ZEREZ & CERVANTES

[2013] FamCA 1030

FAMILY COURT OF AUSTRALIA

ZEREZ & CERVANTES [2013] FamCA 1030

FAMILY LAW – DE FACTO RELATIONSHIPS – Interim parenting – conflictual relationship where both parties remain separated under the one roof at hearing – consideration as to appropriate orders to be made in circumstances where both parties seek order for sole use and occupation of the family home.

FAMILY LAW – DE FACTO RELATIONSHIPS – Injunction - both parties seek orders for sole use and occupation of the former family home – consideration of relevant factors – de facto husband ordered to vacate the home.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Plowman (1970) 16 FLR 447

APPLICANT: Ms Zerez

RESPONDENT: Mr Cervantes

FILE NUMBER: PAC 723 of 2013

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Coleman & Grieg Lawyers

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

That pending further order:

1. That the applicant de facto wife have sole use and occupation of the home situated at B Street, Suburb C to the exclusion of the de facto husband.

2. That the husband vacate the property at B Street, Suburb C by no later than 6.00 pm on Saturday 21 December 2013 and thereafter remain away from and not enter upon that property except as otherwise provided for in these orders.

3. That the husband continued to pay as they fall due and payable council and water rates levied in respect to the property and mortgage payments and maintain building and contents insurance in respect to the said property and its contents and that otherwise the wife pay utilities outgoings in respect to her occupation of the property.

4. That upon vacating the home at B Street, Suburb C the husband be at liberty to remove from the property his clothing and personal effects and such items of contents, furniture and furnishings as are agreed in writing between himself and the wife.

Parenting:

1. That the children D born … 2011 and E born … 2006 live with the de facto wife.

2. That the children spend time with the de facto husband as follows:

   (a)At such times and on such occasions as are agreed between the parties in writing with such writing to include SMS or email communication;

   (b)       From 9.00 am 26 December 2013 to 9.00 am 27 December 2013;

   (c)       From 6.30 pm 28 December 2013 to 6.30 pm 11 January 2014;

   (d)       From after-school 30 January 2014 to 6.00 pm 3 January 2014;

   (e)       From after-school 6 February 2014 to before school 7 February 2014;

   (f)       From after-school 14 February 2014 to before school 17 February 2014;

   (g)       From after-school 20 February 2014 to before school 21 February 2014;

   (h)       From after school 28 February 2014 to before school 3 March 2014;

   (i)        From after school 6 March 2014 to before school 7 March 2014;

   (j)        From after school 14 March 2014 to before school 17 March 2014; and

   (k)       From after school 27 March 2014 to before school 28 March 2014.

3. That for the purposes of changeovers for the children’s time with the husband other than at school the husband or his nominee from the paternal family collect the children from outside the home at Suburb C and return the children thereto.

4. That both the husband and wife are restrained from being adversely affected by alcohol and from using illicit, illegal or non-prescribed medications during such times as the children are with each of them.

5. That proceedings be adjourned to the Docket Registrar so as to facilitate appropriate directions as to the property aspect of the matter.

6. That proceedings be listed for a first day LAT trial as to parenting no later than 28 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zerez & Cervantes 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 PARRAMATTA

FILE NUMBER: PAC 723  of 2013

Ms Zerez

Applicant

And

Mr Cervantes

Respondent

REASONS FOR JUDGMENT

The Proceedings  

1. The primary proceedings are proceedings seeking orders as to property adjustment and parenting. The applicant de facto wife (“the wife”) in her amended initiating application filed on 19 November 2013 sought orders that in summary provided for:

   a)The payment to her by the respondent de facto husband (“the husband”) of $250,000 and in default a sale of the former matrimonial home at Suburb C together with a superannuation splitting order in her favour of an unquantified amount;

   b)That the two children of the relationship live primarily with her and spend defined periods of time with the respondent husband.

2. In his amended response to the applicant’s amended application the respondent husband sought orders that provided for:

   a)The payment to the wife of the sum of $60,000 and that otherwise each of the parties retain such items of property and personalty as is in their present possession or entitlement;

   b)That the children of the relationship live with him and spend defined periods of time with the applicant wife.

