Sabado & Sabado - [2019] FamCA 425

FAMILY COURT OF AUSTRALIA

SABADO & SABADO AND ANOR

[2019] FamCA 425

FAMILY LAW – CHILDREN – INTERIM PARENTING – Where consideration of applicable principles – Where father perpetrated family violence – Where father has anger management issues – Where mother to have sole parental responsibility – Where children to live with the mother and spend day time only with the father – Where parents to attend parenting course

FAMILY LAW – INJUNCTIONS – SOLE USE AND OCCUPATION OF HOME – Where mother and children excluded from home by father’s conduct – Where consideration of applicable principles – Where mother to have sole use and occupation of the home

FAMILY LAW – SPOUSE MAINTENANCE – Where application by father for certain payments by way of spouse maintenance – Where father not establish inability to support himself in the circumstances – Where application dismissed

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 69ZL, 72, 75(2), 114

Bassett v Bassett (1975) 1 All ER 513
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Deiter & Deiter [2011] FamCAFC 82
Fedele & Fedele [1986] FamCA 14
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR v GR [2010] HCA 4
Page v Page [1980] FamCA 79
Plowman & Plowman (1970) 16 FLR 447
S & S [2002] FamCA 59

APPLICANT:

Ms Sabado

FIRST RESPONDENT:

Mr Sabado

SECOND RESPONDENT:

Ms Victor

INDEPENDENT CHILDREN’S LAWYER:

Sydney West Family Lawyers

FILE NUMBER:

PAC

5549

2018

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mahony

SOLICITOR FOR THE APPLICANT:

Forshaw Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Givney

SOLICITOR FOR THE FIRST RESPONDENT:

Maclarens Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Phillip A Wilkins & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sydney West Family Lawyers

Orders, Pending Further Order

That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2010.
That the said children live with the mother.
That the children spend time with the father as agreed between the parties in writing to include SMS or email communication and in default of agreement:
(a)Commencing on the first Wednesday after the date of these orders each Wednesday from after school to 7.00 pm;
(b)Commencing on the first Saturday after the date of these orders each alternate Saturday from 9.00 am to 5.00 pm (6.00 pm daylight saving time);
(c)Commencing on the second Sunday after the date of these orders each alternate Sunday from 9.00 am to 5.00 pm (6.00 pm daylight saving time).
That changeovers for the children’s time with the father where not at school be at the McDonald’s Family Restaurant Suburb C.
interviews) where the attendance of either or both parents are reasonably to be expected and to attend at the children’s extracurricular activities including sport, religious education and or attendances and other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
That the mother do all things necessary and sign all necessary documents to permit the father to obtain from the children’s school such information and documents as he may reasonably request as to the children’ progress including school reports and the children’s school related activities.
The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or either of them and from permitting any other person to do so and the parties are further restrained from showing the children any document related to these proceedings and from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
That the father and mother each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer provided always that such request shall not occur more frequently than once per calendar month with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this Order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile telephone number, email address if available and facsimile number if available.
Pursuant to s 70NEB(1)(a) of the Family Law Act 1975 (Cth) the father and mother within three months from this date must attend and complete a course in parenting after separation approved or nominated by the Manager of the Child Dispute Service of the Court’s Parramatta Registry and must:
(a)Contact the Manager within seven days and obtain the approval or nomination;
(b)Pay the reasonable fees for the course;
(c)Upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
(d)Promptly provide the other party and the Independent Children’s Lawyer with a copy of that letter.

Further Orders

That the father shall vacate the former matrimonial home at D Street, Suburb E, within seven days from this date by no later than 5.00 pm on the last day and that thereafter the mother shall have sole use and occupation of that property pending further order provided always that the mother pay as they fall due and payable property outgoings including council rates, water rates, strata levies and insurances.
That the father is restrained when vacating the former matrimonial home from removing any items of furniture, furnishings and personalty therein save for his clothing and personal effects without the written consent in writing of the mother with such writing to include SMS or email communication.
Upon noting that the children are enrolled in the Anchor Program (Uniting Care) and await induction into that program the parties shall do all things necessary to ensure that the children attend, participate and complete that program and obey all reasonable directions of the program counsellors.

