RUSKIN & BONNER
[2016] FamCA 765
•9 September 2016
FAMILY COURT OF AUSTRALIA
| RUSKIN & BONNER | [2016] FamCA 765 |
| FAMILY LAW – CHILDREN – Spend time with – application by the husband to increase his time with the children on a regular basis and to have increased time pending the wife travelling overseas with the children over Christmas – where the children are very young – recommendations of the family report writer considered – where the parties intend to meet with the family report writer in several weeks for a further interview – interim orders made for the husband to spend more time with the children but on a graduated basis – application for increased time prior to the Christmas holiday and in 2017 adjourned until after the completion of the updated family report. FAMILY LAW –PROPERTY – INJUNCTIONS – Sole use and occupation – application by the husband for a vacant property owned by the parties – where the wife opposes that application on the basis that she lives in a property in the same road as the vacant property and is fearful of the husband – where the wife previously made an application for the husband to occupy the property currently lived in by her and that she have sole use of the property the husband now seeks sole use and occupation of – orders made for the husband to have sole use and occupation of the vacant property. |
| Family Law Act 1975 (Cth) |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 |
| APPLICANT: | Mr Ruskin |
| RESPONDENT: | Ms Bonner |
| FILE NUMBER: | MLC | 2646 | of | 2016 |
| DATE DELIVERED: | 9 September 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 6 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby |
| SOLICITOR FOR THE APPLICANT: | Gadens |
| COUNSEL FOR THE RESPONDENT: | Mr Strum QC |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
BY CONSENT IT IS ORDERED:-
(1)That paragraphs 2 and 3 of the Orders made on 14 April 2016 be discharged.
(2)That the husband and the wife have equal shared parental responsibility for:-
(a)V born … 2011(“the older child”); and
(b)E born … 2014 (“the younger child”).
(3)That the children live with the wife.
BY THE COURT IT IS ORDERED
(4)That until further order the older child spend time with the husband as follows:-
(a)Each Wednesday from the conclusion of kindergarten or 3.30 pm (whichever is earlier) to 7.30 pm;
BY CONSENT IT IS ORDERED
(b)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 9 September 2016 to 11.00 am on Sunday 11 September 2016;
(c)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 23 September 2016 to 1.00 pm on Sunday 25 September 2016;
(d)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 7 October 2016 to 3.00 pm on Sunday 9 October 2016;
(e)As and from Friday 21 October 2016 each alternate weekend from the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday to 5.00 pm on Sunday;
(f)As may otherwise be agreed between the parties from time-to-time.
(5)That until further order the younger child spend time with the husband as follows:-
(a)Each Wednesday from 1.00 pm to 7.30 pm;
BY THE COURT IT IS ORDERED
(b)On Saturday 10 September 2016 from 12.00 pm to 5.00 p.m;
(c)On Friday 16 September 2016 from 12.00 pm to 5.00 pm;
(d)On Saturday 24 September 2016 from 11.00 am to 5.00 pm;
(e)On Friday 30 September 2016 from 11.00 am to 5.00 pm;
(f)Each alternate Saturday, commencing 8 October 2016 from 10.00 am to 5.00 pm;
(g)Each alternate Friday, commencing 14 October 2016 from 10.00 am to 5.00 pm;
(h)As may otherwise be agreed between the parties from time-to-time.
BY CONSENT IT IS ORDERED
(6)That save for when the husband is collecting the children from the older child’s dancing class, all changeovers occur at the wife’s residence unless otherwise agreed between the parties.
(7)That the husband be in substantial attendance during the times he is spending with the children pursuant to paragraphs 4 and 5 hereof.
(8)That to enable the travel provided in order 13 hereof the orders made on 30 March 2016 be and are hereby suspended and the children’s names be forthwith removed from the Airport Watch List.
(9)That the wife forward a sealed copy of these orders to the Australian Federal Police with a request that the children’s names be forthwith removed from the Airport Watch List.
