Rudd & Riddick (No 2)

[2019] FamCA 691

FAMILY COURT OF AUSTRALIA

RUDD & RIDDICK (NO. 2) [2019] FamCA 691

FAMILY LAW – Parenting and Property applications – Injunctive relief – Sole use & occupation – Orders proper.

Family Law Act 1975 (Cth) ss 114(2A)(a)-(c), 90SB, 90SK

Davis and Davis (1976) FLC 90-062

Mikele & Mikele (2008) FamCA 651

APPLICANT: Ms Rudd

RESPONDENT: Mr Riddick

FILE NUMBER: MLC 5036 of 2018

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 26 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schmidt

SOLICITOR FOR THE APPLICANT: KCL Law

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

ORDERS MADE 26 SEPTEMBER 2019

1. The Respondent vacate the property situate at and known as G Street Suburb C in the State of Victoria (‘the G Street property’) by 12 noon on 3 October 2019.

2. Until further order, the Applicant have sole use and occupation of the G Street property, to the exclusion of the Respondent, save at such times and durations as agreed between the parties by text message as follows:-

   (a)or the purpose of spending time with X, subject to X’s wishes; and

   (b)for the purpose of conducting repairs, maintenance and/or decluttering the home and/or garden.

3. The Applicant pay to the Respondent the sum of $5,000 within 24 hours hereof the Respondent to use such funds to re-accommodate himself in accordance with these orders and for no other purpose. The reimbursement or otherwise of such sum to the Applicant be a matter for the trial judge’s determination.

4. Otherwise the application of the Applicant as to the sale of the G Street property (as contained in Application in a Case filed 18 September 2019) is adjourned for interim hearing on 25 November 2019 at 10.00am.

5. The parties file and serve any affidavit evidence on which they seek to rely by 12 November 2019 at 4.00pm.

6. Otherwise all extant applications are adjourned for final hearing on 16 March 2020 at 10.00am (with an estimated hearing time of 3 to 4 days).

7. The Applicant’s costs of this day are reserved.

8. Pursuant to r.19.50 of the Family Court Rules 2004 (Cth), the Court certifies that it was reasonable for the Applicant to engage Counsel.

AND THE COURT NOTES THAT:

(A)The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5036 of 2018

Ms Rudd

Applicant

And

Mr Riddick

Respondent

REASONS FOR JUDGMENT

1. These reasons support orders made on the 26 September 2019.

2. Proceedings commenced upon the Applicant filing an initiating application on 9 May 2018. The proceedings have thus been on foot for a period of approximately 16 months. The proceedings involve each of the parties seeking both parenting orders and property orders. Both the Applicant and Respondent seek a section 90SM Family Law Act 1975 (Cth) (“the Act”) order.

3. In support of an application in a case in a case filed by the Applicant on 18 September 2019, the Applicant relied upon evidence contained in an affidavit affirmed by her on 17 September 2019. Attached to that affidavit were various annexures.  Those annexures, marked “[A1]” to “[A21]” inclusive, were tendered in evidence in these proceedings by the Applicant.

4. The Respondent, by orders made 19 September 2019, was required to file and serve a response and affidavit on or before 25 September 2019 at 12pm.  The application in a case was adjourned to 26 September 2019 at 10 am for interim hearing. The reason for the adjournment of the application (in respect of which time had been abridged such that that it was listed the day following filing) was to afford to the Respondent procedural fairness. On the first return date, the Respondent indicated to the Court that he had not had an opportunity to put affidavit evidence before the Court in reply. He sought such opportunity.  The Court was of the view that it was necessary that he be afforded such opportunity. The Respondent submitted that an adjournment of some seven days was sufficient time for him to place necessary evidence before the Court. In the course of establishing an appropriate time frame for adjournment, the following exchange occurred:

   HER HONOUR: [Mr Riddick], what time do you need? How many days?

   Mr Riddick: Well…I need probably a period of seven days.

5. Returning to the transcript, the following exchanges ensued:

   HER HONOUR: [Mr Riddick], [that] gives you a week. You wanted procedural fairness...you have a week.

   Mr Riddick: I’m grateful for that.

6. The Respondent failed to comply with order 2 of the orders made 19 September 2019. He did however attend Court on the adjourned date of 26 September 2019. He indicated in submissions from the bar table at commencement of the hearing that he sought a further adjournment of the proceeding as he had been unwell, and attending a medical appointment at 2.30pm in the afternoon. He placed no evidence before the Court as to his inability to participate in the proceedings by virtue of a medical illness.  As an officer of the Court, he would be familiar with the requirement that ordinarily a medical certificate be so produced.