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 Sabado & Sabado & Anor 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 PARRAMATTA

FILE NUMBER: PAC 5549 of 2018

Ms Sabado

Applicant

And

Mr Sabado

First Respondent

And

Ms Victor

Second Respondent

REASONS FOR JUDGMENT

In the context of ongoing property and parenting proceedings between the applicant wife/mother and respondent husband/father certain interlocutory issues have arisen for determination.
Proceedings were commenced by the applicant mother in the Federal Circuit Court of Australia on 20 November 2018. Her Initiating Application sought parenting orders in relation to the children of the parties’ marriage X born … 2007, now nearly 12 years of age and Y born … 2010 now nearly nine years of age.
The father filed a Response to the mother’s Initiating Application on 7 December 2018 seeking orders in that Response both as to parenting and property.
To join issue on the question of property the mother filed an Amended Initiating Application on 17 May 2019. That Amended Initiating Application sought interim orders that are the subject of the present determination.
On 11 December 2018 orders were made in the Federal Circuit Court of Australia that, in summary, relevantly provided:
(1)for the appointment of an Independent Children’s Lawyer (“ICL”) to represent the children;
(2)for the parties to attend upon a family consultant for the purposes of a child inclusive conference on 11 February 2019;
(3)that by consent and pending further order the father pay in a timely fashion all outgoings in relation to the former matrimonial home situate at D Street, Suburb E;
(4)that by consent and pending further order:
i)the children live with the mother;
ii)the children spend time with the father as agreed between the parties and failing agreement each Wednesday from 3.00 pm to 7.00 pm, each alternate Saturday from 10.00 am to 3.00 pm, each even Sunday from 10.00 am to 3.00 pm and on Christmas Day from 2.00 pm to 7.00 pm;
iii)that changeovers be effected at McDonald’s, Suburb C;
iv)that the parties are to communicate by SMS in relation to the children only;
v)that the mother is to provide the father’s solicitor within 48 hours a list of all personal items and the father is to return these items within a further 72 hours. The mother is to collect these items.
(5)That the father is injuncted from damaging or destroying the property at D Street, Suburb E and disposing of the personal property of the mother.
On 18 December 2018 further orders were made that provided for the mother and father to undertake hair follicle testing within 24 hours. Both tests were negative.
On 7 January 2019 the interim issues between the parties were then listed for hearing in the Federal Circuit Court of Australia on 24 May 2019.
On 24 May 2019 the proceedings were transferred to this Court as being “complex and lengthy parenting and property proceedings”.
This Court facilitated the matter being listed for directions before a registrar on 29 May 2019 and the interim applications for determination were listed for interim hearing on 18 June 2018.

Context

The applicant mother is presently aged 45 and the respondent father aged 42.
The parties commenced cohabitation in 2002 and subsequently married on … 2005. They separated on a final basis in early August 2018.
The two children referred to above are the children of the parties’ relationship.

The present Application

The mother relied on her Amended Initiating Application filed 17 May 2019. In that application the mother relevantly sought interim orders, in summary, as follows:
a)that the mother have sole parental responsibility for the children;
b)that the children live with the mother;
c)that the children spend time with the father as provided for in the current interim orders;
d)that changeovers be effected at McDonald's Suburb C;
e)that the parties are to communicate by way of SMS in relation to the children only;
f)that within seven days the father vacate the former matrimonial home at D Street, Suburb E being the whole of the land comprised in Folio identifier … and that thereafter the mother have sole use and occupation of that property to the exclusion of the father and the mother pay as they fall due and payable outgoings relating to the said property; and
g)that pursuant to s 68B of the Act the father be restrained from attending at, entering upon, approaching or remaining on the residence of the mother and children such order being an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
The mother relied upon the following documents:
a)her Amended Financial Statement filed 14 June 2019;
b)her affidavit filed 20 November 2018;
c)her updating affidavit filed 17 May 2019;
d)the affidavit of the maternal grandmother Ms A Victor filed 17 May 2019; and
e)the affidavit of Ms F, paralegal, filed 17 May 2019.
The father sought interim orders relevantly as follows:
a)that the parties have equal shared parental responsibility for the children;
b)that the children live substantially in a week about arrangement with each parent;
c)that the father be entitled to occupy to the exclusion of the mother the former matrimonial home at D Street, Suburb E; and
d)that by way of spouse maintenance for the father the mother pay as they fall due and payable outgoings including water rates council rates and Strata levies associated with the D Street, Suburb E property.
The father relied upon the following documents:
a)his Amended Financial Statement filed 13 June 2019;
b)his Amended Response filed 26 June 2019;
c)his affidavit filed 7 December 2018;
d)his updating affidavit filed 17 May 2019; and
e)his updating affidavit filed 17 June 2019.