(10)That in the event that either party intends to travel outside the State of Victoria or the Commonwealth of Australia with the children during periods that they spend time with them, they shall advise the other at least seven days prior to such travel in the event that the travel is interstate, and 30 days in the event that the proposed travel is overseas, and further provide an itinerary to include the departure and return dates, the State, country or countries the travelling party and the children will be travelling to, the approximate dates on which the children will arrive and depart each destination and a contact telephone number and an address at which the travelling party and the children can be contacted at each destination.
(11)That the parties, their servants and their agents be and hereby restrained from:-
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or the other party’s family in the presence or hearing of the children;
(b)Photographing or recording the other at changeover;
(c)Speaking to the other party or any person with the other party at changeover save and except for any urgent issue concerning the children’s welfare.
(12)That within 14 days of the date of these Orders both parties do all acts and things and sign all documents required to renew the older child’s passport and that the costs of renewing the older child’s passport be solely met by the husband.
BY THE COURT IT IS ORDERED
(13)That the wife be at liberty to take the children on holiday to Europe for a period of no more than four weeks commencing 24 December 2016 to 21 January 2017 (“the holiday”).
BY CONSENT IT IS ORDERED
(14)That the wife advise the husband of the flight details for her and the children to and from the Commonwealth of Australia once confirmed, no later than 30 days prior to departure.
(15)That while the children are on the holiday, the wife facilitate Skype or Facetime communication between the children and the husband twice per week at times to be agreed.
(16)That there be reasonable make-up time by agreement between the parties in relation to time with the husband foregone during the children’s absence overseas.
(17)That the children spend time with the husband on Yom Kippur in 2016, being Wednesday 12 October 2016 in accordance with paragraph 4 hereof.
(18)That the children spend time with the husband on Rosh Hashanah in 2016 as follows:-
(a)In the case of the older child, from 5.00 pm on the first day, being Monday 3 October 2016 until 5.00 pm on the second day being Tuesday 4 October 2016;
(b)In the case of the younger child, from 1.00 pm to 5.00 pm on the second day being Tuesday 4 October 2016.
BY THE COURT IT IS ORDERED
(19)That until further order the husband have exclusive use and occupation of the property situate at and known as 7 A Street, Suburb K being the whole of the land more particularly described as Certificate of Title Volume … Folio ...
(20)That all extant interim applications be adjourned for further hearing in the Senior Registrar’s list on 4 November 2016 at 10.00 am.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruskin & Bonner 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 MELBOURNE |
FILE NUMBER: MLC 2646 of 2016
| Mr Ruskin |
Applicant
And
| Ms Bonner |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before me in a Judicial Duty List upon the applications of the husband and the wife seeking orders with respect to parenting arrangements for their two children. In addition, the husband seeks an order that he have sole use and occupation of the property owned by the parties at 7 A Street, Suburb K.
Whilst there was agreement between the parties with respect to many aspects of their competing applications, the following issues required determination:-
· Whether the time spent by the husband with the older child each Wednesday should be extended to include overnight time;
· Whether the time spent by the husband with the younger child should include overnight time and if so, when such time should commence;
· When the wife and the children should commence their four week holiday in Europe, the wife seeking that that time commence on 18 December 2016 and the husband seeking that the time commence on 25 December 2016;
· The husband’s application that he have sole use and occupation of the property at 7 A Street, Suburb K.
These are my reasons for judgment with respect to those issues.
The Parties
The husband is the applicant in the proceedings. He is aged 41 years. He is a medical professional and is self-employed.
The wife is the respondent in the proceedings. She is aged 38 years and is engaged in home duties.
The parties married in 2009 and final separation occurred on 26 March 2016.
There are two children of the marriage, V born in 2011 (aged five years, “the older child”) and E born in 2014 (aged 21 months, “the younger child”).
Background
Proceedings were commenced upon the husband filing an Initiating Application in the Federal Circuit Court of Australia at Melbourne on 30 March 2016. The husband sought in that application interim orders that he spend time with the children and further orders that the wife be restrained from removing the children from the Commonwealth of Australia and that they be placed on the Watch List at all points of arrival and departure from Australia.
The hearing of that application was abridged and initially, was dealt with by the Court on an ex-parte basis. Orders were made on 30 March 2016 restraining the wife from removing the children from Australia and requesting that the children’s names be placed upon the Airport Watch List. The proceedings were otherwise adjourned to 14 April 2016 to enable service of the applications upon the wife.