7. The Respondent then indicated to the Court that he would be unable to further participate in the proceedings due to his health. The Respondent claimed that he had not been able to complete the necessary affidavit of evidence, but that he had a 20-page draft document which he declined to serve and/or file. He chose not to rely upon that document. He also accepted that, regardless of his health difficulties, he had been engaged as counsel for clients in the intervening period since 19 September 2019, and in particular, had appeared on their behalf on the 23 and 24 September 2019.

8. The Respondent was given an opportunity to, subject to the response of the Applicant, either file and serve his draft affidavit; give some brief viva voce evidence; and/or to make submissions.  Initially, he declined to adopt any of those proposed courses. When informed by the Court that the matter was proceeding, he departed the courtroom on the basis of his health being such that he was unable to continue with the proceedings.  The proceedings commenced and sometime thereafter the Respondent returned to the courtroom.  He sought to partake in the proceedings.  He was given an opportunity to provide oral evidence of a limited nature, in particular, in respect of the sole use and occupation application of the Applicant. He gave such evidence and subsequently made various submissions. 

9. The orders sought by the Applicant went to two matters.  The first was her seeking of a sole use and occupation order in respect of what was the parties’ home situate at G Street Suburb C in the State of Victoria (the G Street property) to the exclusion of the Respondent, save at such times and durations as agreed by the parties by text message as follows:

   (a) for the purpose of spending time with the parties’ son X, subject to X’s wishes; and

   (b) for the purpose of conducting repairs, maintenance and/or decluttering the home and/or garden. 

10. The second aspect of the Applicant’s application was the seeking of an order for the sale of the G Street property on terms as set out in the application. Further orders sought went to the application of the proceeds of sale, and other matters going to what should occur pending settlement of the sale. Additionally, the Applicant sought that the Respondent pay the Applicant’s costs of and incidental to the application.

11. The Court indicated to the parties that it would not, in circumstances where the Respondent had essentially two weeks’ notice of the application, proceed to consider the matter of an interim sale of the G Street property. That part of the application was adjourned to 25 November 2019 for interim hearing.  Although both parties agreed that the property will need to be sold, the Respondent indicated that he could not countenance any sale at the present time, on the basis that the G Street property needed to be decluttered, and that such process of decluttering would take a period of approximately six months. The Applicant did not agree with the estimate of time provided by the Respondent.

12. The application which was urgent, and needed to be determined, was the application for sole use of the family home by the Applicant and a restraint upon intrusion by the Respondent.

Background

1. The Applicant was born in 1965 and she is 54 years of age.  Prior to the parties’ separation under the one roof on 13 October 2017, the Applicant undertook some freelance work from which she derived a negligible income.  She is currently unable to undertake regular paid employment. The Respondent was born in 1963 and he is aged 55 years.  He is a professional.  His income is modest.  His taxable income for the year ended 30 June 2017 was $25,339. 

2. The parties commenced to live together in December 1996.  They were de facto partners for almost 21 years. 

3. There are two children of the relationship, Y born in 2001.  Y is now aged 18 years and is in VCE, the final year of his schooling, at H School. He is studying for his final examinations. His last exam is scheduled to take place on 12 November 2019.  The parties’ other child is X who was born in 2007. He is almost 12 years of age.  X attends N School and is in grade five.  He has significant needs. X has been diagnosed with autism spectrum disorder.  He also suffers from anxiety.  His behaviour is difficult to manage at times and he is prone to angry outbursts. School refusal has been a difficulty encountered by the parties and X. X’s school refusal became a challenge in the second half of 2018 resulting in him missing three consecutive weeks of school in term 4 of that year.  X’s school refusal has remained an ongoing issue between the parties and for the child throughout the course of 2019. 

4. Since X’s diagnosis with autism spectrum disorder in about 2012, the Applicant has consulted with at least 19 different professionals, including psychologists, therapists, paediatricians, occupational therapists, speech pathologists and autism professionals. She has been responsible for coordinating therapeutic support for X.

5. In August 2018, X commenced attendance upon the school psychologist, Ms J. X completed ten sessions with Ms J over a nine-month period. There was before the Court in evidence, correspondence of 4 April 2019 from Ms J to Dr L concerning X. In that correspondence, Ms J expressed concern about X’s mental health functioning and wellbeing.  Some of the matters in that correspondence included:

   (a)[X] reported that his aggression at home was often triggered by conflict between his parents and, in particular, his father’s refusal to communicate with his mother.

