REGAN & REGAN

[2015] FamCA 522

FAMILY COURT OF AUSTRALIA

REGAN & REGAN [2015] FamCA 522

FAMILY LAW – Exclusive occupation – Where the wife seeks exclusive occupation of the family home on an interim basis – Where the parties currently have a toxic relationship – Where the family consultant is of the view that the current situation is causing the children distress – Where the wife agrees she shall be responsible for the payment of the mortgage repayments and utilities – Order made as sought by the wife.

FAMILY LAW – PARENTING – Interim application – Where if the wife is granted exclusive occupation of the family home the parties seek parenting orders in respect of the children – Where the parties consent to an order for equal shared parental responsibility – Where the husband seeks equal time – Where the wife seeks the children spend substantial and significant time with the husband – Where the husband alleges the wife is influencing the children’s views – Where the wife asserts the husband drinks alcohol excessively – Where the children’s relationship with the husband is fractured and worsening – Where the parties are unable to communicate and co-parent – Best interests consideration – Parenting orders made as sought by the wife.

Family Law Act 1975 (Cth)

Grenfell & Grenfell & Ors [2010] FamCA 1078

APPLICANT: Ms Regan

RESPONDENT: Mr Regan

FILE NUMBER: SYC 5737 of 2014

DATE DELIVERED: 26 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Gibson Howlin Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: MCW Lawyers

Orders

PENDING FURTHER ORDER:

1. The wife be granted exclusive occupancy of the property situated at B Street, Suburb C (“the former matrimonial home”), to the exclusion of the husband, effective 28 days after the date of these orders.

2. Upon the husband vacating the former matrimonial home, the wife shall be responsible for the payment of monthly mortgage repayments and utilities with respect to the former matrimonial home.

3. The parties shall be equally responsible for the payment of council and water rates in respect of the former matrimonial home.

4. The parties have equal shared parental responsibility in relation to the children of the marriage, D born … 2003, E born … 2005, and F born … 2007 (“the children”).

5. The husband have sole responsibility for making decisions about the children’s day to day care, welfare and development during times at which they are spending time with him.

6. The wife have sole responsibility for making decisions about the children’s day to day care, welfare and development during times at which they are spending time with her.

7. Each parent be entitled to attend events involving the children including but not limited to:

   7.1.Sporting fixtures;

   7.2.Extra-curricular activities that allow for parental attendance or participation;

   7.3.School functions and events that allow for parental attendance or participation;

   provided that the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.

8. The children live with the husband as follows:

   8.1.Every second weekend commencing 9.30am Saturday to before school Tuesday;

   8.2.Every other Monday afternoon from after school to before school Tuesday;

   8.3.Any other times as agreed to between the parties.

9. The children shall spend additional time with their parents as follows:

   9.1.Upon such occasions as the parents agree;

   9.2.On the husband’s birthday and Father’s Day, if it is not a period when the children are to live with the husband, from 9.00am to 6.00pm;

   9.3.On the wife’s birthday and Mother’s Day if it is not a period when the children are to live with the wife, from 9.00am to 6.00pm;

   9.4.Upon the children’s birthdays if any of the children’s birthdays fall in a period when the children are with the other parent, then that parent shall spend time with the children in each year if their birthday falls on either Saturday or Sunday by agreement or from 12 noon to 4.00pm of that weekend and, if on a weekday, by agreement or from 4.00pm to 7.00pm;

   9.5.Christmas with the husband from 3.00pm on 25 December 2015 until 5.00pm on 26 December 2015 and thereafter each alternate year;

   9.6.Christmas with the wife from 5.00pm on 24 December 2015 until 3.00pm on 25 December 2015 and thereafter each alternate year;

   9.7.During one half of each of the school holidays occurring at the end of Term 1, Term 2 and Term 3 by agreement and failing agreement, with the wife for the first half of each school holiday period;

   9.8.During the Term 4 school holidays for one half of the time in seven night blocks, and failing agreement, with the wife for the first, third and fifth weeks.

10. The arrangements set out in order 8 herein are suspended during the school holidays periods and will resume on the first Monday following the last day of the school holidays.

11. Unless the children are to be picked up from or delivered back to school, the husband will collect the children at the commencement of the time to be spent with the children pursuant to these orders and the wife shall collect the children at the conclusion of the time.

12. The children have the following communication with their parents:

    12.1.By telephone between 8.00am and 9.00am on Christmas morning with the parent other than the parent in whose care they are during that morning; and

    12.2.By telephone at any reasonable time during each second day when the children are spending time with the other party.

    and each of the parents shall do everything to facilitate that contact.