On 14 April 2016 further orders were made with respect to the husband spending time with the children. Those orders provide that the husband spend time with the older child each alternate Friday from 3.30 pm to 5.00 pm Saturday, each alternate Saturday from 1.00 pm to 5.00 pm and each Wednesday from 3.30 pm to 7.30 pm. Hence, the husband is currently spending one night per fortnight with the older child as well as time each Saturday and each Wednesday. The orders provide that the husband spend time with the younger child each Saturday from 1.00pm to 5.00 pm and each Wednesday from 1.30 pm to 7.30 pm. The husband currently spends no overnight time with the younger child.
In addition, as a result of the dispute between the parties as to the use and occupation of the property at 7 A Street, Suburb K, paragraph 6 of the orders provides as follows:-
Neither party have occupation of [7 A Street], [Suburb K], Victoria …, without further order or agreement in writing from the other party.
The property the subject of that order is the property the husband now seeks to occupy.
Orders were also made for:-
·partial property settlement in favour of each party;
·the payment by the husband to the wife of periodic and non-periodic amounts for the support of the wife and children;
·the parties to attend upon Dr T, psychiatrist for assessment and report; and
·the parties to also attend upon Ms S for the purposes of the preparation of a Family Report.
Further, orders were made that day for the transfer of the proceedings to the Melbourne Registry of the Family Court of Australia.
The matter came before Registrar Mestrovic on 13 May 2016. That day the Registrar made orders listing all extant applications before me in the Judicial Duty List. Further orders were made with respect to the valuation of properties and for disclosure.
Following the parties’ separation, application was made on behalf of the wife in the Magistrates’ Court of Victoria for an Intervention Order against the husband. On 5 May 2016 an interim order was made against the husband which included that the husband not:-
6.approach or remain within 5 metres of [the wife].
7.go to or remain within 25 metres of [6 A STREET], [SUBURB K] or any other place where [the wife] lives, except for reasonable transit.
The wife’s application for an Intervention Order has otherwise been adjourned for further hearing on 14 October 2016.
Material Relied Upon By The Parties
In support of his application, the husband relies upon the following documents:-
·Further Amended Initiating Application filed 2 September 2016;
·Affidavit of Ms S filed 5 August 2016;
·Paragraphs 29 and 47 to 48 of the wife’s affidavit filed 13 April 2016;
·The husband’s affidavits filed 21 June 2016 and 2 September 2016.
The wife relied upon the following documents in support of her application:-
·Minute of Orders sought dated 6 September 2016;
·Amended Response filed 2 September 2016;
·Affidavit of the wife filed 2 September 2016;
·Paragraph 16 of the husband’s affidavit filed 30 March 2016; and
·Husband’s Financial Statement filed 13 April 2016.
The Orders Sought
The husband sought orders in the terms of the Minute of Orders sought by the wife save with respect to the following:-
(a)In respect of his time with the older child, the husband sought that the Wednesday time commence at the conclusion of kindergarten or 3.30 pm and conclude at 7.30 am on Thursday. The wife’s position is that the Wednesday afternoon time should conclude at 7.30 pm.
(b)With respect to the husband’s time with the younger child, the husband sought that his overnight time commence immediately. During the course of the hearing, the husband modified that position and ultimately sought orders that his time with the younger child be as follows:-
·Each Wednesday from 1.00 pm to 7.30 pm. The wife conceded that an order in those terms is appropriate and accordingly I will make an order in those terms by consent.
·Each Friday from 10.00 am to 5.00 pm. That application was opposed by the wife.
·Each Saturday to coincide with the older child’s alternate Saturdays from 10.00 am to 5.00 pm. The wife agreed with that proposal, save that its implementation should be graduated over a period of six weeks.
·Commencing Term 1, 2017 from 10.00 am Friday to 10.00 am Saturday each alternate Friday, such time to coincide with the older child’s alternate weekend time with the husband. The wife opposed that application.
(c)The husband sought an order that he spend time with the older child from 19 December 2016 to 24 December 2016 inclusive. The wife opposed that application.