The mother’s evidence

In about 1999 prior to the parties’ cohabitation the mother purchased with her sister Ms Victor for $155,000.00 an investment home unit property at D Street, Suburb E that later became the property occupied by the father and mother. The purchase price was funded by way of a mortgage advance and funds provided by the maternal grandmother.
The property was tenanted until 2007. The mother, her sister and the maternal grandmother met any shortfall in outgoings without contribution from the father. The mortgage over the property was discharged in about 2004.
In about 2007 the father and mother moved from their rental property to live in the D Street, Suburb E property.
The mother asserts that during cohabitation the father withdrew funds from the joint accounts and gambled those monies to the extent that there were at times insufficient monies to meet the parties’ outgoings. The mother, otherwise, complains that the father withdrew joint funds and remitted them to members of his family in New Zealand.
The mother, otherwise, asserts that during cohabitation the father was abusive and intimidating towards her with such conduct occurring in the presence of the children. She further complains that the father during cohabitation drank alcohol every day to excess and smoked marijuana.
Until the parties’ separation, the mother asserts that she was the primary carer for the children.
Both children attend the local Catholic school at Suburb E which is approximate to the matrimonial home unit the subject of this application. The mother says that she was significantly involved in the children’s school activities and other extracurricular activities including outings. When not working the father would pick up the children from school on the afternoon until the mother arrived home from work although on occasions it was necessary for the mother to rely upon neighbours, family or her brother-in-law to collect the children.
The mother complains that over the period of cohabitation the father had mostly casual employment in various jobs. In the last three years she says that the father has hardly worked at all, only working casual shifts when he needed money.
The mother complains of the father’s parenting style asserting that he was threatening and aggressive towards the children in his discipline.
An incident between the parties on 26 July 2017 is contained in a police domestic violence entry: Exh “M”.
On 22 September 2018 shortly after his return from Country L to visit family the father assaulted the mother. She told him to move out of the home unit and that she would assist him with the bond and getting the electricity connected. The father responded that he was not going anywhere until he got 50 per cent of everything and his son. With that the father took the mother’s laptop and threw it to the ground screaming at her “keep going, call me an idiot again and see what happens”. With that the father pushed the mother hard with his hands and she fell back on the couch. The mother left the premises and attended upon the police. The father was arrested (see Exh “M”). On 23 November 2018 at Suburb G Court the offence was found proved but without proceeding to a conviction the father was conditionally released upon entering into a recognisance to be of good behaviour for a period of 12 months from 23 November 2018.
On 23 September 2018 a provisional Apprehended Domestic Violence Order (“ADVO”) was issued. The father was also charged with a domestic violence offence of malicious damage: destroy or damage property: Exh “M”.
On 23 November 2018 a final ADVO was made against the father for the protection of the mother. The order restrained the father from assaulting or threatening the mother, stalking harassing or intimidating the mother and intentionally or recklessly destroying or damaging any property that belongs to or is in the possession of the mother. The order is for a two-year period and will expire on 22 November 2020.
The mother says that she is afraid of the father who she finds intimidating with his anger issues. She says the father loses control and smashes things in the house historically including a computer desktop, a portrait, a mobile phone, a fridge and a table that he threw off the home unit balcony. The children have been exposed to the father’s anger and behaviour and she asserts that previously the father has installed a tracking device on her phone and monitored her emails.
On separation the mother and children were accommodated at a friend’s home at Suburb K for a week or so but following a report that the father was parked outside of that friend’s home the mother moved herself and the children to the maternal grandparent’s home. The incident was the subject of a police report. The mother expresses concerns that the father is aware of her whereabouts.
The maternal grandmother’s home is a small two bedroom cottage in Suburb B. It is an old cottage and the mother and children are occupying a single bedroom sleeping together on a blow-up mattress on the floor. The mother is concerned as her son suffers from asthma and the current circumstances have exacerbated that condition.
The mother has requested the father vacate the property at D Street, Suburb E to facilitate the children and herself returning to live there. To the mother’s observation the children miss their home and surroundings, it being approximate to their school. The children enquire of the mother as to when they will be able to return to their home.
The father, asserts the mother, was working casually as a labourer in late 2018 earning between $200.00 and $800.00 per week. His PAYE salary for the year ended 30 June 2015 reveals an after tax income of about $33,000.00 or about $660.00 per week.
The mother asserts that the father could have accommodation available to him through his cousin who rents out boarding rooms in Suburb E. Otherwise, there is evidence that rental properties by way of granny flat or small apartments are available for rental in the Suburb E area at a rental ranging from $170.00 per week to $360.00 per week.
The mother is presently in full-time employment earning about $2,000.00 per fortnight after tax. She receives no financial support for the children from the father. Since separation she has continued to pay outgoings on the D Street, Suburb E property including insurances, electricity, water rates, Strata levies, council rates, Foxtel, Netflix, home phone and Internet bills. She says that the father has not contributed such outgoings for several years. Otherwise, the mother meets the children’s school fees of $1,295.00 per term and meets the children’s schooling expenses.
The mother expresses concern that since separation the father has engaged the children in the issues before the Court. The children have said things to her such as “are you lying or are you telling the truth”. The children also enquire of the mother as to the course of the subject proceedings and have accused the mother of stealing all of dad’s money. The mother says that the father’s ongoing denigration of her is impacting adversely on her relationship with the children.