   (b)On 9 October 2018, an email was sent by [Ms J] to [X’s] parents, requesting a session together ‘to discuss an approach to managing [X]’s anxiety, diet and school refusal.  [X]’s mother agreed to participate… his father did not agree to attend.’

   (c)[X]’s father reported that he did not believe that [X’s] school refusal was a problem and that he knew how to manage [X’s] anxiety.  He did not appear to have insight into the role of avoidance in [X’s] school refusal, the impact of school refusal on his cognitive and social development or the negative impact of the continuing conflict in the home.

   (d)On 15 October 2018, with respect to arranging ‘a home visit as [X] had still not been to school… [X’s] father did not give consent.  A home visit was later conducted on 26 October 2018, however, [X’s] father did not agree to devising a concrete plan to get [X] to school, and did not believe that missing school was at the point of being a significant problem.

   (e)[X]’s school have expressed repeated concerns about [X’s] attendance, and reported that once [X] has down-regulated his distress in the morning he is calm and happy to be at school.  They have also been unable to engage [X’s] father in agreeing to a strategy to get [X] to school.

   (f)[X’s] parents are currently separating and have commenced legal proceedings, however, they both continue to reside in the home which is extremely stressful for [X], given the level of conflict.  In my last session with [X], which was the first for 2/2 (sic) months, he demonstrated hopelessness and negative thinking about himself and the future and reported that things at home were worse, and he felt ‘trapped, dark and stuck in the middle.’  While [X’s] parents remain living together domestically in a conflictual relationship, and his father does not engage with a consistent approach to manage [X’s] school refusal, it is unlikely [X’s] mental health will improve, and his aggressive behaviour and depressed thinking is likely to increase.’

6. In or around May 2019, the Applicant obtained an interim family violence intervention order against the Respondent. The order named the Applicant and the parties’ children as affected family members. As a consequence of the making of that interim order, the Respondent was required to vacate the G Street property. The Respondent then cross-applied for an intervention order against the Applicant; made an application to vary the terms of the intervention order; and further filed an appeal in the County Court of Victoria with respect to the intervention order being granted.

7. On 7 August 2019, the intervention order proceedings were finalised. No order was made. Each of the parties provided undertakings.  The Applicant undertook that she would engage reasonably with requests made by the Respondent pursuant to clauses 2 and 3 of the undertaking given by the Respondent in those proceedings and would respond in good faith.  The undertaking given by the Respondent on 7 August 2019, to last until 1 December 2019, was that he would, from 7 August 2019 for a period of one week, not attend the G Street property and thereafter, from 14 August 2019 to 1 December 2019, he would not attend the G Street property save to attend to see X for a maximum of three times a week as agreed between the parties and subject to X’s wishes, and otherwise be permitted to attend, and only as agreed, for the purposes of (a) spending time with X, subject to X’s wishes and (b) for the purposes of conducting repairs, maintenance and/or decluttering the home and/or garden.  Except as otherwise provided for in the undertaking, the Respondent further undertook not to attend the G Street property until 1 December 2019 unless he became ‘homeless’. The Respondent persisted with his appeal to the Country Court with respect to the making of the interim intervention order which was not operative from 7 August 2019. It was not until 13 September 2019 that he agreed to withdraw that appeal proceeding, bringing an end to the intervention order proceedings in total. 

8. X is also attending upon a paediatrician, Dr M. In a consultation with X on 19 August 2019, X expressed to her a view that he did not wish his father to return to the G Street property for the purpose of taking up residence in it.  In correspondence of 19 August 2019 from Dr M to Dr L, Dr M advised Dr L of the expression of this view and said further:-

   (a)X was:

   Visibly calmer and more communicative in clinic, is able to be regulated, and when he starts to get stressed can verbalise this ‘I don’t want to talk about this anymore;

   (b)The Applicant had told her that X was getting to school most days and participating in most things, that he was also getting to bed better;

   (c)X had wanted to talk about his father. Dr M said:

   he was a bit agitated when talking about this, and very adamant that his parents not be together and that they need to be permanently separated.  It is clear that he is anxious about the uncertainty, and about the possibility of dad coming back into the family home, but was not opposed to spending time with his dad otherwise.

   (d)Other comments made by X were:

   (i)it is a lot different and I’m liking it being different;

   (ii)they have to stay separated permanently because I don’t feel safe when they are in the same house;

   (iii)they can’t be in the same house because I can’t deal with all the fighting;

   (iv)dad was being violent towards mum and he might lose his job and then he will lose all his money;

   When Dr M asked him whether the violence was yelling and screaming or hurting physically, he said ‘pretty much both’.