13. For the purpose of communicating information between the parents about the children, the parents must communicate by:

    13.1.Telephone;

    13.2.Email;

    13.3.SMS; or

    13.4.Facetime/skype.

14. Without admission, both parties shall not consume alcohol beyond the legal limit for driving for 24 hours before and whilst the children are in their respective care.

15. Neither party shall denigrate or insult nor allow any other person to denigrate or insult the other party or the other party’s relatives or friends to or in the presence or hearing of the children.

16. During the time the children are with either party, that party shall respect the privacy of the other party and not question the children about the personal life of the other party and shall speak of the other party respectfully.

17. The respective applications of the parties for a final property settlement order be expedited and placed in a judicial docket as soon as is practicable after a conciliation conference has been concluded.

18. Pursuant to s 65DA(2) and s 62B 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 Regan & Regan 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 PARRAMATTA

FILE NUMBER: SYC 5737 of 2014

Ms Regan

Applicant

And

Mr Regan

Respondent

REASONS FOR JUDGMENT

1. Ms Regan (“the wife”) has filed an Application in a Case on 30 September 2014 in which she seeks an order for exclusive occupation of the former matrimonial home at B Street, Suburb C on the basis that she be responsible for the payments of monthly mortgage repayments and utilities in respect of the property. She seeks an order that Mr Regan (“the husband”) pay one half of the council and water rates.

2. The parties have agreed on an order for equal shared parental responsibility in relation to the children.

3. In the event that the wife is not successful in her application for exclusive occupation, neither of the parties seek any parenting orders. They will continue to reside separately and apart under the one roof with the children. If an interim order for exclusive occupation is made, the wife seeks interim parenting orders in relation to the three children of the marriage, D born in 2003 (currently aged 12 years old), E born in 2005 (currently aged 10 years old) and F born in 2007 (currently aged 8 years old) (“the children”). The parties have agreed on a number of the parenting orders to be made, namely, the orders as sought by the wife in her Application in a Case filed 30 September 2014 numbered 4, 5, 6, 9, 11, 12, 13, 15 and 16. An order to the effect of order 10 as sought in the wife’s Application in a Case was also agreed.

4. The husband seeks, in the event that an order is made in the wife’s favour for exclusive occupation, for parenting orders to be made that the children live with their mother in alternate weeks from the commencement of school on Monday until the commencement of school on the following Monday, commencing on the first week the husband vacates the home, and that the children live with him in the alternate weeks from the commencement of school on Monday until the commencement of school on the following Monday, commencing on the second week the husband vacates the home.

SHORT HISTORY

1. The husband was born in 1968 and is currently 46 years of age.

2. The wife was born in 1969 and is currently 46 years of age.

3. The parties commenced to live together in October 2001 and married in 2002.

4. D was born in 2003.

5. E was born in 2005.

6. F was born in 2007.

7. On 17 February 2007 the husband witnessed a particularly traumatic incident at work.

8. In March 2007 the husband was hurt following a physical altercation at work.

9. In September 2007 the husband consulted a psychiatrist. The report prepared by that psychiatrist indicated that throughout his years of employment, the husband was exposed to traumatic and violent situations. The incident on 20 February 2007 caused the husband to experience significant psychological difficulties. From this time the husband began experiencing disturbed sleep, nightmares (about the incident in February 2007), anger, and emotional reactivity. The husband told the psychiatrist that from 20 February 2007 his behaviour became increasingly erratic and was “out of character”. Following a course undertaken at I Hospital the husband improved his ability to deal with his anxiety, depression and psychological symptoms. The husband did not require any psychotropic medication or inpatient treatment. The husband felt unable to return to work and was diagnosed with post-traumatic stress disorder by the psychiatrist.

10. In 2009 the husband was discharged from his employment and commenced to receive a pension.

11. The wife alleges that the husband pushed her in February 2013 and told her that he enjoyed “happiness” thinking about the death of her parents. The husband denies that any of this happened and I am unable to resolve that issue in the context of these proceedings.

12. In May 2013 the husband was employed overseas in risk and compliance management work. He ceased that employment in February 2014 when his employer lost the contract for that work.

13. The parties separated under the one roof in December 2013.

14. In February 2014 the wife requested that the husband move out of the matrimonial home but he refused to do so. The wife has made allegations that the husband has been intoxicated in the matrimonial home.