The father, the mother complains, changes arrangements for his time with the children to suit himself and fails to comply with current interim orders and fails to spend time with the children as provided for in the orders when such time coincides with the children’s extracurricular activities.
On 1 February 2019 the father unilaterally sought to collect the children from school. As a consequence of his attendance the children were placed in a safe room. The mother arranged for her sister to attend to collect the children. The father was aggressive towards the sister until the school principal intervened: (Exh “M”).
The mother has observed that the children’s interpersonal relationship has deteriorated with them fighting more frequently and being aggressive towards each other. Concerningly, following release of the Child Inclusive Conference Memorandum dated 12 February 2019, the child X reported to the mother that “I got in trouble from dad on Wednesday night. He took me to the shops on my own and asked me why I had said I don’t want to live with him. He told me that I wouldn’t see him again if that’s how I felt”. To the mother’s observation the child was very upset by what she had been told by the father.
At the commencement of cohabitation the father had little in the way of assets. The mother had the investment home unit she had purchased with her sister as referred to above.
In 2004 the mother and her sister jointly purchased property at J Street, Suburb K for $383,000.00. The purchase price comprised a small deposit of $1,000.00 and a mortgage from M Bank. The property was tenanted approximately 12 months after the time of purchase. Ongoing outgoings shortfall were funded by the mother, her sister and the maternal grandmother. The father made no financial contributions to this property. The mortgage encumbrance on this J Street, Suburb K property was discharged in 2015. Subsequent to discharge of mortgage the property was occupied by the mother’s sister Ms Victor. The mother asserts that the agreement between herself and her sister was that the mother would retain the D Street, Suburb E property and the sister would retain the J Street, Suburb K property. In February 2018 the mother completed a transfer of her interest in the J Street, Suburb K property to her sister.
The maternal grandmother Ms A Victor says that she had significant involvement with the children during the parties’ cohabitation so as to assist the mother in the care as required. She has observed incidents of the father being intoxicated, his anger and aggression.
The maternal grandmother assists the mother with after-school collection on four days a week but as a consequence of the mother and children being out of their home it requires the maternal grandmother and the children to catch two buses with a travel time of about one and a half hours from the children’s school at Suburb E to the maternal grandmother’s home at J Street, Suburb K. When living in their home it was but a five minute walk from the school to their home for the children.

The father’s evidence

The father asserts a more engaged role in the day-to-day care of the children during cohabitation but concedes that during the relationship he was employed in “numerous and casual jobs”.
He concedes that the mother was the primary breadwinner for the family.
He asserts direct financial contribution to both the matrimonial home unit at D Street, Suburb E and the mother’s sister’s property at J Street, Suburb K although does not adduce one shred of evidence to support such a contention. He asserts that his income such as it was contributed to outgoings in relation to the properties and to household and living expenses. The true extent and nature of such contributions will need to await final determination at trial.
The father asserts he is in receipt of sickness benefits from Centrelink. He ceased employment on 1 August 2018 complaining of lower back pain that inhibited his ongoing employment as a labourer. He awaits prospective surgery on his back probably sometime in 2020. His general practitioner provided a short report dated 10 May 2019 that identifies that the father has been a patient of the practice and “has chronic back pain caused by a herniated disc with nerve involvement. The pain is severe and he is unable to predict when he gets flare-ups of back pain, preventing him from work. This episode is expected to take several months to resolve, however, this may change depending on his response to treatment.”
Regrettably, the medical evidence on behalf of the father so essential to his case is superficial. There is no history given of the father’s engagement with the medical practitioner or, indeed, any specialist medical practitioner, no evidence as to when the father consulted the general practitioner, observations and findings in consultation, results of investigating x-rays or scans nor anything other than a scanned prognosis. A short certificate from the father’s physiotherapist is dated 11 December 2018 (Exh “H”). There is no evidence of any remedial intervention undertaken by the father for the last six months.
His present Centrelink benefit is $325.00 per week. His Centrelink benefit is subject to deduction for notional child support payments and curiously “less a payment plan for court fines”. He says that his net fortnightly pension is $517.00 from which he meets personal loan payments of $107.00, phone bill of $35.00 at his own household and living expenses. He says he is not in a position to make any contribution to property outgoings that are being paid by the mother.
The father makes allegations as to the mother’s occasional use of marijuana and abuse of alcohol, expressing concern about the impact of such on the mother’s ability to care for the children.
He complains that until interim orders were in place there were difficulties between himself and the mother in terms of his time with children.
He denies that he gambled excessively although acknowledging that he did expend matrimonial funds and remit them to New Zealand and Country L. He denies abuse of alcohol or marijuana.
The father complains that the present interim orders provide him with insufficient time to allow him to spend time with his extended family. He has three first cousins living in the Suburb H area with a total of 10 children. He has other first cousins living in Suburb N and Suburb O.
He asserts that the children have expressed to him their wishes to be able to spend overnight time with him. He reports that his son reported to him a mix-up with buses in the context of the maternal grandmother assisting with the children after school in circumstances where he precludes the children and the mother from living in their home. Indeed, he has requested through his solicitor a return to him of mailbox keys and keys to the property that remain in possession of the mother.
Like the mother he accuses her of engaging the children in the issues before the Court inappropriately.
He acknowledges that the child Y suffers from asthma.
He complains that the mother works long hours and thus her availability personally to the children is compromised, has no drivers licence and relies on public transport but acknowledges that she is assisted by her sister and the maternal grandmother as required.
He has been able to attend the children sporting events more recently.
Concerning the father in a short supplementary affidavit filed 17 June 2019 gives evidence that on 6 June 2019 he was involved in a traffic incident where another driver sounded his horn. The father exited his car and approached the driver’s side window of the other car. The father asserts that the other driver spat towards him and he then struck the other driver through the open window. The father returned to his car which was then approached by the other driver who had exited his car. The father left the scene and was stopped by police a short time later. He was arrested and charged with common assault. He was given a Court attendance notice to attend Suburb G Court on 23 July 2019.
The father gives evidence that he intends to plead guilty to the charge of common assault. His conduct in relation to this incident prospectively puts him in breach of his good behaviour bond dated 23 November 2018.
The father has obtained a referral from his general practitioner for mental health intervention. He has an appointment with a registered psychologist on 8 July 2019 to address issues of anger management. It is to be expected that any report provided by the psychologist will be provided to the other parties.
Regrettably, the father’s conduct in relation to this more recent incident is significantly supportive of the mother’s concerns as to the father’s lack of emotional control and anger management.

