S and N
[2000] FMCAfam 48
•6 October 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & N | [2000] FMCA fam 48 |
| CHILDREN – Residence – Best interests of child – Conduct of parent – Contact – Best interests – Interim orders |
| Applicant: | H H S |
| Respondent: | P K N |
| File No: | ZP 573 of 2000 |
| Delivered on: | 6 October 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 6 October 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton, Barrister |
| Solicitors for the Applicant: | Penhall & Co, & Gordon Solicitors Burwood Rd, Burwood 2134 |
| Counsel for the Respondent: | Mr Wilson, Solicitor |
| Solicitors for the Respondent: | Watts McCray DX 8224 Sydney |
ORDERS
The wife’s application is dismissed.
The wife is to have contact with the children of the marriage each alternate weekend from 5.00 pm on Friday to 6.00 pm on Sunday, commencing on Friday 1 September, until further order.
During the weekend that the wife has contact with the children, the wife shall have exclusive occupation of the matrimonial home and the husband shall remain away from the property from 5.00 pm on Friday to 6.00 pm on Sunday.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 573 of 2000
| H H S |
Applicant
And
| P K N |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for interim orders that:
a)The children of the marriage, N, born 2 October 1995, and M, born 12 December 1996, reside with her;
b)The husband should have contact each week day;
c)She have exclusive occupation of the matrimonial home; and
d)The orders of the Family Court of Australia at Parramatta made on 16 June 2000 should be discharged.
The husband opposes these orders being made. Each party seeks final orders whereby the other party moves out of the matrimonial home, leaving the children with the remaining parent.
Background
The husband and wife were married in Malaysia on 19 July 1986. They came to Australia in 1990 and commenced working. They purchased the matrimonial home in 1994. Their son N was born on 2 October 1995 and their daughter M was born on 12 December 1996. The husband gave up work in about March 1997 and has stayed at home with the children. He attends TAFE classes in the evening. He has a leaking heart valve.
The relationship between the parties has been deteriorating for some time. The wife went back to Malaysia for a holiday in June and July 1999, taking the children with her. Whilst they were away, M suffered a burn to her chest, apparently caused by being scalded with hot Milo, and N occasioned some bruising.
The wife took precipitate action in June 2000 by resigning from her job in Sydney and seeking to move to Melbourne, where she had arranged employment, taking the children with her. The husband objected to this unilateral decision and took recovery proceedings in the Family Court, which resulted in the orders of 16 June. The wife has returned to the matrimonial home, where she is living with the children.
The parties’ proposals and orders sought
Each party wants the other to move out. Each wants to be the primary care-giver. The wife now says that she has resigned from her job, with effect from the end of August, and will live on her savings so that she can attend to the children’s needs on a full-time basis. The husband says that he will discontinue his TAFE course in the evenings so that he can care for the children.
Present arrangements
The parties are both living in the matrimonial home in a state of some tension. The wife goes to work in the mornings, and the husband stays at home with the children. The children sleep in the afternoon, which means that they stay up late in the evening. The husband goes to TAFE or studies in the evenings, so that the wife looks after the children when she comes home from work.
Issues
The husband says that he has been the primary care-giver since March 1997 and that the children should stay with him. He also says that the wife is not as concerned with the children’s welfare as he is, as witness the injuries the children suffered when they were away with their mother in Malaysia last year. He says that the mother is more capable of earning a higher income than he is, and he would be placed at a great disadvantage if he were forced to leave the home.
The wife says that the husband’s claim to be the full-time care-giver does not stand up to close scrutiny. She says that he has been unwilling to remain in employment and has been reluctant to return to the workforce. She also says that the husband demanded that she take the children to Malaysia with her, claiming that his heart condition made it unsafe for the children to remain with him. She says that she is working during the day and then looking after the children from the time she gets home from work, whilst the husband has had the advantage of time to himself whilst the children have been asleep for a large part of the afternoon.
Evidence
Both the wife and the husband gave oral evidence and were cross-examined at some length. The wife said that children were adaptable in answer to a question by the husband’s solicitor that children needed stability. She said that her sister-in-law was living in the home for moral support, but gave no evidence as to what role, if any, she played in caring for the children. Her plan to move to Melbourne was to get away from an unhappy marriage.