15. It seemed to be mutually agreed between the parties that their level of communication is currently incredibly poor with each of them refusing to speak to the other if at all possible.

16. The wife alleges in July 2014 the husband was physically aggressive with D and that both D and F were upset by this.

17. In August 2014 the wife obtained part time work.

EXCLUSIVE OCCUPATION

Case Law

1. Counsel for the wife relies upon a summary of the relevant case law by Dawe J in Grenfell & Grenfell & Ors [2010] FamCA 1078:

   70.  The relevant criteria in sole use and occupation cases has been discussed by the Full Court in the matter of S & S [2002] FamCA 59 wherein the Full Court stated “The criteria to be applied when determining a sole use application are surprisingly vague”.  (Paragraph 32 of the Full Court judgment).  The Full Court then went on to refer to the often cited authorities of Davis v Davis (1976) FLC 90-062, Page v Page (1981) FLC 91-025 and Seiling v Sieling (1979) FLC 90-627.

   71.  In Page v Page (Supra) the Full Court referred to the English decision of Bassett v Bassett (1975) 1 All ER 513 at page 520 which included a section which said:

   “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.”

   72.  In the Full Court decision of S & S (Supra) the Full Court again referred to the decision of Davis and Davis (1983) FLC 91-319 which quoted from an unreported decision of Lindenmayer J in P v P (unreported, 12 July 1982) which included:

   “…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 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.”  (Emphasis added)

   73.  Similarly, the Full Court in S & S (Supra) referred to Seiling v Seiling (Supra) at 78,264 said:

   “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 than 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.”    (Emphasis added)

   74.  In the matter before me there is a considerable dispute as to whether the husband has any property rights and whether he is indeed in any way an “owner” of the property.

   75.  The Full Court in S & S (Supra) concluded that an injunction prohibiting a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.  (Paragraph 38).  In that paragraph however they continue to refer to English cases which made it clear that such an order should not be allowed to become “a routine stepping stone”.  Whilst quoting all of those cases however the Full Court continued in paragraph 40 with their conclusion:

   “There are no words of limitation in s 114 other than the grant of the injunction must be “proper”.  But, even so, it is difficult to see how the grant of such an injunction could be said to be proper unless there is an appropriate factual base supporting it.”

   76.  In the more recent judgment of Mikele & Mikele [2008] FamCA651 His Honour Justice Cronin referred to the decisions of Davis v Davis (Supra), Page v Page (Supra) and Seiling v Seiling (Supra).  In relation to the first two cases His Honour correctly said at paragraph 32:

   “The comments of the Full Court have to be read cautiously having regard to the fact that they do not set down any specific principle. Those comments reinforce the obligation of a court under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make an order which is proper and more importantly, to exercise discretion judicially.”

   77. A Judge at first instance therefore has the guidance of the Full Court decisions, however, the Court is required to exercise the discretion under section 114 taking into account the particular circumstances of this individual matter.

2. Both counsel adopted the above discussion as a correct statement of the applicable legal principles.

Is it reasonable or sensible or practicable for the family to remain living under the one roof?

1. Counsel for the wife relies heavily upon statements made by the family consultant in the Child Responsive Program Memorandum. At [9] of that document, the family consultant records that the husband said:

   He is ‘not a cot case’ and although he is ‘suffering’ from anxiety and depression, he considers that this is due to his relationship breakdown with [the wife] and their current living arrangements. He said that he has re-engaged with his previous treating psychiatrist, [Dr G], and feels that he is currently doing everything necessary to remain mentally healthy.  [emphasis added]

2. The family consultant saw each of the three children individually. The elder child D, who impressed as a confident boy (and at the time of the interview held the position of school captain) and whose school reports otherwise show him as excelling, whilst outwardly appearing confident, experienced extreme nausea at the time of the interview. D told the family consultant:

   He thought that his father had ‘changed’ after he left [his employment]. [D] described his home as ‘a place that you don’t want to be around’ and referred to it as ‘isolated’. [D] was aware that he was not using the word isolated correctly but he wanted to convey how he felt about his parents being separated under the same roof. [D] said to cope with this feeling, he either stays in his room or goes out in the back yard to play.

3. E in his conversation with the family consultant described his father as sometimes “blowing his stack”. E talked to the family consultant about an incident (which the husband says happened in approximately 2010) when the husband took E into his bedroom and smacked him on the bottom on a number of times. E told the family consultant that when he came out of his bedroom his mother, and possibly D, were crying. In fact, D told the family consultant , in relation to this incident, that he was “trying to bash the door down” so that he could get in to help E. E told the family consultant that the current situation of his parents not talking to each other at home is a better situation than them arguing, saying that, “It is a relief”.