The Family Consultant

In February 2019 a Child Inclusive Conference memorandum was prepared for the purposes of these proceedings then in the Federal Circuit Court of Australia.
Both children were interviewed by the family consultant. At the time of interviews the children had had a limited relationship with the father since separation and interim orders as to regularising their time with the father had been made on 11 December 2018 with such time being on a circumscribed basis.
The mother repeated her assertions in relation to the father’s conduct to the family consultant. In response the father explained that he was frustrated that his mother would not discuss their marital difficulties. He acknowledged restraining her from leaving the home, taking a picture off the wall and smashing it. He reported on one occasion telling the mother not to come home because he was angry with her and “didn’t want to do something stupid”. The father acknowledged that there would be arguments and that it would lead to yelling and name-calling. The mother reported that the father would pursue arguments relentlessly and that she would try to de-escalate arguments by removing herself from the room or the house.
The mother asserted that the father smoked cannabis regularly during their relationship and that she had concerns that he was using other illicit substances after finding a glass pipe in his drawer. She reported that the father had lost weight and appeared to be having mood swings. The father acknowledged to the family consultant that he smoked cannabis on occasions, the last occasion being one or two months before the interviews.
The mother complained of feeling intimidated by the father and avoided coming into contact with him.
The father reported having had counselling for four or five sessions following separation. He reported that he had sustained an injury and had been unable to work and said that this further contributed to him seeking psychological assistance.
The family consultant reported that the parties had a poor co-parenting relationship with different parenting styles. The parents were communicating by text message.
The mother reported that the child X was sensitive and experienced increasing symptoms of anxiety since separation. The mother identified that the child felt confused about her family situation.
Both parents reported to the family consultant their concerns that the other was providing the children with inappropriate information about the Court proceedings. The mother complained that the children had attended an appointment with the father with his solicitors.
The children were interviewed by the family consultant.
The child X (then 11 years and five months) presented as a friendly cooperative and sociable child. She identified that she was living with the mother, her brother and the maternal grandmother. She expressed a wish to be able to return back to her own room at home. The child reported that it was positive that her parents do not argue and fight any more. She reported being scared when her parents had “fights”. The child expressed a wish to live with the mother and spend regular time with her father. She reported a preference that the father be a part of her sporting events in the future.
The child Y (then eight years and seven months) presented as a friendly child and engaged in conversation with the family consultant about schooling, his interests and family. He also stated a preference to live with the mother but identified that he enjoyed spending time with the father. The child expressed sadness at his parents’ separation and that “we don’t live in our house anymore”. He reported that prior to their separation his parents had lots of arguments.
In discussing future directions the family consultant reported that the father discussed strategies in managing his emotions during times of conflict. The family consultant observed that the father demonstrated a limited understanding of the impact of his behaviour on the mother and the children. It was recommended that the father may benefit from completing a men’s behaviour change program.
The children presented to the family consultant as confused about their family situation and it was suggested by the consultant that they may benefit from engaging in support of the Anchor program run by Uniting Care.
In the context of the father’s inability to comply with Court orders, the family consultant expressed some concern. The children, she opined, would benefit from certainty and consistency in their parenting arrangements as a means of alleviating their apparent confusion and reducing the possibility of increasing their anxiety. The parents may be assisted, suggested the family consultant by engaging the support of the Keeping Contact Program through Uniting Care or engaging the support of a suitably qualified family therapist to assist them in working towards a more cooperative parenting relationship.