(d)The husband sought that he spend time with the younger child during the period 19 December to 24 December 2016 from 10.00 am to 6.00 pm each day during that period. The wife opposed that order
In addition, the husband sought orders that he have sole use and occupation of the property at 7 A Street, Suburb K. That application was opposed by the wife.
The Hearing
The hearing was conducted on the papers. Each party relied upon the material referred to above and submissions made.
Both parties were represented by counsel, the wife by Senior Counsel.
Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly in determining the matter, I have relied upon those facts which are agreed or not in issue.
Parenting Matters
In determining the interim parenting matters, the Court must regard the best interests of the children as the paramount consideration (Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 (“Goode’s case”)).
The Full Court confirmed in Goode’s case that in determining interim parenting applications the Court should:-
(a)Identify the parties’ competing proposals;
(b)Identify the issues in dispute;
(c)Identify any agreed or uncontested relevant facts; and
(d)Consider the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are relevant and if possible thereafter, make findings.
Both parties placed heavy reliance upon the report of Ms S in support of their positons with respect to the interim parenting arrangements.
The husband contends that his application accords with the recommendations contained in Ms S’s Family Report dated 1 August 2016 and annexed to her affidavit filed 5 August 2016.
In particular, the husband placed reliance on paragraph 39 of Ms S’s Report wherein she states:-
In the interim increase in the children’s time with their father needs to be given consideration. Both children appear to be happy, comfortable and secure with their Father. There is nothing to suggest that [the father] is not able to provide good care for the children. [The older child] is of an age where she is able to accommodate overnight care away from her Mother. [The older child] will benefit from increased time with her father and an increase in time is recommended. [The older child’s] time with her father can occur each alternate weekend from after kinder/school on Friday to Sunday evening. There should be other weekly times when she is spending time with her father such as each Wednesday as proposed by both parents which can include an overnight stay for [the child].
Whilst there is agreement between the parties for an extension of time for the older child with the husband on weekends, there was no agreement as to whether the Wednesday time should include overnight time. It was submitted on behalf of the husband that the recommendation by Ms S is clear, that she has had the advantage of observing the children with the parties and that the observations of Ms S confirm that the children enjoy warm and loving relationships with both parents. Having regard to all of those factors, it was submitted that the older child’s time with the husband should be extended to include overnight time on Wednesday evenings.
The wife opposed the extension of time to include overnight time on Wednesday evenings. Further, it was the wife’s position that there should be a graduated extension of the older child’s weekend time with the husband over a six-week period. The graduated extension of the child’s weekend time with the husband was ultimately conceded by counsel for the husband.
It was submitted on behalf of the wife that in circumstances where until now the older child has had only one overnight period with the husband per fortnight, it would be contrary to her best interests to move from those arrangements to four nights per fortnight.
The Report of Ms S dated 1 August 2016 confirms that she met with the parties and the children on 29 June 2016. Further, she had a telephone discussion with the director of H School, the school attended by the older child on 26 July 2016.
The evidence of Ms S is significant insofar as she has had the benefit of meeting the parties and also observing them with the children the subject of these proceedings. She describes the children and their relationship with both parents in positive terms. At paragraph 24 of her report she describes the older child as a “bright, cheerful and delightful young girl; effervescent, confident and articulate”.
At paragraph 29 of her Report Ms S makes the following observations of the children with the parents:-
The observations of the children and the parents during the day confirmed the close and warm relationship that the children have with each parent. The older child freely and confidently approached her Father when she saw him and reacted with obviously glee. [The wife] gently and warmly helped to hand over [the younger child] from the stroller to her Father. [The husband] and [the wife] were overtly courteous with one another but there was little attempt to engage other than to pass over the children’s items…
At paragraph 30 of her Report she notes:-
… The children, particularly [the older child] delighted in each parent’s attention and there is little doubt that she is comfortable and secure with each parent. It was not possible to make an adequate assessment of [the younger child] who was asleep for some of the time and whose behaviour upon waking, was subdued and restrained. Both parents indicated that this was normal behaviour for [the younger child] upon waking.
I accept Ms S’s evidence as to the relationship enjoyed by the children with each of their parents.
