Asquith and Garner (No 2)

[2019] FamCA 824

FAMILY COURT OF AUSTRALIA

ASQUITH & GARNER (NO. 2) [2019] FamCA 824

FAMILY LAW – CHILDREN – Interim parenting orders made in the best interests of the children – matter set down for Final Hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Asquith

RESPONDENT: Mr Garner

FILE NUMBER: BRC 11166 of 2019

DATE DELIVERED: 17 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 17 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr R Cameron

COUNSEL FOR THE RESPONDENT: Ms D Firth

SOLICITOR FOR THE RESPONDENT: McNamara & Associates

INDEPENDENT CHILDREN’S LAWYER:

Ms E Fairon

Life Law Solutions

Orders

Living arrangements

1. That the children, X born … 2012 and Y born … 2014 (“the children”) live with the parents in each week as follows:

   (a)       With the mother from after school Monday to before school Friday;

   (b)With the father from after school Friday to before school Monday for every three (3) out of four (4) weekends;

   (c)With the mother on the fourth weekend out of every four (4) week cycle; and

   (d)While the child Y is not attending formal schooling, the child Y shall spend time with the father each Wednesday from 9.00am to 4.00pm, with changeovers to occur at the mother’s residence.

2. That during school holiday periods the children shall spend time with the parents on a week-about basis with changeover occurring at 2.00pm each Friday commencing with the father from the Friday at the conclusion of the last week of term.

3. That following school holiday periods the time that the children spend with the father pursuant to Order 1(b) above shall recommence as follows:

   (a)Where the children have spent time with the father in the week preceding the return to school until 2.00pm on the Friday, the weekend time shall commence on the first weekend following commencement of school; and

   (b)Where the children have spent time with the mother in the week preceding the return to school until 2.00pm on the Friday, the children shall remain with the mother for the weekend time, and thereafter the weekend time with the father shall commence on the first weekend following the commencement of school.

4. That for Christmas the children shall spend time with the father from 12 noon Christmas Eve to 2.00pm Christmas Day and with the mother from 2.00pm Christmas Day until 5.00pm Boxing Day.

5. That the children communicate with the parent they are not spending time with during the week each Tuesday and Thursday between 6.00pm and 6.30pm, with the parent not spending time with the children to facilitate the call to the other parent with such calls taking place via Skype or such other video call facility.

6. That unless otherwise agreed or ordered, changeovers which do not occur at the children’s school shall occur at McDonalds, Suburb F.

School enrolments

1. That the parents forthwith sign all documents as are necessary to facilitate the enrolment of both children at the Primary School G, including as required an enrolment for Y to commence prep school in 2020, with X’s enrolment to commence on Monday, 21 October 2019 if the school can facilitate those arrangements.

Restraints and injunctions

1. That on a without admissions basis:

   (a)the parents shall not physically discipline either of the children;

   (b)the parents be restrained and an injunction issue restraining the parents from discussing these parenting proceedings with or in presence of the children; and

   (c)the parents shall not make hurtful or denigrating remarks about the other parent’s household or lifestyle, their family or other parent’s family to or in the presence of the children.

2. That during the time that the children are spending time with each of the parents, that parent shall refrain from:

   (a)consuming alcohol over the legal limit allowed to drive a motor vehicle;

   (b)consuming illicit substances; and

   (c)smoking in the presence of vicinity of the children.

3. That the interim spouse maintenance application be adjourned to 9.30am on 22 October 2019 for oral submissions, with the personal appearances of the mother and the father excused.

4. That these proceedings be adjourned for Case Management Hearing and trial directions at 9.30am on 20 April 2020 in the Family Court of Australia at Brisbane.

5. That the parties’ legal representatives have leave to appear by telephone on 20 April 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone … (toll free) by 9.25am on 20 April 2020;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

6. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 20 May 2020 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Asquith & Garner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11166 of 2019

Ms Asquith

Applicant

And

Mr Garner

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. For the reasons which I published on 3 October 2019, these two, I think aptly described, delightful children, X, who is now seven, and Y, who is soon to turn five, have been living with the father pending further evidence being obtained.  The evidence which I now have available to me, which I did not have available on 2 October, include a report by a Family Consultant, Ms C, of a Child Inclusive Conference which took place on 9 October 2019.