Her plan is to live on her savings until the son N starts school next year. She accepts that she cannot move to Melbourne with the children without the approval of the court. If the children were to remain with her husband, she would pay child support, and she would not give up work. Her motive in giving up work is to be available as a full-time parent.
The husband agreed that he has not earned any income since early 1997. His plan is to obtain tertiary qualifications through TAFE so that he can resume work when the children are older. He said that he did not continue employment with A P because they wanted him to start work at 5.am, which he could not do because he had to look after the children at night as well. He says that he does 95% of the cooking, and he does most of the work involved in taking their son to various doctors. He feared that the wife planned to take the children back to Malaysia with her permanently, and his fears were heightened when he found a document indicating that the son was to be enrolled in a primary school in Malaysia in 2002.
The principles to be followed
The court must regard the best interests of the children as the paramount consideration when making an interim residence order, or indeed, any parenting order. This is set out in section 65E of the Family Law Act 1975. It normally follows that the preferable course to be followed is one that ensures some stability in the children’s lives until the final hearing.
The question was examined by the Full Court of the Family Court of Australia in Cilento and Cilento (1980) FLC 90-847. The court said at 75345:
“While the court must always have regard to the welfare of the child as the paramount consideration that welfare will not be promoted by a decision based on inadequate and hastily prepared material presented at a circumscribed hearing … We consider that the interests of children will best be met by ensuring a degree of stability in their lives until the matter can be fully investigated by the Court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided.”
The Full Court looked at the question of interim residence again in Cowling v Cowling (1998) FLC 92-801, and basically reaffirmed the principles set out 18 years before in Cilento. The best interests of the child remain the paramount consideration. The Court was of the view that the best interests of the child will best be met by ensuring stability in the child’s life pending a full hearing of the relevant issues. Where the evidence clearly establishes that, at the date of the hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing of the final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary.
Conclusions
The wife’s unilateral actions in seeking to take the children away to Melbourne were precipitate and unwise. One may also question her decision to cease work and live on her savings with residence and property litigation looming.
At the same time, the husband’s proposals in the long run are hardly realistic. His proposals seem to be as much a set of excuses for making no change rather than a realistic approach to planning for a life where he is no longer married to a working wife. His citing of his heart condition as a reason for the wife’s not leaving the children with him whilst she holidayed in Malaysia throws some doubt on his ability to cope as a full-time parent, rather than as a daytime only carer who hands over the reins to his wife when she returns home each evening. The arrangement where the children sleep for some hours during the afternoon and then remain awake until 10.30 in the evening may suit the husband’s convenience but is hardly suitable for a child who is to start school next year. One can only doubt when the husband really intends to recommence employment, even on a part-time basis.
There is much to be said for the fact that the real stability fir the children is living in the home unit where they have lived all their lives with both parents. I am satisfied that the husband has taken less of the burden of caring for the children, and the wife has taken more, tan the husband contends. It would not be beneficial to the children to make any major change at this stage, especially when the Federal Magistrates Court could offer a full hearing on property and final residence within a reasonable time.
Should either party be forced to vacate the matrimonial home at this time? There is clearly tension between them, but there is no evidence that it is affecting the children. If the matter can be heard on a final basis within a reasonably short time, the tension may well be manageable. The inevitable result of the forthcoming proceedings will be that there will be major changes to the children’s parenting arrangements, and possibly living arrangements, and a change at this time would be harmful. I do not propose to make any order for exclusive occupation on an interim basis.
The husband must clearly understand, however, that he must start preparing himself for the changes in his life which must follow, and not to continue to refuse to face reality.
Orders
(1)The wife’s application is dismissed.
(2)The wife is to have contact with the children of the marriage each alternate weekend from 5.00 pm on Friday to 6.00 pm on Sunday, commencing on Friday 1 September, until further order.
(3)During the weekend that the wife has contact with the children, the wife shall have exclusive occupation of the matrimonial home and the husband shall remain away from the property from 5.00 pm on Friday to 6.00 pm on Sunday.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
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