that the father should be the one to leave because she is the equitable owner of the property and that notwithstanding she is less available because of her work commitments, she is overall the more capable, dependable, experienced and safer parent.

4. The mother contends that dismissing her application for interim residence and/or exclusive occupation will have the undesirable, but inevitable, effect of consolidating the position of the father, created by his own wrong-doing.

5. The mother proposes that the father have contact three days and two nights a week coinciding with her work roster, but each alternate weekend.  The father, on the other hand, proposes that the children spend each weekend from Friday afternoons to Monday mornings with the mother, and the balance of the week with him.  Neither are prepared to contemplate an equal time parenting type arrangement.

Interlocutory hearings

1. The Family Law Rules 2004 set out the procedure to be followed in interim matters. Rule 5.10 provides for a hearing time of no longer than two hours and allows cross examination only in exceptional circumstances. Only one affidavit by each party can be relied upon and then, only if it was filed and served in accordance with the Rules or an order.

2. The hearsay rule does not apply to evidence if the party who adduces it also discloses the source of the information.

3. Rule 5.08 identifies the matters that the Court may take into account when considering whether to make an interim order.  In a parenting case, (as this is), these include:

   (a)         the best interests of the child;

   (b)         whether there are reasonable grounds for making the order;

   (c)whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary;

   (d)the main purpose of the Rules which, according to Rule 1.04, is to ensure that each case is resolved in a just and timely manner, as cheaply as possible; and

   (e)whether the parties would benefit from participating in one of the primary dispute resolution methods.

4. The Family Law Act does not distinguish between the principles to be applied in determining residence in interim and final proceedings.  The essential difference between them is one of procedure.  Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children.  The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter.  Such proceedings are an abridged process where the scope of the enquiry is necessarily significantly curtailed.  As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process.  Ordinarily, at interim hearings, the Court should not be drawn into issue of fact or matters relating to the merits of the substantive cases of each of the parties.

5. Accordingly, in determining what orders should be made, the Court traditionally looks at the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and the children, and the parties respective proposals for the future.  In some cases, it is also necessary to consider child protection or family violence issues:  see the discussion in J v W (1999) FLC 92-858 at 86,144 et seq.

Provisional findings

1. The way I see it is that the outcome should be based on tentative findings about the primary care issue, welfare factors such as family violence or other negative behaviours, which parent is most likely to be able to best provide for the emotional and developmental needs of these pre-school age children between now and the final hearing and, finally, and most importantly, which order will be most likely to promote the children’s overall best interests by providing stability and avoid needless disruption.

2. There is no doubt that the father is an experienced and available parent.  He has a demonstrated capacity to provide for the needs of the children.  The mother asserts that the father spends most of the time when she is at work watching television and smoking marijuana.  This seems to me to be an exaggeration.  Even the most sedentary of parents could not avoid some active involvement with young children in their care for six hours a day, up to three days a week.  Nor does the quality of his parenting necessarily determine the nature and strength of his relationship with the children. 

3. The children have been in the father’s sole care for most of the six weeks since separation.  His claim to be the principal carer before that seems to me to overstate his own role and totally ignore the mother’s and the quality of his parenting is seriously in dispute.  Nonetheless, even his most trenchant critic, the mother, has trusted him to look after the children for over 4 years and was initially in favour of a shared care arrangement.  I doubt that she would do that if he was as bad as she claims. 

4. Both parents are likely to be able to provide for the children’s financial and other physical needs.  Each is an adequate parent.  They have a track record of parental responsibility.  Although they are critical of each other now that they have separated, to have the parenting of their children over the past four years appears to have been a cooperative joint venture.  Mrs BK, who filed an affidavit in the mother’s case, attests to both parents playing an apparently active role in raising the children.

5. I am persuaded that the children have a strong and durable relationship with both parents, and that each of them have been more or less equally responsible for the children’s past care.  Separation from one or other parent is likely to be detrimental and limit their access to emotional and physical support they have previously had.  Expelling the father will necessarily mean that the close bond between the subject children and their two older half siblings will be disrupted.  This is an unfortunate but natural incident of family break-up.  It should be avoided if possible, but if it cannot be, then its adverse effects have to be minimised as much as practicable.

6. The mother is undoubtedly in the best financial position to find alternative accommodation.  She owns substantial real property and is in secure employment.  Her income from wages and benefits exceeds the father’s, but neither her ownership of the disputed property nor her superior financial circumstances are determinative of the issue.  In any case the father would (presumably) be eligible for increased Centrelink payments and rental assistance as sole resident parent of four young children.

7. The mother alleges that the father has a drug dependency and intravenously injects amphetamines on a regular basis.  She also claims that he has a diagnosed bi-polar disorder which is currently untreated and makes him unpredictable and aggressive, which give rise to anger management and mental health issues which interfere with his parenting capacity.

8. Furthermore, the mother asserts that she has been the victim of domestic violence in the marriage.  She obtained a protection order on 30 June after she says she was forcibly evicted from the house and says she was assaulted by the father when he reclaimed the children on 27 July. 

9. The father denies each of these allegations and it would be unfair to act on the basis that they were true where they have not been tested by cross examination.  However, it is possible to draw inferences from established facts and to rely to some degree on evidence from other sources tending to confirm the mother’s allegations.