3. On 1 October 2013 the wife filed an application in a case seeking in summary the following orders:

   a)That pending further order the wife be entitled to exclusive occupation of the property at B Street, Suburb C;

   b)That pending further order the husband pay as they fall due and payable all mortgage payments, rates and taxes and other outgoings in relation to the said property; or

   c)In the alternative the wife vacate the Suburb C property and the husband pay by way of spousal maintenance the wife’s rental bond and rent to the sum of $600 per week pending further order;

   d)That the children of the relationship reside with her and spend defined periods of time with the husband;

   e)That there be a non-denigration order made against the husband, that the husband not expose the children to any form of pornographic material, that the husband refrain from consuming alcohol to excess 24 hours prior to his time with the children or whilst the children are in his care and that the husband enrol in and complete a parenting after separation course.

4. The husband filed a response to the wife’s application in a case on 19 November 2013 seeking in summary the following orders:

   a)That the wife vacates the home at Suburb C and that the husband be entitled to occupy that property to the exclusion of the wife;

   b)That the husband pay to the wife by way of early property payment sum of $10,000;

   c)That the husband continued to pay as they fall due and payable mortgage payments, rates and other outgoings in respect to the Suburb C property;

   d)That the children of the relationship live with the husband and spend defined periods of time with the wife;

   e)That the that the wife not consume alcohol or illicit drugs 24 hours prior to or during her time with the children, that the wife undertake urinalysis testing at least once each month pending further order and that the mother undertake a specified parenting after separation course.

Background

1. The wife is presently aged 48 and does not work. She has not worked since 2001 and until the parties’ separation was the primary carer for the children whilst the husband engaged in full-time employment. The wife is presently in receipt of Centrelink benefits in the sum of $370 per week in addition to which the husband pays $167 per week by way of child support.

2. The husband is presently aged 41 years of age and is in full-time employment as a shift coordinator on a rotating shift basis. The husband works on a four day on four day off basis working either day or night shifts on a 12 hour basis. His income is about $98,000 per annum.

3. The parties commenced cohabitation in February 2000 and separated under the one roof in February 2012.

4. There are two children of the parties’ relationship; D born in 2001 now aged 12 and E born on 2 August 2006 and now aged 7. The children attend Suburb C Primary School with the eldest child to commence at high school in the 2014 academic year.

5. Since the parties’ separation under the one roof in February 2012 they have implemented a shared parenting regime of sorts within the matrimonial home, with the husband occupying the main bedroom and ensuite and the wife occupying the third bedroom and she and the children having the use of the main bathroom in the home. The children have their own room.

The Wife’s Evidence

1. The shared care arrangement the parties implemented for the children works on a four day about basis that was implemented to accommodate the husband’s work roster.

2. On occasions when the husband has been unable to attend to the children because of his work commitments the wife has offered to assist but such assistance has been refused by the husband.

3. The wife expresses concern for the welfare of the children when they are in the husband’s care. She says that he does not allow the children to leave his bedroom for the entire time they are to spend with him except to sleep in their own rooms in the evening. She asserts that in late 2012 he returned home intoxicated after an outing with the children. She further says that the husband will not allow the children to use their toys whilst they are in his care as he does not allow them to leave his room during this period. Until recently the husband has required the children to eat their meals in his bedroom and it has only been are in the last three months that the husband has allowed the children to eat in the kitchen.

4. The wife has observed that the child E has displayed sexualised behaviour. The child has said to him “I’ve seen sex on dad’s TV”. The wife has been sufficiently concerned to arrange for the child to see a counsellor, although there is no evidence before the Court in relation to the course of these attendances.

5. The mother says that when she has not been present at the home the husband has headed into her bedroom and gone through her personal belongings. As a consequence she has placed a lock on her bedroom and bathroom to prevent this happening.

6. In September 2012 the wife’s daughter from her earlier relationship Ms F now aged 25 moved into the matrimonial home as she was pregnant. Ms F and her new son have been set up in the lounge room of the home.

7. The wife says that the children of the relationship relate well to their half-sister and the new baby. Ms F assists the wife with cleaning and maintaining the home and she also mows the lawns and tidies the gardens. She and her mother share the cooking.

8. It appears that the parties are in agreement that the current living arrangements for the children are not suitable nor in their best interests.

9. It is apparent that the parties are in a conflictual relationship to the extent that the wife alleges that the husband has posted photographs of the wife outside the children’s school in circumstances causing the children distress.

10. The wife continues to undertake all of the household duties on a daily basis for the children.

11. The cost for a rental home in the Suburb C area is in the order of about $600 per week. The wife asserts the husband has the support of his father who lives in Suburb G about 30 minutes from Suburb C. The husband’s father has a three-bedroom home and two spare bedrooms.

