YENGER & WILBERT
[2020] FCCA 3486
•23 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YENGER & WILBERT | [2020] FCCA 3486 |
| Catchwords: FAMILY LAW – Interim parenting – where each party seeks exclusive occupancy of the former matrimonial home – significant parental conflict – assessment of risk – mother to have sole occupancy – children to live with mother and spend time with father. |
| Legislation: Family Law Act 1975 (Cth), s.68B |
| Cases cited: VCM & KRM [2005] FMCAfam 108 |
| Applicant: | MS YENGER |
| Respondent: | MR WILBERT |
| File Number: | PAC 4459 of 2020 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 28 October 2020 |
| Date of Last Submission: | 28 October 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 23 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd |
| Solicitors for the Applicant: | Khalil Family Lawyers |
| Counsel for the Respondent: | Ms Bridger |
| Solicitors for the Respondent: | Bray Jackson & Co |
| Appearing for the Independent Children’s Lawyer: | Ms Rutkowska |
| Solicitors for the Independent Children’s Lawyer: | Ark Lawyers |
PENDING FURTHER OTHER
The children X born in 2007 and Y born in 2012 shall live with the mother.
The child Z born in 2003 shall live with and spend time with each parent in accordance with her wishes.
X and Y shall spend time with the father at all times as agreed between the parents in writing, and failing agreement as follows:
(a)Each alternate week commencing from after school on Friday until Monday morning whereby the father will collect X and Y from school and drop them off at school, or the mother’s home if not on a school day.
(b)During the school holiday periods at the conclusion of Terms 1, 2 and 3:
(i)In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and
(ii)In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm on the last Saturday prior to the commencement of school.
(c)During the school holiday period at the conclusion of Term 4:
(i)In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and
(ii)In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm of the Saturday prior to the commencement of the new school year.
(d)During Christmas as follows:
(i)In even numbered years, from 2pm on 24 December until 2pm on 25 December.
(ii)In odd numbered years, from 2pm on 25 December until 2pm on 26 December.
The father shall, within 28 days of the date of these Orders, vacate the property situated at B Street, Suburb C and thereafter the father is hereby restrained by injunction from residing in the property situated at B Street, Suburb C.
The matter is listed for directions at 2:15pm on 29 March 2021.
The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.
IT IS NOTED that publication of this judgment under the pseudonym Yenger & Wilbert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4459 of 2020
| MS YENGER |
Applicant
And
| MR WILBERT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are short form reasons in respect of competing interim parenting applications, including injunctive relief sought pursuant to s.68B of Family Law Act 1975 (Cth) (“Act”) by each party for sole occupancy of the former matrimonial home.[1]
[1] The Initiating Application seeks relief for property adjustment orders, however, that application is brought out of time and at present, the Court’s jurisdiction in that regard has not been enlivened.
The parties to the proceedings are the parents of the three children of the relationship, Z, X and Y. The applicant is the children’s mother and the respondent is the father.
The parents separated in 2018 and have remained living separated in the former matrimonial home since then. The applicant and the children have occupied the main house while the respondent has been living in a detached one-bedroom self-contained unit at the rear of the main house (“the cabana”).
The conflict between the parents is ongoing and problematic.
The eldest child Z is suffering from significant mental health issues, she has told both of her parents that she cannot continue living in the family home if both of them are still there.
The middle child X is severely acting out. She is using illicit substances, running away from home, being physically abusive of her family members and generally acting in problematic ways.
The youngest child Y, so far, does not appear to be afflicted in similar ways to her sisters.
Relevant Evidence
There are a few agreed and/or uncontroversial facts between the parties, as far as relevant they are as follows:
a)The mother was born in 1970. She is currently 49 years old.
b)The father was born in 1972. He is currently 48 years old.
c)The parties commenced a relationship in 2002.
d)There are three children of the relationship, Z born in 2003, X born in 2007 and Y born in 2012.
e)The parties purchased the former matrimonial home situated at B Street, Suburb C in joint names in 2003. The property comprises a five-bedroom main house with a separate music studio located at the basement of the house (used by the father from time to time). The property also comprises the cabana.
f)Z, the eldest child, was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Depression, Anxiety and commenced treatment at D Hospital. However, on the evidence of the parties the timing of Z’s diagnosis appears not to be agreed.
g)The parties separated in or about January 2018.
h)After separation, the father commenced living in the cabana, where he continues to reside, and the mother and the children remained living in the main house.
i)In 2018, the mother and children went on holidays to Country E. During this holiday, Z became physically violent towards the mother. Z was taken to hospital. The father collected Z from Country E and returned to Australia.
j)In or about late 2018, Z became physically and verbally violent at a psychologist appointment towards the father and as a result police were called and an Apprehended Violence Order (“AVO”) was issued against Z for the protection of the father.
k)In or about early 2020, X became physically violent towards the mother. The mother contacted the father for assistance. An AVO was issued against X for the protection of the mother (it is unclear if that included for the protection of Z and Y).
l)In or about mid 2020, X was admitted to the F Hospital because of a drug episode.
m)In mid 2020, Z was self-admitted, with the assistance of the father, to the G Ward of the F Hospital after having expressed suicidal ideations. Z disclosed, during this admission, to treating health practitioners that she had been sexually assaulted in late 2019.
n)Z voluntarily elected to reside at H Refuge in Suburb J.
o)On 13 September 2020, Z experienced an allergic reaction and the father took her to the D Hospital for treatment.
p)On 25 September 2020, Z returned to the family home.