As a result of the limited opportunity Ms S had to assess the younger child, Ms S indicates at paragraph 31 of her Report that she proposes to have a further meeting with the family to better assess the younger child’s attachment and developmental needs. I was informed during the course of submissions that a further appointment is scheduled to occur with Ms S on 22 September 2016. Further, it is anticipated that Ms S will conduct home visits with the parties to undertake assessment prior to the preparation of a further report with respect to parenting issues.
Given the observations made by Ms S as to the close relationship the older child enjoys with the husband and her obvious confidence and enjoyment of that relationship, I am satisfied that the extended weekend time with the husband should commence as soon as practicable. Having said that, I am also satisfied that there is force in the submission made by the wife (and ultimately accepted by the husband) that from the child’s perspective it would be preferable that there be a gradual introduction of that extended time. The extension of time does represent a significant change from the child’s perspective. She is a young child, still in kindergarten and any significant change to her routine must be approached sensitively to ensure there is minimal disruption to her routines. The goal for both parties must be to ensure that the implementation of the new routine is done so sensitively to ensure that the older child experiences a seamless transition to the new routine. With that in mind, I am satisfied that there should be a gradual extension of that time as sought by the wife.
The issue in contention with respect to the husband’s time with the older child relates to whether or not Wednesday time should include overnight time. Whilst Ms S has indicated in her Report that such Wednesday afternoon time can include overnight time, I am mindful that Ms S is scheduled to undertake further observations with the parties. She is to provide a supplementary report upon completion of those observations. As a result of the further observations to be undertaken, I propose to list this matter for consideration upon that report becoming available. Accordingly, at this stage, given that there is already a significant change to be implemented with respect to the older child’s time with the husband, I do not propose to order overnight Wednesday periods.. This can be a matter further considered at the adjourned hearing of the applications.
Currently the husband spends time with the younger child for a period of four hours each Saturday and six hours each Wednesday. It is agreed between the parties that the Wednesday time continue and be extended to a period of six and a half hours.
In addition to that time, the husband seeks an extension of the Saturday time so that it occur between 10.00 am and 5.00 pm on the Saturdays that coincide with the older child’s time with the husband. Further, the husband seeks daytime periods with the younger child each Friday from 10.00am to 5.00 pm.
The wife opposes time on Fridays and otherwise agrees with the Saturday time, save that there be a gradual extension of that time. Again, the husband placed significant reliance upon the recommendations of Ms S in support of his position.
With respect to the younger child Ms S observed at paragraph 42 of her Report as follows:-
[The younger child] is best served by a slow and staged development of overnight time as it is preferable for her that she is assisted to manage the transition and is not overwhelmed as she settles into a new routine. To this end, developmentally [the younger child] would most likely do better introduced to more daytime contact initially and then gradually increasing overnight time. This will assist her to tolerate well-managed extended overnight time. Once she has had a period of regular overnight time (once a week), it is likely that she will then be able to progress to two consecutive nights.
At paragraph 43 of her Report Ms S recommended as follows:-
Specifically, the current routine for [the younger child] can increase to one full day with her Father till she is about two years old. Return time should be at least one hour before her usual bedtime to allow her to settle and re-establish the routine with her Mother. The increased time should continue for about another three to four months so that overnight time can be considered when [the younger child] is two years old.
Having regard to those recommendations, particularly in circumstances where a further report is anticipated from Ms S after she has had the opportunity of undertaking further observation of the children and particularly the younger child, in my view orders at this stage should be made for the husband to spend extended daytime time with the younger child to coincide with his time with the older child each alternate Saturday. Ms S has emphasised in her report the importance of a slow and staged extension of the husband’s time with the younger child. Having regard to those observations in my view, it is appropriate and in the child’s best interests that the extension of her time with the husband be implemented over a period of weeks, as proposed by the wife, again to coincide with the older child’s time. The younger child should have the opportunity of spending a full day with her father on a weekly basis. Accordingly I will order that she spend time with the husband each alternate Friday to ensure that she is spending one full day per week with the husband on either Friday or Saturday in addition to her Wednesday time.