12. The wife asserts that the husband has re-partnered and he could live with his girlfriend.

13. The wife says that the husband has historically been a marijuana user and alleges that the husband has a drinking problem, on occasions drinking both beer and spirits.

The Husband’s Evidence

1. At the commencement of the relationship the husband introduced vacant land owned by him at Suburb C. A cottage was later built on that property and that cottage is the present matrimonial home.

2. The assets of the parties substantially comprise the home at Suburb C, motor vehicles and superannuation entitlements together with some other items of personalty and money at bank.

3. The husband complains that when the children are to spend time with the wife in the present shared care arrangement they are primarily cared for by Ms F. He further complains that the wife does not assist the children with their homework and that the wife has not assisted the children with their homework reading. The husband’s assertion in this regard is contrary to the child E’s reading book admitted into evidence as Exhibit D that demonstrates the wife’s significant involvement in this regard.

4. The husband says that when he was working he was a “hands-on dad” and assisted the care of the children. He says that he has a loving and close relationship with the children.

5. The husband makes observations as to the deterioration of his relationship with the wife since the parties have been separated under the one roof. There is no doubt that such a circumstance has put significant strain on their interpersonal relationship and their relationships with the children.

6. The husband objected to the wife’s daughter Ms F commencing to reside in the home.  The husband asserts that the mother’s relationship with her daughter Ms F is volatile.

7. The husband acknowledges that he has commenced a new relationship with “Ms H” and he will stay at her home at times when the children are in the wife’s care. He says that his new partner lives in a four-bedroom home with her two daughters and elderly father.

8. The husband makes a number of allegations of conflict between he and the wife and a determination as to those issues will await a final hearing. However it is clear that it is untenable for the parties to remain living in the same premises.

9. The husband makes reference to an alleged incident on 14 November 2013 at the home involving the wife and her adult daughter Ms F. Police records comprising Exhibit C reveal that on that day there was an argument between the wife and Ms F. As a consequence of a call from a neighbour the police attended. The police notes observe “[Ms Zerez] and [Ms F] have a typical mother and daughter relationship. They reside together and usually have a good relationship however at times they will engage in an argument”. There was no reference to any violence or threats nor did the police observe any injuries on either party. Ms F’s new son was observed and he appeared to be in good health. No action was taken by the police.

10. The husband makes allegations as to the wife using drugs such as speed and amphetamines. However he does not disclose with particularity what he alleges to be the source of this information other than an alleged conversation with Ms F.

The Nature of Interim Proceedings

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   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)…

   122.    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.

   123.    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.

The Law

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1)      The objects of this Part are to ensure that the best interests of children are met by:

   (a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)      The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)      parents should agree about the future parenting of their children; and

   (e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

3. 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.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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.

6. The presumption does not apply where:

   a)There are reasonable grounds to believe a 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)]; and

   c)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)].

1. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 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.

2. In Goode (supra); the Full Court, comprised of (Bryant CJ, Finn and Boland JJ), discussed the application of the presumption in section 61DA to interim proceedings at [56]:

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

3. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in    MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

The Presumption

1. The Court is not satisfied that having regard to the considerations set out below that the presumption should apply.

Best Interests of the Child

1. As the Full Court referred in Collu & Rinaldo [2010] FamCAFC 53, as the Court turns to look at the best interests considerations set out in section 60CC, it should firstly consider the additional considerations:

The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in section 60CC (3) of the Act. The relevant considerations are as follows:

   (a)      Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views:

   There is no evidence before the Court as to this factor.

   (b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child):

   The evidence is indicative of the children having a good relationship with both parents but within the context of difficult circumstances within the home and ongoing conflict. These stressors need to be alleviated.

   (c)The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child:

   A consideration of the relevance of this factor awaits a full determination where the Court can make positive findings as to fact in relation to the allegations the parties make one against the other.

   (d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living:

   The likely change in the children’s circumstances arises from the parties’ applications for sole use and occupation of the home. The children have grown up in the home and any significant disruption to their ongoing stability should if possible be avoided.

   This is a significant factor in considering interim orders to be made. The children will move from a situation of having both parents the home to one where the one will be absent from that home. The children are in a settled physical environment where the inference is they feel secure. A substantial dislocation of that environment calls for careful consideration.

   The issue as to a settled environment has been the subject of consideration.