2. The report does not indicate a preference having been determined by the report writer for where the children live, but rather she opines that it is in the children’s best interests to have a primary place of residence during the week (Monday to Friday afternoon) and spend every weekend with the non-resident parent.  I have read the report and, noting the limited opportunity a Family Consultant has through that Child Inclusive Conference, it is still of some assistance to me.  At the very least, it establishes that the children have been happy in the care of their father.  X in particular has a desire to ensure that his relationship with his father is preserved.

3. It seems that, although hard to say when, the children have been exposed to views expressed by adults.  I am not suggesting or finding that the parents are seeking to influence the children or get them on their side of the argument, but rather X is a bright little boy who is aware of what has occurred, and how could he not be?  I have further evidence from the mother confirming her immigration status is such that she can remain in Australia now until early … 2020, and that the visa she has would not allow her to work.

4. The mother’s evidence, in her updated Affidavit filed 15 October 2019, seeks support to be able to enrol X at the Primary School G, which is approximately 300 metres or a five-minute walk from her current residence.  Consistent with my direction, the father’s partner, Ms B, filed an Affidavit on 15 October 2019, and I have read it.  I also note that the children seem to have developed a warm, or at least X expresses a warm relationship with Ms B.  There is no doubt, based on the evidence of the father’s partner, that she has been playing a significant role in the care of the children, either just as a support of the father or, if the father has been required to work.  For example, at paragraph 30, she says, in the first month when the children came back, she and Mr Garner did not work at all.  He spent almost every day with X and Y.  He said he wanted to rebuild his relationship with the children.

5. She does not say what has happened, I think, after that first month, but my view is it is likely the father has flexibly returned to work where he can, comfortable that the children have a good relationship with Ms B.  I also note, of course, that Ms B works from home; speaks Maltese, which, in respect of the youngest child whose first language is Maltese, would be important, and does not express any particular concerns about the mother in her Affidavit.  I now have the benefit of, and for which I appreciate Legal Aid’s support, the appointment of an experienced Independent Children’s Lawyer (“ICL”), Ms Fairon.

6. Ms Fairon has provided to the Court a minute of order, which I mark Exhibit 1 today.  For the reasons she articulated, she supports an interim order that the children live with the mother on an interim basis, pending a trial.  We have discussed when a trial might take place and, for the reasons I have identified in my exchange with Counsel, Mr Cameron and Ms Firth today, I propose to list this matter for three days in May.  Prior to that, the ICL’s preferred report writer, Mr E, an experienced social worker, will prepare a family report with interviews able to be secured in mid-March 2020.

7. I would be confident that report would be available by early to mid-April 2020.  In my view, bearing in mind the history of this matter set out more fully in my earlier reasons, a trial not before six months would be in the best interests of the children, so as to allow the children to rebuild their relationship with their father.  I say “rebuild” because, although it is clear from all the evidence that X had a relationship with his father, which he has enjoyed rebuilding, there is at least little evidence but, I think, logically, Y had very little opportunity to spend time with her father before she moved to Malta with the mother in December 2016.

8. Y’s first language is Maltese, and she needs time, for the Court to even fully contemplate the mother’s ultimate substantive application for relocation with the children back to Malta, and a chance to develop a connection with her dad.  The current evidence persuades me that, on an interim basis, the children should live with the mother for these reasons:

   a)Even though the mother had, by her own actions, removed the children, as found by the Maltese Court wrongly, and did not return them to Australia, the reality is that Y’s primary attachment is with the mother.  As Y will not be in a position, because of the mother’s finances, to probably go to day care, in my view her best interests firmly require her to be in the primary care of the mother;

   b)I am not satisfied on the current evidence, nor does the mother, through her submissions today assert, that the father is a risk to these children.  Certainly, some arguments have been raised in the past.  As a result, as Mr Cameron says, there is no reason why the children could not live with the father.  In many ways, X wants more time with the father, but that expressed desire has to be seen in the context of, over the last three years, having less than 20% of his time with his father.  He obviously yearns time with his father, but, at the same time, his needs are to develop his educational abilities within the Australian education system whilst he is here;