The husband also seeks that I make orders with respect to the time to be spent by him with the children in the period leading up to the wife’s departure to Europe on holiday. Given that the matter will return before me in November 2016 at a time when I am likely to have the benefit of the additional report from Ms S, in my view it would be premature to make any orders with respect to that period at this time. Similarly, I do not propose to make any parenting orders for the children’s time with the husband in 2017 in circumstances where an addendum to Ms S’s report is to be prepared and made available to the parties. Again this is a matter that can be considered at the adjourned hearing of these applications.
The final parenting issue to be determined relates to when the wife and children commence their holiday in Europe in the December/January 2016 period. The wife seeks to depart Australia on 18 December 2016. It is the husband’s position that the departure should be delayed until 25 December 2016.
The husband’s position is that he proposes to take leave from work in the week commencing 19 December 2016 and therefore seeks the opportunity of spending some additional time with the children prior to their departure from Australia. It is submitted on behalf of the husband that that period of time is important in circumstances where there will be an interruption of his time with the children for a period of four weeks.
The wife’s positon is that she seeks to have the opportunity of spending the traditional holiday period with her family in Europe, that is, the two-week period commencing the week prior to Christmas Day. It was submitted that the wife’s family will be on holiday and available to spend time with her and the children during that two week period. It is on that basis that she submits that she should be permitted to travel from Australia on 18 December 2016.
Whilst there are no doubt advantages to the wife and children in spending time with the maternal family during the traditional European vacation period, the reality is that she will be in Europe for a period of four weeks and will no doubt have ample opportunity of spending time with those family members both during the vacation period in the week following Christmas as well as the subsequent three weeks.
The husband works full-time and has indicated to the Court that he will be taking leave from his employment to ensure that he is available to spend time with the children in the week preceding their departure from Australia. Having regard to the ages of the children, there is a risk that a four-week interruption in the husband’s time with the children will impact on his relationship with them. The opportunity to spend some additional time with the children in the lead-up to that holiday may mitigate the impact of the interruption of his time with them.
In my view the husband’s relationship with the children must take priority over the opportunity to spend additional vacation time with members of the maternal family. Accordingly, I am satisfied that it is in the children’s best interests that orders be made permitting travel to occur as and from 24 December 2016. Although I will make orders in relation to when the wife is permitted to travel overseas with the children, as already discussed I do not propose to make orders at this stage as to the time the children will spend with the husband prior to the wife and the children departing from Australia.
Sole Use And Occupation
The husband seeks orders that he have sole use and occupation of the property at 7 A Street, Suburb K. That property is jointly owned by the parties and is currently vacant. It is the property that was being renovated by the parties in the latter period of the marriage, it being the parties’ intention that it would become the matrimonial home upon completion. The parties’ separation occurred prior to the completion of the renovations.
Currently, the husband lives at the home of his parents. Given the completion of the property at 7 A Street, the husband now seeks to occupy that property, to live independently and provide a home for the children.
The wife does not seek to occupy 7 A Street. However, she opposes the husband’s use of that property on the basis that she says that she is fearful of having the husband living in close proximity to her.
At paragraph 24 of her affidavit filed 2 September 2016 the wife deposes as follows:-
The [7 A Street] property is approximately 8 houses away from the [6 A Street] property. The husband is aware that I am fearful of him and there is a current intervention order in place as a result of his past behaviour towards me. If the Husband is permitted to reside in the [7 A Street] property, I will not feel comfortable living in the [6 A Street] property with the children. The husband’s desire to move so close to me is demonstrative of the continuing controlling and bullying behaviour he has shown towards me since our separation.
The difficulty with that evidence is that earlier in the proceedings the wife made proposals that the parties occupy the properties held by them in A Street. In her original application to the Court, the wife proposed that she occupy the property at 7 A Street and that the husband occupy the property at 6 A Street. Indeed in her affidavit filed 13 April 2016 (which was filed after she had made her application for an intervention order against the husband but before the interim order was made) the wife deposed at paragraph 29 as follows:-
It is my proposal that the time that the children spend with the husband take place in the [6 A Street] property. I will agree to vacate the property whilst he cares for the children. This will minimise any impact on the children as they will be in familiar surrounds particularly for [the younger child]. It is also my application that I take occupation of the property at the [7 A Street] property once the renovations are completed. If the husband takes occupation of [6 A Street], the husband will be able to continue his contact with the children there which will facilitate any graduated increase in the time that the children spend with him and it enables it to take place in familiar surroundings to them.