The parties are ad idem as far as Z is concerned, that is, they agree that she should live with and spend time with each of her parents in accordance with her wishes.
The mother and the Independent Children’s Lawyer propose for the X and Y to live with the mother in the former matrimonial home and spend time with the father from after school Friday until before school Monday on each alternate weeks, half the school holidays and on special occasions.
The father proposes for X and Y to live with him in the former matrimonial home and spend time with the mother from 10am on Sunday to the commencement of school on Monday.
The mother says that the father’s continued presence in the home poses and unacceptable risk of psychological harm to the children, such that would warrant a restraint preventing him from residing in the former matrimonial home.
The mother says to the Court that:
a)she is concerned of the father’s ongoing residence in the home, particularly in circumstances where he comes in to the main home as he pleases. The mother further gives evidence of the father’s ongoing denigration of the mother in front of the children which has caused her mental health to deteriorate;
b)she is the primary carer of the children; and
c)Z and X have both disclosed a wish for the parties not to both reside in the home. The mother contends that Z has asked the father to leave the residence and that it can be inferred that X has expressed a similar sentiment to treating psychologists.
The mother submits that the children should remain living in the former matrimonial home, but that they should live with her. She says that if an order is made for the children to live with her, but if she is not granted exclusive occupancy of the home then the children should still live with her albeit she will need to find alternative accommodation for herself and the children.
The mother says that if she and the children remain living in the former matrimonial home, despite the fact that she runs a successful business, her income and expenses are “line and ball” and that she will not be able to meet the mortgage repayments on the former matrimonial home and that they should continue to be met by the father.
The mother further submits that a company of which the father is a sole director of, is the owner of a duplex at K(1) and K(2) Street, Suburb L and that this property is available to the father to reside in.
The father says to the Court that the mother is emotionally unstable, often exasperated by her heavy alcohol consumption and that she lacks the emotional insight to understand how the children have been affected by her conduct and mental health issues. The father says that the mother lacks the capacity to care for the emotional needs of the children.
The father further says to the Court that:
a)during the parties relationship he was entirely responsible for the cooking[2], assisting the children with their homework and academic needs and driving the children to and from extra-curricular activities that the children were engaged in (to name a few);
b)most recently he has managed the majority of the children’s medical issues; and
c)he has very little interactions with the mother as he lives in the cabana and only enters the main house when the mother is not home.
[2] Affidavit of Mr Wilbert filed 14 September 2020 at [36]
The father submits that he does not have the financial capacity to continue paying the mortgage over the former matrimonial home and to pay for alternate residence for himself. He says that he should be granted exclusive occupancy of the former matrimonial home and that the children should continue to live with him there. The father did not make any submissions as to what was to occur if an order was made for the children to live with the mother, that is, whether the mother should in those circumstances be granted sole exclusive occupancy of the home.
Court’s Determination
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.
Even in such constrained circumstances, the Court is still required to determine the applications before it.
In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.
Exclusive Occupancy of the Former Matrimonial Home
Section 68B of the Act provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including, relevantly, an injunction restraining a person from entering or remaining in a place of residence of the child. An injunction under s.68B may be granted unconditionally or on such terms and conditions as the Court deems appropriate.
Although not binding, a useful summary of principles in respect of s.68B orders for exclusive occupancy was set out in VCM & KRM.[3] In that regard, the Court notes as follows:
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.
[3] [2005] FMCAfam 108 per Sexton FM (as her Honour them was), referring to MG & JGG [2004] FMCAfam 300; Page v Page (1981) FLC 91-025; Bassett v Bassett (1975) 1 All ER 513; Scholte (2002) FamCA 59; Davis v Davis (1983) FLC 91-319; Sieling v Sieling (1979) FLC 90-627
The Court further notes that notwithstanding the mother’s application for property adjustment orders, the Court is not vested with jurisdiction in that regard as those proceedings are brought out of time and the question of leave for proceedings to be commenced out of time is yet to be determined. It appears on the evidence that the parties had for some time prior to the commencement of proceedings been attempting to negotiate a property settlement between them.
There is limited evidence about the parties’ financial capacity. Each of the parties sets out in their evidence their purported difficult financial circumstances, notwithstanding that each of the parents is in full-time employment and that each of them prima facie appears to have a capacity to earn a significant income, the father particularly so.