   c)Because the mother cannot work, her capacity to transport and do other activities will be very much limited.  During the week, with a school-age child, there is not a significant need to do things.  With a younger child, she will need to occupy that child outside the home more than is necessary for X; and

   c)In my view, the father’s work situation is such that he is less available than the mother, and whilst he says, and I accept on an interim basis, at this stage he has some flexibility in his work, it would be better if he did not have to limit his income and his capacity to develop a business, which he has genuinely been developing for some time, because it provides, at this stage, the only financial security for the family.  However, as I indicated during my discussions, I think there is a benefit to Y in having one on one time with the father each Wednesday.  This will accelerate his opportunity to get to know his daughter and she to get to know him, one on one.  I am not attracted to the need to extend that overnight but note that, when the school holidays start, the parties could have week-about time, which I regard as appropriate, and that will more than necessarily allow the child to spend more overnight time with the father.

9. This is a finely-balanced matter, as Mr Cameron says.  There is no reason why the children could not live with the father.  The reasons why, in my view, it is in their best interests that they live with the mother have been identified.  Having made this decision, it should not be assumed, as I said in the earlier reasons, that this is an indication of what the court may do long-term.  Clearly, this family unit is under pressure, knowing that there will be a trial in about six months’ time about relocation back to Malta.

10. The Court is well aware that there is a significant, substantive issue in dispute.  The mother seeks to return to Malta.  The father does not wish to live in Malta and, therefore, effectively, if the mother chooses to live in Malta, and she may have no choice but to return to Malta considering her immigration status, then the Court will have to consider whether it is in the best interests of the children, if the mother leaves the country, that they live with the father.  The next six months will be a spotlight on the behaviour of these parents in some way, not only their day to day parenting, which, on the face of the material I have, probably is not significantly challenged.  They seem to be capable people, able to parent, although they may parent differently.

11. What might be very important in the long-term analysis of a case like this is the capacity demonstrated now, in Australia, under these orders, of the parents to work cooperatively as co-parents and to support the relationship the children have with the other parent. To that extent, the restraints and injunctions which I earlier made, and which have again been expanded upon at paragraphs 6 and 7 of the independent children’s lawyer’s draft, should be seen by the parents as important, particularly their capacity to engage with their children as a parent and not use this opportunity of one on one time with their children to denigrate or to minimise the importance of the relationship of the other parent with the children. It is appropriate that any airport watch-list order continue, and, as I say, I will not make the order for the family report under s 62G of the Family Law Act 1975 as the ICL is procuring a private report.

12. The father saying he is available to spend time with Y during the next school term, I propose to order that, in addition to the time which I now order for both children, the child Y shall spend each Wednesday with the father, and I am happy for you to talk about when that can be achieved.  Clearly, the father will have to collect the child and return the child, because of the mother’s current situation with no car.

13. The issue with the ICL’s proposed order that has been the subject of further discussion is the variation sought by Counsel for the mother to paragraph 1(b).  In my view, it is important for these children to spend recreational time on a weekend with the mother.  I propose, however, in this case, to order that the children’s time with the father from after school Friday to before school Monday occur in three out of four weekends.  I am even happy if you want to discuss which weekends they are with the mother, so that everyone knows exactly which weekends they are, in case they run across some other event.

14. The ICL has a proposal about Christmas.  On the face of that, my only concern is that 12 noon Christmas Day seems to me to be not a particularly good time to change over for children.  I would prefer it to be 2.00pm on Christmas Day, and it can go from then until 5.00pm Boxing Day.  The father will have Christmas Eve and Christmas morning as a result this Christmas.

15. I will give you a trial date now.  It will be 20, 21 and 22 May 2020, and I will note I will bring it back for a case management hearing and directions for trial at 9.30am on 20 April 2020.

16. Otherwise the orders which appear at the commencement of these Reasons meet the best interests of these children on an interim basis until the trial.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 17 October 2019.

Associate: 

Date:  20 November 2019