Seemingly, the wife’s fear of the husband was not of such moment at the time she swore that affidavit.
Senior counsel for the wife submitted that the Court does not have jurisdiction to entertain the husband’s application for sole use and occupation of 7 A Street. It was submitted that the provisions of s 114AB(2) of the Act act as a bar to the making of that order in circumstances where an interim intervention order is in operation and there are pending proceedings with respect to those orders in the State Magistrates' Court. Section 114AB(2) provides as follows:-
Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a)where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action—neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
I do not accept that submission. The husband has not instituted proceedings in the Magistrates' Court of Victoria; those proceedings have been instituted by the wife and are opposed by the husband. Further, it is evident from the interim intervention order to which I have referred earlier in this judgment that the proceedings relate to the protection of the wife and orders have been made with respect to the husband’s ability to approach the property at 6 A Street. No State orders are in force and no State proceedings are on foot with respect to the property at 7 A Street. Accordingly, I am satisfied that the use and occupation of the property at 7 A Street is not a matter of which the State courts are seized.
I am satisfied that the Court has the power to make orders as sought by the husband, provided that such order is proper in the circumstances of the case. An order for sole use and occupation of a property, being an exercise of the court’s discretionary injunctive power, should not be made lightly, particularly given that the court will not lightly interfere with the rights of property owners on the basis of vague or uncertain claims. 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. In determining the manner in which it will exercise its discretionary power, such relief should not depend merely on the balance of convenience or hardship; rather, the court should have regard to the means and needs of the parties, the needs of any children, the conduct of the parties and should also properly balance the hardship to each party (and any children) of making or refusing to make the orders sought.
The wife asserts that she is fearful of the husband. However, she can point to no conduct by him since the making of the intervention order which would provide a basis for such fear. There is no allegation that the husband has breached the interim intervention order.
It was common ground between the parties that the property at 7 A Street is approximately 350 metres from the property occupied by the wife and the children. Further, it was common ground between the parties that the houses are on opposite sides of a major intersection at A Street and B Street. I am satisfied that the protection afforded to the wife by the interim intervention order insofar as that order prohibits the husband from approaching within 25 metres of her residence is not at risk of breach if the husband is permitted to occupy the property at 7 A Street.
The property at 7 A Street is a substantial asset, the husband estimating it to be valued at $6,850,000. The proposal of the wife that it remain vacant must be contrary to the financial interests of the parties. Left vacant there is a risk of damage from intruders, the parties’ entitlements under any insurance policy may be compromised and it was submitted on behalf of the husband that the parties may be liable for land tax.
Further, I am satisfied that there is a significant advantage to the children if the husband is in a position to establish his own home. This is particularly so in circumstances where there are allegations raised by the wife and in the report of Ms S as to inappropriate behaviour by the paternal grandparents (with whom the husband is currently living) towards the children, those allegations being they they denigrated the wife to the children and smacked the children.
Having regard to all of those matters, I am satisfied that it is appropriate that an order be made for the husband to have the use and occupation of the property at 7 A Street.
Accordingly, I make orders as follows:-
BY CONSENT IT IS ORDERED:-
(1)That paragraphs 2 and 3 of the Orders made on 14 April 2016 be discharged.
(2)That the husband and the wife have equal shared parental responsibility for:-
(a)V born … 2011; and
(b)E born … 2014.
(3)That the children live with the wife.
BY THE COURT IT IS ORDERED
(4)That until further order the older child spend time with the husband as follows:-
(a)Each Wednesday from the conclusion of kindergarten or 3.30 pm (whichever is earlier) to 7.30 pm;
BY CONSENT IT IS ORDERED
(b)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 9 September 2016 to 11.00 am on Sunday 11 September 2016;
(c)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 23 September 2016 to 1.00 pm on Sunday 25 September 2016;
(d)From the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday 7 October 2016 to 3.00 pm on Sunday 9 October 2016;
(e)As and from Friday 21 October 2016 each alternate weekend from the conclusion of kindergarten or 3.30 pm (whichever is earlier) on Friday to 5.00 pm on Sunday;
(f)As may otherwise be agreed between the parties from time-to-time.