The evidence in the mother’s case is that the father has a salary of $323,035 per annum, made up of a base salary of $285,000, a $10,000 travel allowance and $28,025 superannuation.
The father says he is a professional. The father has considerable flexibility in when and from where he works. Post separation, the father has continued to meet the loan repayments on the former matrimonial home of $5,540 per month. He says in his affidavit that he has a monthly mortgage liability associated with the property at Suburb L (owned by a company of which he is the sole director) in the amount of $12,150 per month (which is about $2826 per week), but that the company which owns the property receives between $1,200 and $1,000 per week in rental income for each of the two duplexes.
The father’s financial statement filed 14 September 2020 disclose a weekly income of $8,182 comprised of rent of $2,400 per week and a salary of $5,782. His expenses are said to be $8,505 each week. Interestingly, the father’s financial statement has the father as the legal owner of the property at Suburb L.
There is no evidence as to the financial arrangements between the company which owns the property and the father, or indeed the father’s financial and taxation arrangements. These are relevant matters that the father has to date not disclosed in his evidence.
The mother runs a business which is located in close proximity to the former matrimonial home. The mother’s financial statement filed 11 September 2020, reveals that she earns $2,884 gross per week, but that after paying her income tax, superannuation, insurances and visa credit card, she has $440 left over each week.
The mother’s financial statement also reveals that the parties have some $556,000 in a mortgage offset account, which also appears in the father’s financial statement, as does an additional amount of $60,000 in a different offset account associated with the Suburb L property.
By making orders for the parent with whom the children do not live to move out of the former matrimonial home, the Court is not concerned that this will leave either party destitute or that the parties will not be able to meet their ongoing obligations in respect of the mortgage.
It might be that there are further skirmishes between the parties along the way flowing from the interim exclusive occupancy order which the Court will make. After all, it appears that the parties are both mortgagors and jointly and severally liable under the terms of the mortgage encumbering the former matrimonial home. They each have obligations pursuant to that mortgage. If they do not comply with those obligations, the mortgagee will no doubt exercise its rights pursuant to the mortgage.
With whom should the children live?
There is very little separating the parties’ cases, and it is evident from the applications which are brought as well as the situation which the children find themselves in at present, that neither parent is terribly child focused, but that rather the parents’ primary focus is on keeping the conflict between them well and truly alive.
If one is to believe the parties individually, they are each a model parent and the other parent is to blame for the situation the children and the parties find themselves in at present. This cannot be so.
The children are aged 17, 13 and 8.
The parents agree, as noted earlier, that Z should live with and spend time with each of her parents in accordance with her wishes.
Apart from the parents’ views that this is in that child’s best interest, the Court has no other evidence about this, and it may be ultimately that putting the burden on Z to decide these matters might be a burden too heavy for her given her frailties. She has already voted with her feet and she may well do so in the future, such that she severs the ties with either one or both of her parents.
On the evidence before it, the Court is not satisfied that either parent poses an unacceptable risk of harm to the children in the manner alleged.
However, the Court is satisfied on the evidence that continued exposure of the children to the parental conflict is likely to place the children at an unacceptable risk of psychological harm. An example of this is to be found in the opinion of Mr M, clinical psychologist, who says:
The current situation where the separated parents continue to live in the same household is the largest impediment to treating X’s mental health difficulties due to the children’s exposure to ongoing conflict between the parents.[4]
[4] Affidavit of Ms Yenger, filed 26 October 2020 at page 46
The text messages before the Court show the level of conflict between the parties and the children’s difficulty in navigating that conflict. The children may well be saying to each of the parents what they think that parent wants to hear and indeed they may be well and truly confused about what they want given the significant parental conflict.
The Independent Children’s Lawyer has spoken to the two older children, and based on what the children have said to her she supports the mother’s application.
It is clear from the evidence and the submissions, that the children dearly love both of their parents and want to spend time with both of them.
Whoever the children live with, they should, in the interim at least, remain living in the former matrimonial home, as it will provide the children with stability and ensure that there is least disruption possible for them as the parents continue to be involved in this litigation.
It appears that prima facie it is the mother who has been the children’s primary carer throughout their lives, notwithstanding the parties’ busy careers and the assistance of nannies and the mother’s parents in looking after the children from time to time.
Both parents have had significant involvement in the children’s lives, however, since separation the children have remained living primarily with the mother, while the father has been easily accessible to them.
It is therefore in the children’s best interest that, in the interim period, they remain living with the mother in the former matrimonial home and that the mother is granted exclusive occupancy of the home to that end.
Given that there is no evidence of any immediate long-term issues which might require a parental decision, or that the parties have been unable to jointly make any such long-term decisions, the Court declines to make any order for parental responsibility. Indeed, neither party presses the Court for any orders in respect of parental responsibility in the interim period. This leaves the situation in accordance with the relevant legislative provisions.
For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 23 December 2020
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