Sunday, 1 November 2009

Family Court case: parents made to keep nesting in the home

In the recent Family Court case of Byrd and Byrd, Judicial Registrar Loughnan had to consider an application by the wife for sole use or exclusive occupation of the home, when the home was shortly to be sold, and for several months the husband and wife had moved in and out of the home in rotation, so as to enable the child to remain there. In other words,the wife wanted to chuck the husband out of the home, when all they had done was to the contrary.

The wife was unsuccessful. The Judicial Registrar stated:

The court has power to make an order for exclusive occupation. The power is
found in section
It gives the court power to make an order that is proper. Examples are
given of the sort of order that might be made under section
and specific mention is made of orders in relation to the use of the
home. Generally, an order will be made where it is not reasonable, sensible or
practicable for the parties to live together.
There is a sense in which this
is a silly application, because the house in question is being sold soon and the
children will be moved out of their bedrooms in any event. However, I do not
know that the house will sell. The property market is not as reliable as it once
was and it may be that the parties will not be able to sell it for a period. So
there is the potential for the issues that the parties have raised to drag on.
The problem in relation to the children is that the parties do not agree
about what the children want. In March, despite all of the problems that the
parties had experienced in the past, they thought it was in the best interests
of the children for there to be a nesting arrangement, with the adults coming
and going and the children staying in the former matrimonial home. The wishes of
the children are particularly important in a case where there is a 16 year old
child, a 14 year old child and an 11 year old child....
On one view, as I
say, this could be a trivial issue. On the other hand, it was so important to
the parties in March that they made this rather unusual arrangement.
is no way of me identifying what these children want in a timeframe that makes
sense of the timing of an auction listed in the middle of this month. Their
views could be obtained by having the children see a Family Consultant in the
child responsive model or I could appoint a lawyer for the children. Either
process takes a month or so.
Without being able to make a finding of fact on
a disputed issue I am obliged in a case like this, to take the common ground
position. The common ground position is that the parties felt that the children
should stay in the home and the adults should come and go. The parties have
probably interfered with each other’s private goods and personal possessions, in
the time since the orders were made. That is a real problem in a case like this
because there is a risk that privileged material will be accessed. There is also
the potential for the children to be embarrassed by bad behaviour by the
The evidence suggests that each of the parties has interfered with
the personal possessions of the other. We are only in this position because,
unusually, parties who have decided to live separately and apart forever are
sharing a house for the time being. They are doing that not because they need
to, but because they decided that they both want to have a meaningful
relationship with their children and it is more important that their children
have access to their own rooms for a period than it is for the parents to get on
with their lives.
In the circumstances it seems to me that there should be
no interference with the arrangements the parties put in place in March.
doubt that the children would get away with behaviour that the parents have
described in their affidavits. It cannot be very edifying. But these are not
people who anybody suggests are lacking in sophistication or suffer a defect of
reason or do not understand how to properly behave. These are people of some
standing, obviously intelligent people, obviously loving parents, and it seems
to me that they can be expected to comply with their obligations.
As has
been said on behalf of the husband, if it was so intolerable to the mother, then
the obvious remedy was to get the children straight out of the home, and that
has not been done. That is a good thing. The problems are not at a point where
it is more important the children be safely away from the incidents of bad
behaviour than it is that they have use of their own home, own bedrooms. That is
good and, hopefully, that reflects a judgment that this is really a matter of
preference rather than a matter of necessity.
As a general proposition,
children can take responsibility for bad behaviour by their parents. They think
they are responsible, especially younger children. The parties need to redouble
their efforts to make sure that is not the case. They will have been told that;
they must know it. Hopefully, we can limp through to the settlement of the sale.
If not, if either of the parties thinks that it is more important that the
children be away from the conflict than it is that they stay for a few weeks in
their bedrooms, then by all means that parent can make arrangements for them to
be somewhere else.
The advantage of the existing arrangement continuing is
to avoid an additional move. The inference one draws from the mother’s
application is that C might not move. In those circumstances, an order excluding
the husband may interfere with his relationship with C and that might not be
what she wants.
When the power of the state is to be exercised to do
so serious a thing as to exclude somebody from a property they are entitled to
be in, the Court needs to be reasonably comfortable that any change will be for
the better.
I cannot be comfortable about my obligations to the
children in these circumstances.
In relation to the application about the
personal items. I will make an order for the return of items about which there
is no dispute. I am told that there are some things that are acknowledged to be
in the possession of one of the parties, that are sought by the other and the
first mentioned party does not mind returning those items.

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