The Independent Children’s Lawyer (ICL)

The ICL acknowledged that it was difficult to form a concrete position where the future living arrangements for the parents were unknown by reason of the outstanding issue as to sole use and occupation of the D Street, Suburb E property.
However, the ICL contended that a shared care arrangement would not be in the best interests of these children with each parent deposing as to ongoing conflict and inability to communicate. The ICL supported the children living with the mother.
Otherwise, the assessment of risk and the issue of overnight time with the father was a matter for the Court but that the Court would have regard to the children’s wishes in terms of their time with their father.
The ICL supported the engagement of the children in the Anchor Program and reported that the children were enrolled but that the program had not as yet commenced for them.

Interim Parenting

Short Reasons for judgment

In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.
In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122.Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

The Law

The relevant principles in relation to parenting and interim proceedings are well settled: Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

In this matter there is unequivocal evidence of family violence as a consequence of the father’s ADVO and Recognisance of November 2018. Otherwise, there are significant assertions by the mother as to the father’s aberrant conduct within the household and in the presence of the children and the father’s concessions to the family consultant.
The presumption shall not apply.
If the presumption in s 61DA were to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. Such is not the case here.

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no doubt that these children have established relationships with each parent. The children’s relationships with both parents is regrettably overshadowed by the conflict within the household, the allegations both parents make one against the other and issues of the father’s aberrant conduct both before and after separation. Both parents make assertions as to the other inappropriately engaging the children in the present litigation and the issues arising therein.
The children clearly express a wish to live with the mother as their primary carer. The circumstances more fully outlined above clearly indicate that such an arrangement is in the best interests of the children particularly in light of the overshadowing circumstances of the father’s emotional instability and lack of anger management. However, the children, in the context of the family consultant interviews and at a time when interim orders for time had been in place for but a few weeks, expressed a clear preference to spend time with their father on a meaningful basis. He has clearly been engaged in their lives and more recently appears to have reengaged in their sporting and extracurricular activities. Providing he is able to moderate his behaviour in relation to the mother in circumstances where they may both be present at children’s activities, there is no reason to limit his ability to so engage in addition to prescribed times that the children may spend with him. An arrangement where into the future the children live with the mother and have a defined relationship with the father who has the ability to engage in extracurricular activities is indicated as meaningful relationships with both parents pending final hearing.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). There are concerns arising from a clear history of family violence and conflict with the evidence such as it is being clearly indicative of such occurrences being primarily occasioned by the conduct of the father. The children have been exposed to such conduct. The father acknowledges the need for mental health intervention to address this aspect of his personality and indeed more recently facing a criminal charge of some significance arising from his traffic incident has sought appropriate psychological intervention. However, the overshadowing circumstances of his personality issues and psychological frailties when under pressure or in conflict is indicative of, at this stage, his time with the children being on a day only basis absent the consent of the children’s mother.

The Additional Considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The children have expressed a clear wish to the family consultant to live with their mother. Presumably to them she has presented as the primary carer and at the age they both are now they have been able, it appears, to gauge the nature of the relationship they both want with their father in the light of occurrences to which they are exposed during the parties’ cohabitation and thereafter.
b)The nature of the children’s relationships with both parents is referred to above in the context of this interim hearing. They will be explored to a much greater extent at the completion of the final hearing. The father, in the context of this interim hearing, presents a complex circumstance in relation to his lack of emotional regularity and anger management. Objectively there has been clear evidence of his incapacity in this regard which must overshadow any assessment of his parenting capacity on a more fulsome basis than at present with the children. Otherwise, the mother presents as the children’s preferred primary carer which gives rise to the suggestion that they have developed a strong and sound primary attachment with their mother.
c)The mother seeks orders that continue the present somewhat circumscribed time spent by the children with the father. There is nothing in the evidence to suggest that more fulsome daytime contact with their father is contra indicated. The father for his part seeks in effect shared care arrangement. The presentation of his case on an interim basis seeking such orders demonstrates a significant lack of insight by the father and perhaps his legal representatives as to the significance as to aspects of his conduct identified above. It is readily apparent that he requires psychological intervention to remedy clearly demonstrated shortcomings in his emotional regulation and anger management before there could be any consideration of a significant increase in his time with the children.
d)The mother has demonstrated an appropriate capacity to provide for the children in her care. Her ability to do so by the physical circumstances of her present accommodation in that she and the children are excluded from the home they have lived in for the whole of their lives. The mother reports that this is having some adverse impact on the children in terms of anxiety and the children’s interpersonal relationship with each other. The father’s capacity to provide for the children if in his care is limited by the overshadowing circumstances of his mental health as identified above. Until such time as there has been appropriate professional engagement by him and professional recognition of improvement in his ability to emotionally regulate extensive time with the children must wait. Yet he has demonstrated an engagement with the children during cohabitation and a clear wish to be engaged in the children’s activities both at school and extracurricular. Such an engagement should be facilitated and encouraged to assist him in addressing, otherwise, his underlying psychological issues.
e)Both parents present as conflictual and with poor communication skills. There is some evidence that both seek to adopt a set of behaviours in relation to the other parent that seek to align the children with each of them. As such, they present with a poor attitude to the children and their responsibilities of parenthood. Such will be explored further at final hearing.
f)Otherwise, by reason of the allegations by the parents one against the other, it is appropriate that they be restrained from discussing these proceedings in the presence of the children and that the ICL have the right to request random urinalysis testing.
g)It is inappropriate to consider making orders in the context of this interim hearing that would lead to further proceedings. A final hearing as to parenting awaits the obtaining and release of an appropriate Chapter 15 Expert Report.
For the reasons set above the presumption as to equal shared parental responsibility will not apply. As such it is not necessary to consider concepts of equal time or substantial and significant time but, indeed, to consider what order should be made in the best interests of the children. The relationship between the parties is conflictual against a background of family violence. It is in the best interest of the children that, pending final hearing, the mother hold sole parental responsibility.
For the reasons given above it is appropriate that the father’s time with the children be appropriately defined but that it provide more meaningful engagement with the children on a day time only basis and facilitates his engagement in schooling and other extra-curricular activities. Clearly, the parties should be able to agree as to further or other time with the children presumably such agreement may depend upon the mother being able to speak to the father’s mental health practitioner as to his progress in therapeutic intervention to give her some confidence to perhaps consider at a later date an agreement to the commencement of some overnight time. Orders to facilitate same will be made accordingly.
Clearly, otherwise an order should be made that provides for the children to live primarily with the mother.

Sole Use and Occupation

Section 114 of the Act provides:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Under s 114 of the Act the Court is required to make an order that “it considers proper”.
Section 68B of the Act relevantly provides in the context of parenting proceedings:
Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or

(ii)a specified area that contains a place of a kind referred to in subparagraph (i).