9. In the following month, and on 14 September 2019, the Respondent returned to the G Street property.  The Applicant and the parties’ children were not present when the Respondent returned, and save for returning briefly to collect personal belongings and clothing, the Applicant and the parties’ children have not returned to the G Street property and are presently staying in accommodation elsewhere. Y is staying at the home of a friend, and the Applicant and X are staying at the home of another friend. Both children have made it clear to their mother that they refuse to return to the G Street property whilst their father is present. The living arrangements of the Applicant and X are temporary, and it is the Applicant’s evidence that they cannot continue. 

10. The Applicant alleged in her affidavit material, and the Respondent admitted, that the Applicant has since requested the Respondent to leave the G Street property and allow her and the parties’ children to return to take up occupation of that property. The Respondent has refused to depart.

11. In her affidavit affirmed 17 September 2019, the Applicant set out some history of the ongoing conflict and argument between the parties witnessed by the children, together with the Respondent’s denigrating behaviour toward her. Such conflict has produced, in the observation of the mother, a ‘marked deterioration in X’, who has become increasingly difficult to manage. His outbursts have increased, and he has broken many items in the home in frustration.

12. When the Respondent notified the Applicant that he proposed returning to the G Street property, she attempted to source alternative arrangements for accommodation for the Respondent, proposing three alternatives to him for which she offered to pay the associated costs. In order to pay such costs, she was required to turn to family members to request that funds be made available to meet such expense. Whilst she has some limited savings ($18,000 in a bank account in her name), she requires those funds to ongoing support herself and the children. The Applicant was, in her offer made to the Respondent, assisted by her mother’s assurances that she would meet the costs of alternative accommodation for the Respondent until the end of the year or possibly for a further period. The proposals put forward by the Applicant were reasonable and clearly intended to assist in obtaining appropriate accommodation for the Respondent and to assist in the funding of such accommodation. 

13. The Applicant said in paragraph 45 of her affidavit the following:

    ‘(The Respondent’s) return to G Street has caused me to feel extremely anxious and distressed.  We cannot continue to reside under the same roof.  To do so is detrimental to the wellbeing of the children and us both. I’ve sought to borrow funds from my mother to pay for accommodation for (the Respondent) on an urgent basis and also sought that steps be taken to place G Street on the market as soon as Y completes his last examination (by mid-November 2019) to enable (the Respondent) and I to both have access to funds to rehouse ourselves. 

1. There is no evidence that the Respondent made any attempt to find alternative accommodation for himself, or to make any arrangements other than his resuming occupation of the G Street property. 

2. The adult child, Y, completing his year 12 made it clear to both his mother and father that he would not return to the G Street property whilst his father was in occupation there. The child X also refused to return to the G Street property, and on his mother’s evidence was ‘crying and very distressed’.

3. On the hearing of the matter, the Applicant agreed to make provision to the Respondent of the sum of $5000 to be reimbursed to her, or not, as determined by the trial judge, in order to assist the Respondent in obtaining alternate accommodation. She agreed to the payment of such moneys by her within a 24-hour period. Such provision of moneys was in response to the oral evidence given by the Respondent that he had no funds, indeed that he had ‘$300 in the bank’. The Respondent’s evidence was further, as to the earlier offers of alternative accommodation and the terms of such offers made by the Applicant, that same were vague and he was unable to pursue them. Other of the oral evidence given by the Respondent was his referral to, and reliance upon, a decision of Cronin J of 6 February 2019. In respect of that, the Respondent claimed, essentially, that those reasons went to the failure of the sole use application.

4. The reasons of Cronin J of 6 Feb 2019 related to the Applicant seeking an early trial date.  At no time prior to this application has the Applicant made a sole use application. There has been considerable deterioration in the parties’ relationship, and in the functioning of the child X, in particular, in the intervening period between 6 February 2019 and the time at which the Applicant deemed it necessary to seek the order that she has. The application before His Honour Cronin J was one for expedition of the current proceedings before the Court, an application which was opposed by the Respondent.  The Applicant’s application before Cronin J was refused.

5. In paragraph 11 of the reasons for judgment, His Honour said relevantly:

   In filing her application for final orders, the Applicant did not seek interim orders.  I have concluded that at that time, and with both parties living under one roof, the situation was manageable.  There does not appear to have been a subsequent application for interim orders…

6. His Honour also said further in those reasons for judgment at paragraph 22, relevantly:

   To the extent that it is asserted that an expedited trial would avoid serious emotional, psychological trauma to a party or a child, neither party has claimed with particularity and as I have already observed, I consider the Respondent is obfuscating in respect of what final orders he would propose’. 