10. The material supporting the mother’s application for a Protection Order which was not contested by the father forms part of MR3 to the mother’s affidavit sworn and filed 4 August 2005.  Those and the other allegations levelled at the father are supported in a general way by the affidavit of RR, who swears that the husband physically assaulted her during their short relationship and served a short term of imprisonment for breach of a domestic violence order.  She describes the father as an aggressive bully who hounded her relentlessly after they separated.  She says he is addicted to amphetamines and that the effect of the drug influences all aspects of his emotional and physical behaviour.  She says there is absolutely no way that she would have allowed the father to spend as much time with her children as he currently does if he had been a sole parent, and it is only because she knew that the children were safe and being cared for by the mother, that she is comfortable with it.

11. In paragraphs 21 through to 24, she catalogues the father’s perceived deficiencies as a parent and identifies behaviours reflecting a poor attitude to the responsibilities of parenthood.

12. Ordinarily, the evidence of RR would be approached cautiously and be given reduced weight because of her admitted animosity towards the father.  She has a clear motive to lie about his fitness as a parent.  So too does the mother.  Nonetheless, they mutually corroborate each other in some material respects and, despite he possibility of collusion, what they say is the best available body of evidence for me to rely upon. 

13. The mother probably was forcibly evicted from the former matrimonial home.  She is unlikely to have left voluntarily.  The lapse of three weeks before she saw the children again after that can be explained by the heightened tension associated with marital breakdown and her apparent fear of the father.  Although domestic violence orders are often used in this jurisdiction for tactical purposes by separating spouses, the mother’s immediate action in obtaining one on 30 June 2005 is consistent with her version.  The information she supplied in support of her application has the ring of truth to it.  The mother’s description of the circumstances surrounding the father’s retrieval of the children on 27 July is consistent with the independent prior experience of RR.  Notably, however, neither party filed an affidavit from the person who both of them claim to have witnessed the events as they depict them.

Conclusion

1. I am satisfied that interim residence and exclusive occupation orders are necessary in the best interests of the children and that there are reasonable grounds for making them. 

2. The material, such as it is, suggests that the children would be better off staying where they are at A Street than moving to alternative accommodation with either parent.  There is no overall advantage in any change.  The current living environment is well settled and stable.  The children are progressing satisfactorily.  No change is justified.  The disruption and adjustment involved in altering the current circumstances would outweigh any possible benefit.  The continuity and certainty of maintaining the familiar surroundings of the status quo are preferable to the uncertainty and insecurity associated with relocating the children to B Street or elsewhere.

3. The preponderance of the evidence suggests to me that the mother’s capacity to provide for the needs of the children, including, in particular, their emotional need and psychological needs, is slightly better than the father’s.  This is based, in part, on the substantial degree of primary care she has provided to date, but mainly on the provisional acceptance of the admittedly untested and suspect evidence of RR.  I am particularly mindful of the need to protect the children against the harmful effects of being exposed to drug use and abusive or violent behaviour.  There is some evidence supporting the inference that the father is a welfare and safety risk to the children.  There is no evidence that the mother is.  The risk of physical and emotional harm to the children is likely to increase, rather than decrease, if the mother was the non-resident parent.

4. Finally, it is clear enough from the material that the mother is in a stronger financial position to support the children than the father.  I accept that her wages have been used to meet most, if not all, household expenses.  The mother can also rely on her father for financial assistance. I note in this regard that in his own Form 13, the husband declares his weekly expenses exceed his income.

5. Unlike the father, the mother has an extensive network of friends and supporters in Cairns, with children of similar age.  She can afford short term day care if necessary, and her father is available to assist.  She has flexible working hours and understanding employers.  The father, by contrast, would find it difficult to replace the mother when he was unavailable for any reason to care for the children.

6. I find the mother to be best qualified to take over responsibility for the day to day responsibility for the care, welfare and development of the children in their best interests.  I am also reasonably satisfied that their stability would be better served by them staying where they are.   Her proposal for contact would see the children being cared for by the father alone when she is at work as he currently does.  It would also have the benefit of three afternoons and two nights with their siblings.  This is considerably less than they are used to, but, in the circumstances, it seems to me to be more likely to preserve and develop the relationship between the children and the father and their siblings than any other, including the father’s.

7. The strength of the husband’s claim to interim residence is the substantial experience he has to date as, if not the primary then certainly a roughly equal carer for the children.  However that is outweighed, in my opinion, by the extent of the mother’s contribution to parenting and the greater ability I think she has to provide a safer, more peaceful, financially secure household and to ensure that their emotional and psychological needs are met.

8. I conclude that it is not only more convenient but necessary for the father to live away from the former matrimonial home as non-resident parent in the children’s best interests.  The only countervailing factor is the hardship that expelling him will cause him and the older children.  He does not have the current financial resources to re-house on such short notice.  However, the wife has offered vacant possession of her investment property at B Street on a short term rental basis to alleviate this concern.  It would be unreasonable for the father to refuse this offer of cheap alternative housing.  It allows a reasonable time for him to adjust to a new set of circumstances and re-settle over time.

9. The most appropriate order, in my opinion, is for the mother to have interim residence and for the father to be expelled from the former matrimonial home.  I think that interim residence and exclusive occupation orders in her favour will be the one least likely to lead to the institution of further proceedings.  They will also ensure that the father’s own apparent misconduct during and at the end of the relationship does not put him in a preferred position in these proceedings and protect the children against potential risks they might be exposed to under the father’s proposal.      

   I certify that the preceding 64 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Carmody.

………………………………….
  Associate

Date: 8 September 2005.