(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

In Plowman & Plowman (1970) 16 FLR 447 Carmichael J considered some of the relevant matters as to use and occupation orders:
“Among factors which would determine how the discretion is to be exercised are:
- can the mother adequately be housed elsewhere;
- is money available either from the mother’s own resources or from the father to provide for the housing;
-for whom the father and mother is it less inconvenienced to move away from the matrimonial home;
-what are the interests of any children to the parties in the matrimonial home;
-what are the relevant proprietary rights of the spouse;
-would a non-molestation order be an appropriate alternative to an order for expulsion;
-is the possible use of improper methods either by way of intimidation or fraudulent condemnation to prevent the mother from pursuing her rights if the spouse continues to reside in one home;
- the possible injustice of forcing the father to establish himself another home or otherwise accept inferior accommodation without just cause.”
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations 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.
In Page v Page [1980] FamCA 79 the Full Court cited with approval the English decision of Cumming-Bruce J in Bassett v Bassett (1975) 1 All ER 513 at p 520 where his Honour said:
"In my view, the approach of the court to these cases of application to expel a spouse from the matrimonial home should be strictly practical, having regard to the realities of family life. Where a mother is looking after a child or children, it is necessary to examine with the utmost care whether it is really practicable for the father and mother to continue to live in the matrimonial home ... 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 mother 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 ... In proceedings pending suit it is unlikely that the court will be able to predict who will be living in the matrimonial home after all the problems of custody, finance and property adjustment have been determined. Where there are children, whom the mother is looking after, a major consideration must be to relieve them of the psychological stresses and strains imposed by the friction between their parents, as the long-term effect on a child is liable to be of the utmost gravity. This 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 went on to say at [25-26]:
"The effect of these passages, therefore, is to correctly state the approach which the Court should take in cases such as the present one, where an intolerable situation has arisen within the matrimonial residence rendering it imperative for the parties to be separated by order of the Court.
The court must decide who should leave, having regard to all the circumstances as set out in Davis' case. In many cases the need to provide a home for the children will be a decisive factor."
The Full Court in the subsequent case of Davis & Davis (1983) FLC 91-319 (at 78170) quoted with approval a passage from Price & Price, an unreported decision of Lindenmayer J delivered 12 July 1982, as follows:
In my opinion, 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, or that there has been some conduct 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 to expect them to remain in the home together.
In Fedele & Fedele [1986] FamCA 14 the Full Court emphasised that the considerations that can be found in cases concerning the exercise of discretion for the making of an exclusive occupation order are neither fixed nor exhaustive, and that ultimately each case must be decided on its own merits.
The relevant criteria for determining an application for sole use and occupation has been described by the Full Court in S & S [2002] FamCA 59 as “surprisingly vague”.
The Court is required to make an order that “...is proper and more importantly, to exercise discretion judicially”.
In S & S (supra) the Full Court said as follows:
36.Finally it is appropriate to refer to the judgment of the Full Court in Sieling v Sieling [1979] FamCA 23; (1979) FLC 90-627; 4 Fam LR 713 where their Honour's discussed the general nature of an injunction under s 114 saying at 78,264:
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.
Thus relief should not depend merely on the balance of convenience or hardship. The authorities, however, demonstrate that the balance of convenience may, however, decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other. It has been said that the applicant for such an order would need to show that it is impossible for the parties to live in the same house in circumstances where there was an inescapable or intolerable situation. The test to be applied is objective and each case must be determined on its particular facts.
It is readily apparent in this matter that the father remains in the home having, in effect, excluded the mother and children by his aberrant conduct. The mother made an application for relief as to occupation of the home promptly but exigencies of delay in another court have caused regrettable delay in her application being heard.
The “home” is in fact a property owned jointly by the mother and her sister in which the father has no proprietary interest save what ultimately may be the result of s 79 proceedings.
The Court is mindful of what was said by the Full Court in Marvel & Marvel (supra) as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
In circumstances where the parties remain in a conflictual relationship and where the mother makes significant complaint as to the father’s conduct as referred to above, it is clearly impractical for both parties to live in the home.
The parenting best interest considerations lead to the conclusion that the children should remain in the primary care of the mother. The father is to have day only time with the children.
The children have lived all their life in the home and the home is proximate to the school that they have attended for some years. The children’s present living circumstances are inappropriate and less that satisfactory. They are required to travel a significant distance by public transport to and from their school. That being a circumstance that the father complains of.

The father’s evidence is indicative of him giving a significant extended family that could afford him accommodation until he resumed employment. His mother was in Court with him but she and other members of his family are silent as to the non-availability or otherwise of accommodation that could be afforded to him. He adduced no independent evidence to the contrary notwithstanding it was clearly raised in the mother’s affidavits to which he responded.
Yet he expects the mother’s extended family to accommodate his children when he has excluded them from their home.
In all the circumstances and in particular considering the best interests of the children, it is appropriate and proper that the mother have exclusive occupation of the home at D Street, Suburb E.

Spouse Maintenance

Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. Section 72 provides that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a)By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)By reason of age or a physical or mental incapacity for appropriate gainful employment; or
c)For any other adequate reason;
having regard to any relevant matter referred to in s 75(2) of the Act.
The father asserts no capacity for employment as a consequence of ill health.
Notwithstanding a long history of employment in various capacities and in a number of jobs over the years in the shadow of some back disability that has been with him since 2012, he now asserts an incapacity for employment.
His own evidence is that such incapacity is indeterminate and subject to rehabilitative considerations. There is no evidence as to when he saw his medical practitioner to obtain the certificate he relies on dated 10 May 2019. There is nothing from his treating physiotherapist save for a memo dated 11 December 2018.
The father adduces no evidence of any attempts to obtain employment that would suit his asserted disability and no evidence of any attempt to obtain part time work. His last paid salary into his Account (…) in late October 2018.
The exacerbation of his disability to the extent of his asserted inability to work for an indefinite period so as to enliven a prospective obligation on the mother who cares for his children must be demonstrated by more fulsome and acceptable evidence than adduced in the context of this interim hearing.
The father does not assert any other reason than that contemplated by s 72(1)(b).
He seeks orders for the mother to pay outgoings on the home unit (Exh “B”) that he will not be in occupation of. His prospective circumstances are not known.
His application for spousal maintenance orders is dismissed.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 July 2019.

Associate:

Date: 4 July 2019