7. There now has been an application for interim orders.

Approach to These Proceedings

1. In Davis and Davis (1976) FLC 90-062, the Full Court said at page 75,309:

   The criteria for the exercise of the power under section 114(1) are simply that the Court may make such orders as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party’.

2. The Court notes that the injunction sought in these proceedings is referrable to section 114 of the Act, and in particular notes paragraph 114(2A) of the Act which is as follows:

   In a de facto financial cause…the court may:

   (a)make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

   (b)if it makes an order or grants an injunction under paragraph (a) – make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

   (i)that residence; or

   (ii)a specified area in which residence is situated;

   (c)make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

   Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under s 90SM.

   Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that related to proceedings referred to in paragraph (e) or (f) of that definition.

   Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

3. In Mikele & Mikele (2008) FamCA 651, Cronin J said at paragraphs 29 to 32 inclusive:

   In Page v Page (1981) FLC 91-025 the Full Court adopted with approval the English decision of Bassett v Bassett (1995) 1 All ER 513. In Bassett, Cumming-Bruce J said that the approach to exclusive occupancy should be strictly practical having regard to the realities of family life.  In other words, it was necessary to examine with the utmost care whether it was practicable for both husband and wife to live in the matrimonial home.  His Honour said that where there were children whom one party was looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents and that that factor ought to weigh at least as heavily in the scales as the personal protection of the parent seeking relief. 

   In Page the Full Court said where there is an intolerable situation rendering it imperative for the parties to be separated, the approach set out in Bassett should be followed.  The Full Court went on to say:

   In many cases the need to provide a home for the children will be a decisive factor.

   Page’s case was examined in Davis v Davis (1983) FLC 91-319. The Full court referred with approval to a statement by Lindenmayer J in Price and Price an unreported decision in 1982.  Lindnemayer J said of Page’s case:

   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 to co-occupation of the house with the other party or that there has been some contact by the other party which justifies his exclusion from the home.  All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.

   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.

4. The Court finds that sections 90SB and 90SK of the Act have been satisfied.

Consideration and Conclusion

1. The needs of the children primarily determine the outcome of this application.  X has demonstrated in very clear terms that residing in the G Street property with both his mother and father has become intolerable. Y’s actions also indicate that Y has found the situation intolerable. He has voluntarily removed himself from the premises and in the face of his father’s continued occupation of same, refuses to return.  The expression of X’s views to Dr M and to MS J are concerning, and evidence that X’s emotional advancement and stability cannot be achieved if his father is to remain in the household. 

2. The children are both disadvantaged by residing in households separate from each other and in circumstances where they are imposing upon good friends.  They want the familiarity of their own home. It is essential for Y who is attempting his final year examinations and essential for X given his autism spectrum disorder; need for stability; and need for eradication of the conflict between his mother and father. It is not simply a matter, as the father would have it, that the children can return to the home and he would welcome them.  They do not wish to return to reside with him at the present time.  X requires the care provided to him by his mother and is required to be supported in the provision of that care by being re-established in the home environment, at least until the end of the year. 

3. The making of an order as sought by the Applicant does create some hardship for the Respondent, in that it is acknowledged by the Applicant that the Respondent has limited funds and in that regard faces difficulty re-housing himself.  However, she has made provision of the sum of $5000 to enable him to so re-establish himself in the short term, and she has proposed an immediate sale of the G Street property to enable each of the parties to have access to funds. It is the Respondent who is delaying that sale, and who has done so to the present time. Access to sale proceeds represents some solution to the problems of the family, but it is not a solution which the Respondent is prepared to consider and bring into effect, even in circumstances where he acknowledges that there ultimately must be a sale of the G Street property. The Respondent does have employment, and whilst I am conscious of it being no small matter to require him to leave his home, it is appropriate that he do so. The needs of the Applicant and the needs of the children, the hardship caused in particular to the children, and the ongoing conduct of the Respondent justify the departure from the home of the Respondent by order of the Court.  The Court finds the making of such order is proper.

4. The Respondent will be given a further week from the making of these orders to vacate the G Street property.  He was aware of the application for one week - indeed it has been very much a live issue between the parties for a number of months now. Unfortunately, without an order of the Court, the Respondent will not vacate the property, and so the order also becomes not only proper but necessary.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 4 October 2019.

Associate: 

Date: