VCM and KRM
[2005] FMCAfam 108
•11 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VCM & KRM | [2005] FMCAfam 108 |
| FAMILY LAW – Parenting – competing interim residence applications – father removed eldest child aged 5 from mother’s care – both parents seeking exclusive occupation order. |
Family Law Act 1975 (Cth)
Bassett v Bassett (1975) 1 All ER 513 at 520
CDJ v VAJ (1998) 157 ALR 686
Cowling’s case (1998) FLC 92-801
Davis v Davis (1983) FLC 91-319
Gorst & Gorst [2004] FMCA Fam 300
Page v Page (1981) FLC 91-025
Price v Price (unreported 12 July 1982)
Scholte (2002) FamCA 59 (unreported)
Sieling v Sieling (1979) FLC 90-627
| Applicant: | VCM |
| Respondent: | KRM |
| File Number: | PAM 597 of 2005 |
| Judgment of: | Sexton FM |
| Hearing date: | 9 March 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 11 March 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Solicitors for the Respondent: | Redmond Hale Simpson |
| Counsel for the Respondent: | Mr P. Livingstone |
UNTIL FURTHER ORDER THE COURT ORDERS:
That the parties have joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage, KAM, born 26 May 1999, now 5 years, EMM, born
14 August 2001, now 3 years and SRM, born 12 February 2004, now 13 months.
That the mother have responsibility for making decisions about the day to day care of the children when they are in her care and the father have responsibility for making decisions about the day to day care of the children when they are in his care.
That the father return KAM to the mother by no later than 5.00p.m today and that the mother have liberty to apply at 24 hours notice in the event the father fails to comply with this order.
That the children reside with the father as follows:
(a)On each alternate weekend from 4.00p.m Friday until 6.00p.m Sunday [or Monday if a public holiday], such residence periods to commence on Friday 18 March 2005.
(b)For 3 hours on Easter Sunday from 10.00a.m until 1.00pm or at such other time as agreed between the parties [if the children residing with mother].
(c)One overnight period each week on a day to be agreed between the parties, or failing agreement, on the day KAM has soccer training from 4.00p.m until the following morning when the father shall deliver KAM to school and the other children to the mother’s residence by no later than 9.00a.m or as otherwise agreed, such overnight periods to commence in the week beginning 14 March 2005.
(d)On Father’s Day from 9.00a.m until 6.00p.m [if the children are residing with the mother].
(e)On the children’s birthdays for a period of 3 hours, precise times to be agreed between the parties [if the children are residing with the mother].
(f)At any other time by agreement between the parties.
That the children reside with the mother:
(a)At all times they are not residing with the father.
(b)For 3 hours on Easter Sunday from 10.00a.m until 1.00pm or at such other time as agreed between the parties [if the children are residing with the father].
(c)On Mother’s Day from 9.00a.m until 6.00p.m [if the children are residing with the father].
(d)On the children’s birthdays for a period of 3 hours, precise times to be agreed between the parties [if the children residing with the father].
(e)At any other time by agreement between the parties.
For the purpose of changeover, subject to order (9) unless otherwise agreed between the parties, the father shall collect the children from the mother’s residence at the commencement of his residence periods and the mother shall collect the children from the father’s residence at the conclusion of his residence periods.
That the children have liberal telephone contact with the other parent when in each party’s care and the parent with whom the children are residing shall facilitate such contact.
That there be no changes to the children’s parenting arrangements provided for in these orders without the agreement of each party and any changes are to be negotiated between the parties in the absence of the children.
That without the prior consent of the mother, the father be restrained from entering the home and the mother to have exclusive occupation of the home.
That within 7 days of order, the mother shall deliver or cause to be delivered to the home of the father’s mother any personal possessions of the father requested by him of the mother in writing within 4 days of the date of order.
That the mother forthwith do all things and sign all documents necessary to authorise and direct the day care centre, pre-school and school attended by the children to discuss their progress with the father, and to provide reports, photographs and copies of any correspondence or notices distributed to parents or relating to any of the children specifically and both parties shall be entitled to fully participate in all and any activities at the day care centre, pre-school or school or connected with them.
That each party notify the other party as soon as practicable if any of the children require any emergency medical treatment or hospitalisation whilst in the care of that party.
That each party notify the other party in writing of any change to his or her residential address and/or landline and mobile telephone number not less than 14 days before such change takes place.
That neither party denigrate or permit any other person to denigrate the other party or any member of the other’s party’s family or household in the presence of or hearing of the children or any of them.
That each party be restrained from communicating with the other by text message.
That each party be restrained from swearing in the presence or hearing of the children or any of them.
That each party be restrained from discussing these proceedings or any matter connected with these proceedings with any person except each other in private, each other in the presence of a mediator or counsellor and with their legal representatives.
That the parties make an appointment for intake into a post separation parenting program within 7 days of order, such program to be selected and agreed by their legal representatives and failing such agreement within 7 days, each party:
(a)Contact UNIFAM and arrange an appointment within 28 days for an initial assessment as to suitability for a post-separation parenting program.
(b)Attend the appointment at any reasonable location nominated by the provider and complete the assessment.
(c)If assessed as suitable for a program or part of a program and the program provider nominates a particular program to attend, the parties must attend that program or part of the program (as the provider directs) as soon as practicable.
UNIFAM is requested to notify the court in writing as soon as practicable if the parties have failed to attend the initial assessment and the Registry Manager must re-list these proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
The program provider must complete the assessment within 28 days.
Upon completion of the initial assessment the program provider must notify the court of the results.
The program provider must inform the court in writing as soon as possible if:
(a)A party to this order has failed to attend the program;
(b)The program provider considers a party a subject of the order is unsuitable to take any further part in the program or part of the program.
Upon receipt of such notification from the program provider, the Registry Manager is to re-list the proceedings for further orders.
That the mother provide a copy of these Orders and Reasons for Judgement to UNIFAM at her intake interview.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
THE COURT FURTHER ORDERS THAT:
The matter be transferred to the Family Court of Australia at this Registry with a request that the matter be listed for directions at 9.45a.m. on 17 March 2005.
NOTATION
The Court notes that the father intends filing an application for property settlement within 7 days and that the parties’ legal representatives agree the final hearing will proceed for longer than 2 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 597 of 2005
| VCM |
Applicant
And
| KRM |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for interim parenting orders in relation to three children, KAM, born 26 May 1999, EMM, born 14 August 2001 and SRM, born 12 February 2004.
These proceedings were commenced by the mother who filed an application on 11 February 2005 seeking residence of the children, an order for the father to return to her care the eldest child KAM, an order that the children have reasonable contact with the father and an order for exclusive occupation of the former matrimonial home.
At hearing, the mother amended the orders she sought in relation to contact to an order that the children have contact with the father on alternate weekends, one night each week and at other times by agreement.
The father filed his response on 2 March 2005 seeking, on an interim basis, residence of the children, an order that the mother have supervised contact with the children and an order for the exclusive occupation of the matrimonial home.
At hearing, the father amended the orders he sought in relation to contact to an order that the children have supervised contact with the mother at CWCS for four hours per week.
There are no current parenting orders.
There are proceedings pending at Burwood Local Court in relation to apprehended violence complaints filed by each party against the other. In addition, the mother has sought an order against Ms GD, a friend of the father’s and Ms GD has sought an order against the mother. All matters are listed at Burwood Local Court on 18 March 2005. Both parties have entered into mutual undertakings, subject to any orders made by this Court, not to contact each other during the period of the adjournment. The father has undertaken not to reside at the home.
Both parties were represented at hearing.
Background
The mother was born on 24 March 1970. She is 34 years old.
The mother is not currently in paid employment.
The father was born 28 February 1964. He is 41 years old.
The father is employed full time as an aircraft maintenance engineer.
The parties commenced living together in approximately 1997.
The parties married on 13 October 2000.
Since August 2003 the parties have lived at their home.
The parties separated on 5 February 2005 when the father moved to his parents’ home.
On 10 February 2005 the father took KAM with him to stay at the father’s parents’ home.
The father returned to the former matrimonial home with KAM on or about 15 February 2005 until early March 2005 when he returned to the home of his parents with KAM.
KAM attends PWPS in kindergarten. EMM attends pre-school three days a week. SRM usually attends day care one day a week, though has been attending 3 days a week recently.
At the time of hearing, KAM was living with the father at the home of the father’s parents and the two younger children were living with the mother in the former matrimonial home.
Issues
The court was asked to decide the question of interim residence of the three children and whether the party with the care of the children should have exclusive occupation of the home.
The relevant law
Both parties sought injunctions for the welfare of the children pursuant to Section 68B(1)(c)(i) of the Act. Federal Magistrate Ryan in Gorst & Gorst [2004] FMCA Fam 300 set out a very useful outline of the law in this area. Her Honour said this is a wide ranging injunctive power limited only by the requirement that the order is “appropriate for the welfare of the child.” The power involves restraining a person from entering or remaining on a specified place, in this case, the former matrimonial home. Both parties in the case before me claimed the injunction was necessary to protect the children from being subjected to the ongoing conflict between the parties. Her Honour set out the long line of authority dealing with the criteria courts should have regard to when determining an application for occupation of a family home based upon Section 114(1), some of which I refer to here. In Page v Page (1981) FLC 91-025 the Full Court cited with approval the decision of Justice Cumming Bruce in Bassett v Bassett (1975) 1 All ER 513 at 520 where his Honour held:
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 husband and wife to continue to live in the former 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 wife 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 is unlikely that the Court will be able to predict who will be living in the matrimonial home after 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 Scholte (2002) FamCA 59 (unreported) the Full Court referred to Davis v Davis (1983) FLC 91-319 where Barker J at 78-170 cited with approval Lindenmeyer J in Price v Price (unreported 12 July 1982) where his Honour held:
“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 or sensible or practicable to expect them to continue to remain in the home together.”
The Full Court held in Sieling v Sieling (1979) FLC 90-627 held:
“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 that 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.”
The factors a court will usually have regard to in these cases are the needs of the children, the hardship to either party or the children, the means of the parties, the needs of the parties and the conduct of the parties. The court will consider the whole of the circumstances to decide whether an injunction is appropriate for the welfare of the children. If granted, the court is likely to have considered that the injunction would benefit the children. Even though the paramount consideration principle does not apply to Section 68B injunctions, the best interests of the child will be important in the exercise of the court’s discretion [see CDJ v VAJ (1998) 157 ALR 686].
Both parties sought an order for interim residence of the three children as well as exclusive occupation of the home. Both parties submitted the children should live in the home whatever the outcome of the interim residence dispute. The mother prioritised her application for interim residence ahead of her application for exclusive occupation. She said if her application for exclusive occupation failed, she wanted the children to live with her elsewhere. The father contended that if both parties failed in their respective applications for exclusive occupation he would return to live at the home, and remain living there, separately and apart from the mother, until final determination of the property and parenting issues between them. The mother submitted that under no circumstances would she live with the father under the one roof, given the high level of conflict between them.
It was therefore necessary to decide the question of interim residence before deciding the question of exclusive occupation.
The overriding principle in determining parenting issues is that the best interests of the children are the paramount consideration. The Full Court in Cowling v Cowling (1998) FLC 92-801 held that in determining an interim residence application, the best interests of the child will normally be best met by ensuring stability in a child’s life pending a full hearing of all relevant issues. The Full Court held that if a child is well settled the child’s stability will usually be promoted by an order providing for a continuation of that arrangement.
Evidence and findings
The mother relied on:
·Her affidavit sworn 2 March 2005;
·Her affidavit sworn 11 February 2005.
The mother deposed to ceasing work just before KAM’s birth and, apart from some limited casual work, to devoting herself to the care of the children since they were born.
The mother said the parties’ relationship deteriorated from 2002 when the father became impatient and demanding. She complained of the father behaving aggressively, hitting KAM over the head and hitting her. The mother said the father used to leave home from time to time for up to a few weeks without communicating his whereabouts. Since April 2004 the mother said she has taken anti-depressant medication primarily for post-natal depression.
The mother acknowledged the support she has received from the father’s mother and sister and the contribution made by the father to the children’s care.
In early February 2005 an incident occurred which led the mother to believe the father was having an affair. This triggered a destructive collapse in the parties’ relationship. The mother deposed to heated arguments and the necessity for police intervention on a number of occasions. From 7 until 10 February 2005 the children had no contact with the father. On 10 February the mother deposed to the father arriving at the home with his mother and sister and saying “I have come to take my children.” The mother demanded he leave and refused to hand over the children. Both parties were screaming, the children were crying. The mother called the police. In the end, according to the mother, the father managed to coax KAM to come to him and the father took KAM with him. The mother deposed to being hysterical during this incident, begging the father to leave KAM with her. When the mother, with the assistance of the Legal Aid Commission, failed to negotiate KAM’s return the following day, the mother filed an urgent application for KAM’s recovery.
During the period 11 to 15 February the mother deposed to the father visiting the home without KAM on a number of occasions. The father insisted the mother pack her things and leave the home. The mother refused. The mother did not see KAM again until about 15 February 2005 when the father, with KAM, returned to the home. According to the mother the father then slept in the bedroom downstairs and usually with KAM in the same bed. The mother deposed to the father demanding sex and invading her privacy during this period. There were arguments between the parties as to who was going to take KAM to and from school. The mother would arrive to collect KAM to find the father standing behind her. On 28 February 2005 KAM said to his mother: “Ah, ah, you can’t pick me up, I have to wait for Dad.” On 24 February 2005 the parties had another heated argument in front of the children which involved physical fighting. They argued over who would take the children. The father threatened to take the children. The parties fought over the baby’s car seat. The father backed the mother into a corner, put his fist close to the mother while the baby was in the mother’s arms. The father demanded the spare car key. The father yelled “you have lost it, you are never getting your kids.” The father took the baby’s car seat while the mother begged him to leave it. The mother pushed the father when he tried to take EMM. The father attempted to get the neighbours to call the police. The father left with KAM and EMM. The police were once again involved. That afternoon the father took EMM from pre-school and returned her home at 9.00p.m that evening. The next day the father threatened to remove SRM from day care. On 28 February 2005 the mother obtained an interim apprehended violence order against the father.
The father relied on:
·His affidavit sworn 4 March 2005.
·The affidavit of CAB, the father’s sister, sworn 4 March 2005.
·The affidavit of MGM, the father’s mother, sworn 4 March 2005.
·The affidavit of Ms GD sworn 7 March 2005.
The father agreed that the mother spent very little time in the work- force after the children were born. The father deposed to being extensively involved in the children’s day to day care as he worked shifts and was often home during the day. The father has always been involved in soccer and serves as a member of the club committee. He is a coach and a senior player and the family as a whole have spent and continue to spend regular time at the R club, a club originally established by the father’s parents.
The father was critical of the mother’s care of the children as were his sister and mother. The father said the mother too readily delegated her parental responsibilities to others: she placed EMM in pre-school more often than necessary, she placed SRM in day care more often than necessary and left the children with his mother and sister too frequently and for reasons which were unexplained. He said from the time of SRM’s birth he has told the mother she needed to do more in her role as the children’s mother. He said the mother was abusive of him and he advised her to see a doctor. She was prescribed anti-depressant medication. He used to ask the mother if she had taken her ‘pills’ when they were arguing. The father deposed to the mother being a poor housekeeper as did his sister. He was critical of her decision to take holidays without the children on three separate occasions when he was required to care for the children with help from his mother and sister. The father said the parties’ marriage had been deteriorating since 2000 with the parties frequently arguing about the state of the house and their respective approaches to parenting.
The father denied the affair he was accused of by the mother but agreed the mother’s belief in his infidelity was the final trigger to end the marriage. He described in detail the mother’s reaction to her belief the affair had occurred and his denial. The father described an incident on 8 February when the mother confronted the other party, Ms GD, and lost control. The father deposed to the mother being aggressive and using obscene language. Ms GD denied the affair to the mother and is on affidavit in these proceedings. The father called the police. As a result Ms GD commenced proceedings against the mother for an apprehended violence order.
According to the father, on the following day the mother confronted the father in the presence of the children demanding the father tell the children he had left them. The mother used obscene language in front of the children and they were visibly distressed. The father said this incident prompted him to go to the mother’s home on 10 February with his mother and sister to remove the children. The father deposed to the mother telling him to leave and both parties shouting at each other. Again the police were called to intervene. The father acknowledged beckoning KAM to leave the house and to taking him to his parent’s home with him. If the father’s version of events is accurate, the mother’s behaviour was extreme. She was emotionally distraught. The father said after his return to the home to live on or about 15 February, the mother continued to be obsessed with the alleged affair and there were constant arguments between them. On 17 February 2005 the police were involved again when the father’s sister arrived at the home and did not leave at the mother’s request.
The father complained of the mother staying out until 2.00a.m. on 18 February 2005 while he was minding the children. He complained of the mother going out again on 27 February when he took the children out for a birthday dinner and told the mother Ms GD might be at the event. The father said the mother lost control and made an abusive remark about Ms GD which led to an altercation between the mother and KAM. The father deposed to a belief that the mother arranged for him to be hit by a car on 28 February and to a belief that the mother had deliberately avoided personal attendance at court ordered mediation on 22 February.
Counsel for the father submitted the mother should not be left with the children unsupervised as her behaviour was erratic, extreme and unpredictable. He referred to an annexure to the father’s affidavit in which the father had transcribed many text messages from the mother to the father. Any responses from the father were not included. In the father’s view, the mother cannot now be trusted. The father proposed the children see their mother once a week for 4 hours under close supervision and otherwise live with him. The father said the mother needed psychiatric treatment and should not see the children unsupervised until she had received appropriate treatment.
The father said if his application for interim residence was successful, his sister and mother would assist with the care of the children when he was working. The father deposed to being prepared to pay his sister $500 per week to help with the children’s care although his sister said she would care for the children without pay. The father said the children have always had a lot of contact with his mother and sister. This was corroborated by the affidavit evidence of the father’s sister and mother. When necessary, the father said he could have a live-in carer at a cost of $500-600 per week. The father also deposed to his employer providing day care if necessary.
Findings
In interim proceedings of this kind where the parties are not cross-examined, I am not able to make findings in relation to the factual disputes between the parties nor findings as to either party’s credit. However, I am satisfied on the basis of the evidence of both parties that the relationship between the parties has been deteriorating during at least the last 2-3 years and that it has deteriorated markedly in recent weeks. I am satisfied the conflict between the parties is now so extreme that the children are being affected adversely. The father’s sister deposed to observing the children behaving differently when out with the father’s family very recently. I find the parties have shown little regard for the needs of the children since their separation. I find both parties have lost sight of the children’s best interests and abrogated their parental responsibility to ensure their children are emotionally safe. Both parties have allowed their emotions, whether anger, resentment, grief or apprehension for the future, to cloud their rational judgement. However, on the limited evidence before me as to the parties’ commitment to the children in the past, I am satisfied that with professional assistance and the passing of time, both parents are likely to regain that commitment. I am satisfied the mother holds a sincere belief that she has been betrayed by the father and whether her belief is reasonable or not, the mother has been distraught as a result. I do not accept on the evidence of the father that the mother is mentally unstable.
There is no dispute between the parties that the mother has been the parent with the primary responsibility day to day for the care of the children. That is not to say the father has not played an important and significant role in the children’s lives, particularly as he has had the advantage of working varied hours. I am satisfied the father’s mother and sister have played an important role in supporting the parties in the care of the children and that the children have positive and meaningful attachments to them. I am satisfied the children are very attached to both their parents.
The children have had to cope with significant trauma in the last few weeks. KAM has been separated twice from his siblings and had periods of several days when he has had no contact with his mother. I expect both parents now recognise KAM’s confusion and distress when trying to negotiate between his parents as to which parent he should go home with after school.
The father offered no satisfactory explanation for his actions on
10 February when he came to the home and tried to take the children from the mother. I do not accept the father believed the children would come to any harm in the care of the mother. The father removed KAM from the mother when emotions were running high, police were present and his mother was distraught about the prospect of the children being taken. I find the father’s actions were provocative. The mother in turn offered no satisfactory explanation for her behaviour in front of the children at the father’s parents’ home on 9 February 2005. I find her behaviour on this occasion was inappropriate, unacceptable and unjustifiable. I am satisfied both parties acted precipitously on these occasions without giving proper consideration to the ramifications of their actions on the children.It was submitted on the mother’s behalf that the court should follow the principles set out in Cowling [paragraph 28]. It was submitted that given the very young ages of the children, the history of parenting arrangements between the parties during the marriage, the proposed arrangements for the children’s care in the foreseeable future by each party, the children’s stability can be best promoted by a residence order in favour of the mother.
It was submitted on the father’s behalf that the mother’s behaviour has been so erratic, unpredictable and aggressive and her conduct so inappropriate that to leave the children with her would pose an unacceptable risk to them. It was submitted the mother embarked on an irrational campaign of intimidation and harassment of the father without regard to the children, who were often present or within earshot of her rantings. It was contended that even if the father was involved in an affair, the mother’s behaviour was so disproportionate to a normal reaction, that she must be mentally unstable and in need of psychiatric treatment.
Much of the evidence before me was focussed on the events of the last 4-5 weeks, the period immediately after separation when emotions were running very high and the parties’ behaviour aberrant. I am satisfied that until separation the mother has been the homemaker and the main carer of the children. The father has been the breadwinner and although I am satisfied he has taken an active and constructive parenting role, he has not been in a position to spend as much time with the children as the mother.
Although the father and his family have been critical of the mother’s role as a homemaker there was no suggestion the mother has not had the capacity to care for the children even during the events of the last few weeks. There was no evidence to suggest the children were not well settled prior to the parties’ separation in early February. There was no evidence of risk of any kind to the children in the period before the parties’ separation. I am persuaded that since then, both parties have compromised the welfare of the children by exposing them to constant and extreme levels of conflict. The children have been used as weapons in the battle. Once the parties are living physically apart without interference from one to the other I am satisfied the conflict will be significantly reduced.
It was not submitted for the father that his proposal for interim residence best reflected what the children were used to and therefore best promoted their stability. It was submitted for the father that the mother was mentally unstable and therefore could not be trusted to care for the children. It was submitted the children should live with the parent who promoted least conflict, the father. On the other hand, it was submitted for the father that the mother regarded him as a good father because she was offering a significant amount of contact to him if the children were to live with her. I interpret this evidence differently from counsel for the father. I find that the mother has shown by her application that she recognises the importance of the father’s relationship with the children, the children’s strong attachment to him, and their consequent need to have regular contact with him. The father on the other hand has shown no such insight. He did not address in his evidence how he believed removal of the children from the mother and minimal contact with her, would impact on their emotional well being. I am troubled by the father’s proposal for the children’s contact with the mother in the event his application for interim residence were successful. The father’s application suggests a disturbing lack of insight into the needs of the children who have been cared for by their mother and who have relied on her all their lives to meet the majority of their needs day to day, whatever might be his view as to the mother’s mental state.
I have decided that on an interim basis the children’s interests are best served by an order that they reside primarily with their mother.
In relation to the question of exclusive occupation there was no dispute between the parties that the mother has no independent financial resources to move to alternative accommodation. There was no dispute the father earns an estimated $96,000.00 per annum and has the support of his mother and his sister’s family. The mother has been living at the home with the children since the family moved there in August 2003. The children would not remember any other home. With the exception of the last few weeks, the children have been in a stable environment residing in their home and attending day care, pre-school or school. Their mother has been at home full time. The relationship between the parties has been extremely volatile in recent weeks and the children have been subjected to appalling conduct on the part of both their parents. I am satisfied the children have been adversely affected by their continuous exposure to the destructive exchanges between the parties and need to be protected from further outbursts. Counsel for the father said unequivocally that the father would return to the home if an exclusive occupation order was not made in favour of the mother. I am satisfied this would not be in the best interests of the children as the risk of further conflict is still so high.
The father did not know where the mother would live if he were successful in his application for exclusive occupation of the home. His counsel suggested the mother’s sister might write to the father’s solicitor to ask for financial support. The father made no offer to assist the mother financially as part of his proposal before me, although counsel submitted the father’s evidence in relation to paying his sister to care for the children indicated his capacity to financially assist the mother.
The authorities make it clear that courts should impose minimal change on children at an interim stage. Separation is a time of great distress and upheaval. Forcing more change on children than is necessary can only serve to increase the distress they will already experience as a result of the break up of their family. As far as possible the children should be able to continue their routine from their family home.
Given that I have found the children should live with the mother and remain in their family home, the court must consider whether there should be an order for exclusive occupation of the home. In this case there has been a high level of tension and conflict and the children have been caught in the cross fire as the parties have battled it out. The father has spent time with his mother away from the home. The father has a solid income and the means to live separately. Although the father has said that he believes, with appropriate restraints in the orders, further conflict can be minimised if he returns to the home, the mother is adamant she cannot live in the same house as the father. The mother believes the conflict would escalate. The father’s counsel advised the court he would be seeking orders for property adjustment. This has the potential to create further tension between the parties with the potential for negative consequences for the children. I have decided it is proper to make an order that the father not return to the home.
I am satisfied the orders I have made are in the best interests of the children on an interim basis and in relation to the injunction that the order I have made is proper in all the circumstances, pending further order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 11 March 2005