(5)That until further order the younger child spend time with the husband as follows:-
(a)Each Wednesday from 1.00 pm to 7.30 pm;
BY THE COURT IT IS ORDERED
(b)On Saturday 10 September 2016 from 12.00 pm to 5.00 pm;
(c)On Friday 16 September 2016 from 12.00 pm to 5.00 pm;
(d)On Saturday 24 September 2016 from 11.00 am to 5.00 pm;
(e)On Friday 30 September 2016 from 11.00 am to 5.00 pm;
(f)Each alternate Saturday, commencing 8 October 2016 from 10.00 am to 5.00 pm;
(g)Each alternate Friday, commencing 14 October 2016 from 10.00 am to 5.00 pm;
(h)As may otherwise be agreed between the parties from time-to-time.
BY CONSENT IT IS ORDERED
(6)That save for when the husband is collecting the children from the older child’s dancing class, all changeovers occur at the wife’s residence unless otherwise agreed between the parties.
(7)That the husband be in substantial attendance during the times he is spending with the children pursuant to paragraphs 4 and 5 hereof.
(8)That to enable the travel provided in order 13 hereof the orders made on 30 March 2016 be and are hereby suspended and the children’s names be forthwith removed from the Airport Watch List.
(9)That the wife forward a sealed copy of these orders to the Australian Federal Police with a request that the children’s names be forthwith removed from the Airport Watch List.
(10)That in the event that either party intends to travel outside the State of Victoria or the Commonwealth of Australia with the children during periods that they spend time with them, they shall advise the other at least seven days prior to such travel in the event that the travel is interstate, and 30 days in the event that the proposed travel is overseas, and further provide an itinerary to include the departure and return dates, the State, country or countries the travelling party and the children will be travelling to, the approximate dates on which the children will arrive and depart each destination and a contact telephone number and an address at which the travelling party and the children can be contacted at each destination.
(11)That the parties, their servants and their agents be and hereby restrained from:-
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or the other party’s family in the presence or hearing of the children;
(b)Photographing or recording the other at changeover;
(c)Speaking to the other party or any person with the other party at changeover save and except for any urgent issue concerning the children’s welfare.
(12)That within 14 days of the date of these Orders both parties do all acts and things and sign all documents required to renew the older child’s passport and that the costs of renewing the older child’s passport be solely met by the husband.
BY THE COURT IT IS ORDERED
(13)That the wife be at liberty to take the children on holiday to Europe for a period of no more than four weeks commencing 24 December 2016 to 21 January 2017 (“the holiday”).
BY CONSENT IT IS ORDERED
(14)That the wife advise the husband of the flight details for her and the children to and from the Commonwealth of Australia once confirmed, no later than 30 days prior to departure.
(15)That while the children are on the holiday, the wife facilitate Skype or Facetime communication between the children and the husband twice per week at times to be agreed.
(16)That there be reasonable make-up time by agreement between the parties in relation to time with the husband foregone during the children’s absence overseas.
(17)That the children spend time with the husband on Yom Kippur in 2016, being Wednesday 12 October 2016 in accordance with paragraph 4 hereof.
(18)That the children spend time with the husband on Rosh Hashanah in 2016 as follows:-
(a)In the case of the older child, from 5.00 pm on the first day, being Monday 3 October 2016 until 5.00 pm on the second day being Tuesday 4 October 2016;
(b)In the case of the younger child, from 1.00 pm to 5.00 pm on the second day being Tuesday 4 October 2016.
BY THE COURT IT IS ORDERED
(19)That until further order the husband have exclusive use and occupation of the property situate at and known as 7 A Street, Suburb K being the whole of the land more particularly described as Certificate of Title Volume … Folio ...
(20)That all extant interim applications be adjourned for further hearing in the Senior Registrar’s list on 4 November 2016 at 10.00 am.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 September 2016.
Associate:
Date: 9 September 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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Consent
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Remedies
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