4. The youngest child F reported that her friend, H, has been “helping [her] get through this” [her parent’s divorce]. She reported that her parent’s divorce was not something she liked and that it is “making our lives harder than before”.

5. The family consultant opines:

   25. The co-parenting relationship can be, at best, described as unhealthy and very strained. [Mr Regan] said that he “avoids” communicating directly with [Ms Regan] unless it is absolutely necessary to discuss issues pertaining to the children. [Ms Regan] said that she does talk to [Mr Regan] when she has to. Both said that they text and email each other.

   26. It is clear that, for the children, the current situation of their parents being separated under the same roof is causing them distress. It is also clear that the current situation is having a detrimental effect on the relationships that the children have with both parents. The children’s relationship with [Mr Regan] appears to be fractured and worsening as time goes by. The children’s relationship with [Ms Regan] appears stable and close but the more she talks to the children about issues relating to her separation with [Mr Regan], and matters that are before the court, the more damage she is potentially doing to the children’s relationship with [Mr Regan] and their overall emotional wellbeing.

   27. [Mr Regan] and [Ms Regan] appear be [sic] stuck. Their lack of communication with each other, whilst still living under the same roof, has created an anomalous situation for their children. [Ms Regan] appears to appreciate the possible damage and negative effects on the children that this situation is having, more so than [Mr Regan]. Although he conceded that the situation is not ideal, [Mr Regan] did not appear to fully appreciate that their current living arrangements could be considered high conflict, dysfunctional and potentially emotionally damaging to the children.

1. The husband seeks, in the context of this interim hearing, to challenge those opinions as expressed by the family consultant. Counsel for the husband submitted that the opinions expressed are in general terms and that the evidentiary foundation of those opinions has not been fully exposed in the memorandum.

2. Counsel for the husband submitted that the children’s school reports are all positive and indicate that they are happy, cheerful, normal and well-adjusted children. Counsel for the husband also asserted that the children were not obviously depressed, sad, insecure, or anxious.

3. Counsel for the husband submitted that the concerns of the family consultant as to the adverse impact upon the children of the parties living together under the one roof, were overstated and that the evaluation by the family consultant at [26] and [27] of the memorandum, is not supported by the family consultant’s observations of, and interactions with the children, as set out in [11] to [24] of the memorandum, particularly in circumstances where there appeared to be no other evidence that the children are distressed or emotionally damaged. I am unable to agree with that submission. The family consultant’s interactions with, particularly the two elder children, are supportive of the evaluation. In the confines of this interim hearing without the family consultant being tested, I am unable to find that the opinions of the family consultant are overstated.

4. I accept that there is at present a toxic environment in the household. That environment has now subsisted for about 18 months. I indicated during the hearing that I intend to expedite the final hearing for property settlement, but it may still take one year before this case is heard and determined if the parties are unable to otherwise resolve it.

5. I am also mindful of the fact that the wife is now very apprehensive about her own privacy in the home. The basis of her apprehension comes from the husband accessing her personal electronic devices and downloading personal communication between the wife and third parties of a private nature. He also obtained her private handwritten diary and has published pages from it as annexures to his own affidavit. I find it would be reasonable for the wife to feel she has no privacy in her own home.

6. Counsel for the husband suggested that any distress the children are suffering in the household at the moment is as a result of a deliberate strategy by the wife to create a situation which would underpin an application for her to have exclusive occupancy of the home. I am not, on the material that I have, able to reach that conclusion.

7. The husband asserts that he lacks the financial capacity to reaccommodate himself. I do not accept that proposition. As a result of the husband’s sale of a motor vehicle for the sum of $26,000, he deposes to the fact that he currently has in cash investments, a remaining amount of $12,000. The wife has indicated that the husband can use that capital sum to pay a rental bond and to assist in the furnishings of alternate accommodation. The husband tendered in evidence information that he had obtained in relation to rental accommodation, which I infer he thinks would be appropriate for himself and the children. Those rentals range from $520 per week to $690 per week. Counsel for the husband submitted that I should adopt an average figure of between $600 and $650 per week.

8. Currently on the husband’s most recent financial statement (sworn 20 May 2015), the husband shows that he has a surplus income of about $142 per week.

