SLOANE & HIBBERT

[2016] FamCA 564

FAMILY COURT OF AUSTRALIA

SLOANE & HIBBERT [2016] FamCA 564

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the only issue for determination is in relation to changeover arrangements – Where changeover has already been occurring at the maternal aunt’s home for six months – Where the respondent proposes that changeover occur at McDonalds – Where the Court finds it is in the best interests of the child for the changeover arrangements to remain unchanged.

FAMILY LAW – CHILDREN – PROPERTY – INTERIM PROCEEDINGS – Where the applicant seeks exclusive occupation of a recently built property owned by the parties – Where the applicant says she is unable to remain in her current accommodation with the child – Where no submissions were made in response to that evidence on behalf of the respondent – Where the respondent’s evidence failed to establish that the child’s safety was compromised if the child resided in the property with applicant – Orders made for the applicant to have exclusive occupation of the property.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sloane

RESPONDENT: Mr Hibbert

FILE NUMBER: SYC 3128 of 2016

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 22 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Keith Bagley Lawyer

SOLICITOR FOR THE RESPONDENT: Ms Prats of Martin Street Lawyers

Orders pending further order:

1. The child B born on … 2014 (“B”) live with the mother.

2. The child B will spend time with the father as agreed between the parties and failing agreement from 9.00 am until 6.00 pm each Sunday.

3. For the purposes of implementation of Order 2, the father will collect the child from and return him to the maternal aunt, Ms C at her home D Street, Suburb E, New South Wales.

4. Without admissions, neither party will denigrate, intimidate nor insult the other or any member of the other party’s family.

5. (i)       The mother will have exclusive occupation of the property

   
   

   F Street, Suburb G in the State of New South Wales (“the Suburb G property”); and

   (ii)The father is restrained from doing any act such as to disturb the mother’s exclusive occupation of the Suburb G property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sloane & Hibbert 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 SYDNEY

FILE NUMBER: SYC 3128  of 2016

Ms Sloane

Applicant

And

Mr Hibbert

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant, Ms Sloane, and the respondent, Mr Hibbert, are the parents of B who was born in 2014 and is currently two years of age.  By an Initiating Application filed on 20 May 2016 the applicant sought various interim orders, including the following:

   3.That until further Order and pursuant to section 114(1)(f) of the Family Law Act 1975 (Cth):

   i.the Applicant be granted exclusive occupation of the property being [F Street, Suburb G] being Folio Identifier … (“[the Suburb G] property”);  and

   ii.the Respondent be restrained by injunction from disturbing the exclusive occupation of the Applicant of the [Suburb G] property.

2. On 22 June 2016 the parties agreed to interim parenting arrangements, with the only outstanding issue being the changeover point.  The applicant proposed a continuation of the current regime, in which changeovers occur at the home of her sister and brother-in-law.  The respondent proposed that changeovers take place at McDonalds Restaurant in Suburb H.

3. The respondent opposed the applicant’s application for exclusive occupation on the basis that he makes “serious allegations of violence against her” and that “she should have supervised care” of the child the child. Inferentially, the respondent’s proposal would see the Suburb G property unoccupied until its sale.

4. At the interim hearing on 22 June 2016 the parties each submitted a Minute of Proposed Orders.  The applicant’s document read as follows:

   1.That the child, [B] born … 2014 (“[the child]”) live with the mother [Ms Sloane].

   2.That the child, [B], spend time with the father, [Mr Hibbert], as agreed between the mother and father, but failing agreement as follows:

   a.         Every Sunday from 9.00 am to 6.00 pm on the same day

   b.That at the commencement of spending time, the father is to pick up, and at the conclusion of spending time, the father is to drop off the child, the child, from the child’s maternal aunt’s house, [D Street, Suburb E], NSW, being [Ms C].

   3.That on a without admissions basis, the mother and father must not denigrate, intimidate, nor insult, nor allow any other person to denigrate, intimidate, nor insult, each other or a member of the mother’s family.

5. The respondent’s Minute of Proposed Orders read as follows:

   1.That the child, [B], born in 2014 (“[the child]”) live with the mother [Ms Sloane].

   2.That the child, [B], spend time with the father, [Mr Hibbert] as agreed between the mother and father, but failing agreement as follows:

   a.Every Sunday from 9.00 am to 6.00 pm on the same day

   b.That at the commencement of spending time, the father is to pick up, at [Suburb I] McDonald’s and at the conclusion of spending time, the father is to drop off the child, [B], at [Suburb I] McDonald’s, …NSW.

   3.That on a without admissions basis, the mother and father must not denigrate, intimidate, nor insult, nor allow any other person to denigrate, intimidate, nor insult, each other or a member of the mother’s family.

Background

1. The applicant and the respondent, who are aged 34 and 37, began to live together on 4 April 2014 at the home of the applicant’s parents.  They separated on 14 December 2014, after having cohabited for eight months.