   In Goode (supra) the Full Court of the Family Court said:

   6. To what extent does Cowling continue to apply [in interim parenting proceedings]?

   66. In broader terms, the question that arises is the extent of the impact of the amending Act to the determination of interim applications. Prior to the amendments, it was left to case law to formulate the methodology to be adopted in interim applications. The decision in Cowling was handed down after the 1995 amendments to the Act and followed the earlier decisions Cilento and Cilento (1980) FLC 90-847, Griffiths and Griffiths (1981) FLC 91-064 and Rainer and Rainer (1982) FLC 91-239. The rationale for providing assistance to trial judges in dealing with interim applications is set out by the Full Court in Cowling at page 85,006 in the following passage:

   18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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 would 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.

   69. It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make. However, there are passages in Cowling that do not sit comfortably with the Act as amended. It is the following passage in particular which calls into question the applicability of Cowling to the Act as presently drafted:

   22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

   70. There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a Court is considering making a parenting order.

   71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

   74. We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

   For all of their lives the children have lived in the home with the wife as primary carer. A continuation of that circumstance as to accommodation and as to the wife’s care are significant considerations that weigh in favour of the wife.

   (f) The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs:

   Once again, an assessment of this factor awaits a consideration where the evidence of both parties can be tested.

   (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant:

   This factor is not a significant consideration, save to note that the children are not of tender years and well able to maintain a relationship with the non-resident parent. This is particularly so of the older child.

   (i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents:

   A full assessment as to each of the parties in relation to this factor awaits final hearing and the Court’s ability to make determinations as to fact. However, it is clear that the parties remain in a significantly conflicted relationship and that it is imperative that they engage in post-separation counselling to address that issue. The Court proposes to make an order requiring the parties to enrol in and complete an appropriate parenting program.

   (j) Any family violence involving the child or a member of the child's family:

   Both parties make allegations one against the other. Once again, the truth as to the circumstances of the parties’ relationship awaits a final determination.

   (l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child:

   These are interim proceedings involving parents in significant conflict with the matter to await Court counselling intervention. In such a circumstance, the Court is unable to make orders in the context of these proceedings that are least likely to lead to the institution of further proceedings.

The Primary Considerations: s 60CC(2)

1. 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.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is important for the children to be able to develop relationships which are positive, significant and valuable with both parents. This means a relationship free from parental conflict, with the children able to grow and develop in their relationship with each of his parents without interference or manipulation from the other.

4. This consideration is indicative of orders providing that the children spend significant time with each parent in the absence of conflict. The parties need to be separated.

Section 60CC(2)(b) – need to protect

1. Whilst each of the parties raises some protective concerns in relation to the children’s time with the other the evidence is neither conclusive of, nor supportive of, any foundation for such concerns absent the court ability to determine fact on an interim hearing.

Section 65DAA

1. In light of there being no order for equal shared parental responsibility, the Court is this not required to give consideration to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time.

2. Orders to be made are thus guided by the best interest considerations.

3. The Court has had regard to the considerations set out above and is satisfied that orders should be made that the children reside with the wife and spend time with the husband.

Occupation of the home

1. The nature of the proposed parenting orders to be made and the clear conflict between the parties whilst they remain in a shared occupation of the matrimonial home are clearly indicative of the need for an order that one of the parties have sole use and occupation of the home.

2. Whilst the determination of sole use and occupation should not rest merely on the balance of convenience or hardship considerations in circumstances where there is significant matrimonial conflict such issues may well be determinative.

3. From the nature of the parties’ allegations one against the other it is clear that their continuing occupation of the home particularly as it may impact upon the children renders that circumstance intolerable.

4. It is generally accepted that the Court can have regard are to the means and needs of the parties, the needs of the children, hardship to either party or to the children and the conduct of the parties.

5. In Plowman (1970) 16 FLR 447 the Court also outlined other relevant considerations.

6. The husband is in full-time employment earning about $98,000 per annum. The wife has no prospects of employment in the foreseeable future and proposes to remain as primary carer for the children.

7. The husband has in the short term accommodation available to him at his father’s home which is reasonably proximate to the matrimonial home and the children’s schooling.

8. Neither party, having regard to obligations in relation to the mortgage on the matrimonial home, income tax and child-support, has the ability to fund a rental payments for alternate rented accommodation estimated at about $600 per week.

9. Overall the Court is satisfied that it is appropriate in all circumstances to provide to the wife pending further order sole use and occupation of the matrimonial home and such an order and consequent orders will be made accordingly.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2013.

Associate: 

Date:  20 December 2013