9. However, once he moves from the home he will no longer have mortgage repayments (as the wife has indicated she will be taking them over) in the sum of $156 per week. His financial statement also includes repayment on credit cards of $151 per week, notwithstanding the fact that the husband currently has no outstanding debt on credit cards. Counsel for the husband submitted that the husband’s expenses at item 60 of his financial statement in the sum of $572 per week are frugal. Whilst I accept that is generally so, the husband does indicate that he spends $100 per week on entertainment and hobbies a week and $100 per week on petrol for his motor vehicle in circumstances where he is not currently employed.

10. I find that moving forward, the husband, if he adopts a very frugal budget, would be able to afford accommodation at $520 per week or perhaps even more. That is, however, not the end of that consideration. The wife correctly points out that although the husband receives a pension, he is not prohibited from obtaining gainful employment. The husband is physically fit (he in recent times has completed a triathlon). The husband’s impairment is of a psychological nature, suffering from post-traumatic stress disorder. He has in the recent past worked overseas and that employment was only terminated when his employer lost the contract there.

11. In addition, the wife may have some surplus funds from her paid employment and the husband might be able to make a spousal maintenance application if he is unable to adequately support himself once he reaccommodates. In any such application he will of course have to demonstrate that he has been unsuccessful in obtaining gainful employment.

12. The current arrangement whereby the parties reside under the same roof is not in the best interests of the children, and the situation between the parties is such that it is not reasonable, sensible or practicable to expect them to continue to remain in the same home together.

13. Accordingly I conclude that the parents should not live under the one roof and that it is proper that the order for exclusive occupation as sought by the wife should be made.

PARENTING ARRANGEMENTS

1. The parties by consent have agreed on an interim order for equal shared parental responsibility.

2. Section 65DAA(1) and (2) of the Family Law Act 1975 (“the Act”) requires me to consider whether or not an order should be made for the children to spend equal time with their parents and if not, substantial and significant time. The children will spend substantial and significant time with each of their parents on either party’s proposal.

3. The husband however seeks that an equal time order be made.

4. The children currently enjoy a meaningful relationship with both parents. However, the family consultant indicates that the current situation is having a detrimental effect on the relationships that the children have with both parents. He noted particularly that the children’s relationship with the husband appears to be fractured and worsening as time goes by. The children’s relationship with the wife was observed to be more stable and close.

5. The only issues of violence that have been asserted include an incident where the husband administered physical discipline to E, he says about four years ago (this incident however is still clearly in E’ mind, given E referred to it when talking to the family consultant) and an allegation by the wife that the husband pushed her on one occasion in 2013. Neither party has ever applied for an Apprehended Violence Order for their protection. I do not find that there are any current concerns in respect of family violence.

6. I have said I do not accept the wife has used the application for exclusive occupation as a tactical weapon in the marital conflict. There is, however, support for the proposition that the wife has on occasions been open with the children about what has been happening. The family consultant records that the boys have aligned with the wife in this dispute which could be for reasons including the wife talking to them about issues pertaining to the separation and making her feelings known to them about the current situation.

7. Counsel for the husband asserted that the children’s views were contaminated by a mother who was alienating the children. The family consultant recorded that D impressed as a somewhat conflicted boy talking in quite a negative and, at times, punitive way about the husband. The family consultant also noted that D appeared to know adult information and details about his parents’ separation including their financial position and the ensuing court proceedings. D told the family consultant he knew this information because he sometimes takes a peek at his parents’ paperwork and his mother discusses the situation with him. He in fact told the family consultant that “Mum’s an open book”. Counsel for the wife, in oral submissions, said that D could not have accessed her documents.

8. E told the family consultant that he believed the reason his parents “got a divorce” was because his father would not go to work. F also told the family consultant that her mother often asks her to ask her father questions about issues pertaining to the children or to tell him things. F said she does not like that.

9. I am not in the context of this interim hearing, able to make any finding at all in relation to whether the alignment of the children with the wife is the result of some deliberate tactic the wife has involved herself in or otherwise as a result of inappropriate behaviour by the wife. However, I note the family consultant’s view that the more the wife speaks to the children about issues relating to the separation and matters before the court, the more damage she is doing to the children’s relationship with the husband and overall emotional wellbeing of the children.