2. After the separation the applicant and the child continued to live with her parents in their home at Suburb H.  The applicant deposed that her parents’ home is no longer available to herself and the child due to her father’s ill-health.

3. The parties purchased the Suburb G property as vacant land as

   
   

   tenants-in-common in equal shares in July 2014.  The purchase price of the land was $200,000.  The parties also entered into a building contract for construction of a townhouse at a price of $295,000.

4. The purchase money for the land and contract price for the building work came from the following sources:

($)
·          Applicant’s savings and inheritance	53,000
·          Respondent’s savings	12,000
·          First Home Owners Grant	15,000
·          Mortgage advance from RAMS	100,404
·          Loan from the applicant’s parents	22,148

1. The RAMS mortgage has a principal sum of $395,000 but the parties have drawn down only part of that amount.  Currently they are making interest-only payments in respect of the mortgage.

2. The applicant now seeks to take up occupation of the Suburb G property with the child the child.  The respondent opposed that course but made no alternative proposal other than an inferential suggestion that the home remain empty.

3. On 16 December 2015 the parties entered into a parenting agreement, after they attended a Family Relationship Centre.  This agreement contained provision for changeovers in the presence of the applicant’s sister.  That arrangement has now been in place for some six months.

Consideration

1. Each of the parties levelled allegations of family violence against the other.  It is impossible to make any findings in relation to these allegations in the context of an interim hearing, when there can be no testing of this evidence.

2. I am satisfied that it would be inappropriate for the presumption of equal shared parental responsibility to be applied in the circumstances of these proceedings, primarily because of the unresolvable competing allegations of family violence.  In any event, the only outstanding issue in regard to the parties’ child is changeover arrangements.

3. I consider that it would be in the best interests of the child B that there be a continuation of the present changeover arrangements.  The applicant maintained that the respondent subjects her to verbal abuse and, accordingly, she is assisted in effecting changeovers by the presence of her sister and brother-in-law.  I see no advantage to the child the child in a change to the venue of a McDonalds Restaurant.

4. The respondent contended that the applicant should not have exclusive occupation of the Suburb G property, in effect, because the child the child would be unsafe in her unsupervised care.  The respondent relied heavily on the allegations contained in his Notice of Child Abuse, Family Violence or Risk of Family Violence.

5. The respondent’s contentions that the applicant has engaged in family violence involve her alleged conduct toward him and a suggestion of a suicide attempt.  For her part, the applicant alleged that the respondent frequently became very angry, shouted and swore at her and pushed her.  She also contended that he subjects her to excessive and unwelcome communication by way of emails and other messages.  According to the applicant, she has repeatedly asked the respondent to desist but he persists with this conduct.  She made a report to NSW Police of this alleged conduct on the part of the respondent.

6. No submission was put on behalf of the respondent in response to the applicant’s evidence that her parents have requested that she and the child move out of their home to the Suburb G property.  The applicant deposed as follows:

   176.I also say that it is not suitable for me to remain where I am living.  I currently live with my parents, James and Sandra Sloane at their property at [J Street, Suburb H].  My father is suffering a chronic illness, being renal failure.  My father also recently underwent open-heart surgery and my parents have informed me that regretfully, they expect me and [the child] to move out to the new home once the townhouse has been completed so that my mother can care for my father in his condition and adapt their house to my father’s in-home dialysis treatments which he will require three days per week for the foreseeable future commencing 31 May 2016.

   The applicant annexed to her affidavit a copy of a medical certificate dated 29 April 2016 which indicated that her father undergoes dialysis three times

   
   

   per week for five hours on each occasion.

7. The applicant also deposed that the Suburb G property is close to her workplace, the child’s child care centre, the home of the maternal grandparents and her sister and brother-in-law, who have facilitated contact changeovers.

8. The applicant deposed that she and the child have spent time in the development which contains the Suburb G property and come to know adults and children within that community.  The development includes a community centre, vegetable gardens, bushland and animals.

9. The applicant deposed that she understands that a condition of the parties having received the First Home Owners Grant is that an owner must occupy the property as a residence for at least six months from completion of the dwelling.  She deposed that she swore a statutory declaration to that effect for the

   
   

   Office of State Revenue.

10. I have no reason to doubt the applicant’s evidence that there are now difficulties with ongoing accommodation for herself and the child at the home of her parents.  The submissions on behalf of the respondent failed completely to address that matter.

11. In my view, the evidence adduced by the respondent fell short of establishing that the child’s safety would be compromised, if he and the mother were to take up occupation of the Suburb G property.  It seems to me that this proposal is a suitable means of accommodating the child of the parties.

12. For these reasons, I will make orders in the terms proposed by the applicant.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2016.

Associate: 

Date:  7 July 2016