10. The husband was the parent who was at home full time between 2009 until 2012. In 2012 the wife dropped the number of days she was working to three and took on more parental responsibility. Counsel for the husband suggested that because the husband was unemployed he was more available than the wife who has been in full time employment to look after the children. However, in his submissions, counsel for the wife pointed to [30] of her affidavit and asserted that the husband has in recent times been absent from the home without disclosing his whereabouts to the wife. The family consultant noted that other reasons the boys may have aligned with the wife presently may be because the husband stays in his room for extended periods of time on his iPad or because he leaves the house for days at a time without telling anyone where he is going or when he will be back.

11. Both parties have consented to the making of a non-denigration order. The wife accepts that she engaged in several communications with a friend of hers, which communications D apparently was able to access, that made reference to the husband as a “FF”. The wife admits “FF” has the meaning “Fuck Face”. The husband said that these messages ridicule and undermine his position as a parent and as a positive role model for the children. These messages should be counterbalanced by an assertion by the wife that the husband publicly made reference to the wife as a paedophile on Facebook. Both parents should be on notice that the order that I have made prohibits this type of communication being conducted in the presence or the hearing of the children. I note that it would be better if this type of communication does not occur at all.

12. Counsel for the wife submitted that an equal time order is not reasonably practicable or otherwise in the children’s best interests because of the almost total absence at the moment of the ability of the parties to communicate with one another. The family consultant is also of the view that the co-parenting relationship is, at best, unhealthy and very strained.

13. I assume the husband will obtain accommodation reasonably close to the former matrimonial home and I was informed that neither party intended for the children to change their schools. The parents’ future capacity to implement an arrangement to facilitate the children spending time with each of them is so far untested.

14. I have concerns about the impact that a week about arrangement would have on the children. D is a particularly articulate child, and as the family consultant records, he has thought about what arrangements would best work for him. He has spoken with his school counsellor about how much time he would like to spend with his father each fortnight. He told the family consultant that he was aware that his mother only wanted he and his siblings to spend every second weekend with his father, but he said that that was “too little”, and that after discussions with his school counsellor, he thought that each fortnight from Friday until Monday before school, and dinner one night in the alternate week, was a good idea. The wife’s proposal is actually one night more than what D has indicated to the family consultant he believes would be his optimum arrangement.

15. Pending a final hearing, I find that the impact on the children of a week about arrangement is unknown and in my view, particularly given D’s clear expressed views, a week about arrangement is not in the children’s best interest nor reasonably practicable.

16. I conclude that the interim parenting orders as sought by the wife are in the best interests of the children and I make orders in those terms.

17. The husband requested an order that if the wife cannot personally care for the children during the time that they are with her, then he would be nominated as the person to first look after them. That type of order would unnecessarily complicate the ability of a parent when the children are with them to properly arrange for their care and I decline to make such an order.

18. The wife sought an order in relation to alcohol and drug testing of the husband. The wife relied upon the results of a drug test that were commissioned by the husband’s solicitor but were not published by the husband. The material came to the court under subpoena. That drug test indicated that the husband, on 21 October 2014, underwent a CDT breath test. He scored 2.0. A raised CDT greater than 2.2 percent is highly suggestive of chronic harmful alcohol abuse. I am unable to conclude from the results of that test that the husband’s current alcohol consumption is problematic and I decline to make the order as sought. In her affidavit the wife dedicates one page to the husband’s “alcohol abuse”. She says that since being diagnosed with post-traumatic stress disorder the husband began to increasingly consume alcohol to excess and that that consumption has increased since separation. The wife also asserts that the downstairs fridge in the former matrimonial home is used to house the husband’s wine and that on one occasion she went to use some of that wine for cooking but noticed there was water in the bottle as opposed to wine. I infer that the wife is suggesting that the husband attempted to cover up the fact he had finished all the wine. The wife also points to another occasion where the husband took a water bottle to bed with him that smelt like bourbon. The husband says in his affidavit that he drinks a lot of water and puts water in wine bottles in the downstairs fridge. The husband also states that he cannot comment on what the wife alleges smelt like bourbon and denies that he attempts to disguise what he drinks. Counsel for the husband made submissions to the effect that the husband’s consumption of alcohol has never affected his parenting capacity. There is insufficient uncontroversial evidence to support the interim order which the wife seeks for alcohol and drug testing of the husband.

19. Counsel for the husband in his case outline and in oral submissions floated the possibility that the court of its own motion might make an order which would leave the children in the matrimonial home all of the time and move the parents in and out on a week about basis. That however was not a formal application that the husband made and as a result was not an application to which the wife had any opportunity to respond. I am not prepared to make an order in those terms on my own motion in those circumstances.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 June 2015.

Associate: 

Date:  26.6.2015