ATTAWAY & BALLOCH

[2019] FCCA 2626

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTAWAY & BALLOCH [2019] FCCA 2626

Catchwords:
FAMILY LAW – Interim parenting – three children – two children living with father and one child living with the mother since 2017 – mother retains child – separation of siblings – allegations of family violence – youngest child to return to live with father in Town A and spend time with the mother in B Region.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Applicant: MS ATTAWAY

Respondent: MR BALLOCH

File Number: NCC 1081 of 2019

Judgment of: Judge Costigan

Hearing date: 28 June 2019

Date of Last Submission: 28 June 2019

Delivered at: Newcastle

Delivered on: 17 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Bates

Solicitors for the Applicant: Derham Houston Lawyers

Solicitors for the Respondent: Mr Haricharan (Agent) Mastronardi Legal Pty Ltd

ORDERS

PENDING FURTHER ORDER:

1. That the Mother return the child [X] born … November 2011 (‘[X]’) to the Father’s care by 3.00pm on Sunday 6 October 2019.

2. The Father be at liberty to re-enrol the child [X] at Town A Public School for the commencement of Term 4.

3. That the children [Z] born … 2005 (‘[Z]’) and [X] born … 2011 (‘[X]’) live with the Father.

4. That the children [Z] and [X] spend time with the Mother:

   (a)For half of the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the Mother have the first half in odd years (including Christmas) and the second half in even years;

   (b)In relation to the child [X] on the third weekend of each month from 11am Saturday to 3pm Sunday; and

   (c)As otherwise agreed between the parties.

5. The ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of nights and the ‘second half’ of the school holiday periods shall commence at 12 noon on the day closest to the midpoint having regard to the total number of nights and shall conclude at 12 noon on the day before the first day of required attendance in the new term.

6. The Mother have telephone communication with the children [Z] and [X] each Tuesday and Thursday between 7.00pm and 7.30pm.

7. That the child [Y] born … 2003 (‘[Y]’) live with the Mother.

8. That the child [Y] spend time with the Father as follows:

   (a)For half the gazetted school holiday period with the parties to agree on which half and in the absence of agreement, the Father have the second half in odd years and the first half in even years (including Christmas).

   (b)As otherwise agreed between the parties.

9. That the Father have telephone communication with the child [Y] each Tuesday and Thursday between 7.00pm and 7.30pm.

10. That changeover take place at the Location C.

11. That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and addresses.

12. That each party keep the other informed of the children’s health and any health issues as well as procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the cases of emergency (with the party in whose care the children are in to inform the other party as soon as possible).

13. That the parties and each of them be restrained from:

    (a)Using illicit substances 12 hours prior to or during any period that the children or any of them are in their care.

    (b)Communicating with the other party about the children’s care welfare development or any changes to the arrangements for the children’s care through the children.

    (c)Denigrating the other party in the presence of the children.

    (d)Discussing the Court proceedings with the children.

14. That both parties be permitted to receive school notices, information, newsletter, school reports, school photographs and to attend all school functions to which parents are normally invited.

15. Within seven days the father file a copy of the child [Z]’s birth certificate.

16. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act1975;

    (b)to profile of the parties

    (c)to assess the parties interactions;

    (d)to assess the children’s developmental and emotional state;

    (e)to assess the relationship of the children to the parties and other significant persons in the children’s household;

    (f)to ascertain the wishes of the children’s unless inappropriate by reason of age or other special circumstance;

    (g)to assess the proposed and actual home environments; and

    (h)to assess the proposals of each party as to the children’s future.

17. The Court requests the said report be released by 5 February 2020.

18. Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

19. If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

20. The matter is adjourned to 17 February 2020 at 9.30am for a directions hearing in the Federal Circuit Court sittings at Newcastle.

IT IS NOTED that publication of this judgment under the pseudonym Attaway & Balloch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1081 of 2019

MS ATTAWAY

Applicant

And

MR BALLOCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the future parenting arrangements for three children. Two children are presently living with the mother on the NSW B Region and they are [Y] born … 2003 (‘[Y]’) and [X] born … 2011 (‘[X]’). The third child [Z] born … 2005 (‘[Z]’)[1] lives with the father in Town A.

   [1] The mother deposes to [Y] date of birth as … 2005.  I will therefore direct the father to file a copy of [Y]’s birth certificate.

Mother’s Proposal

1. The applicant mother is Ms Attaway (‘the mother’).  She sought interim orders as set out in her amended initiating application as follows:

   4.That the children [Y] born on … 2003, [Z] born on … 2005 and [X] born … 2011 live with the mother.

   6.     That the children spend time with the father as follows:

   (a)On the third weekend of each month from Friday evening until Sunday evening.

   (b)For one half of each school holiday period as agreed between the parties and if not agreed the first half in even years and the second half in odd years.

   8.That the children spend one-half of each Christmas school holiday period with each parent as agreed between the parties and if not agreed:

   (a)the first half with the mother in periods starting in an even year and for the second half with the mother in periods starting in an odd year.

   (b)the second half with the father in periods starting in an even year and for the first half with the father in periods starting in an odd year.

   9.That changeover be effected by each party delivering the children to and collecting the children from Location C.

   10.That each party be entitled to contact the children’s schools and to be listed as an authorised contact for each child and to receive emails and correspondence and reports from the school and to be entitled to attend all school functions which parents are normally able to attend and that provision of a copy of these orders to each school be sufficient authority from each parent for implementation of these orders.

   11.That each party be entitled to contact the children’s medical providers and to receive copies of correspondence and reports from such medical providers as may be necessary and that provision of a copy of these orders to such medical providers is sufficient authority from each parent for implementation of these orders.

   12.That each parent as soon as practicable advise the other parent of any serious illness, injury or accident suffered by any child and advise as to any medications that the children are prescribed, or treatments undertaken by the children.

   13.That each party is restrained by injunction from denigrating the other or members of the other’s family in the presence or hearing of the children or to permit the children to stay in the presence of any person denigrating the other or members of the other’s family.

   14.That each party will keep the other informed of their current address, telephone number and email address and advise the other of any changes within 72 hours of such change taking place.

2. At the commencement of the interim hearing Counsel for the mother informed the Court that having had the benefit of reading and considering the Child Inclusive Conference Memorandum the mother did not press her application for the child [Z] to live with her.  

Father’s Proposal

1. The interim orders sought by the father are set out in his response filed 12 April 2019 as follows:

   1.That within 24 hours the Mother return the child [X] born … 2011 to the Father’s care.

   2.That in the event the Mother fails to return and deliver the child in accordance with Order 2 then pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue to the Marshall, Deputy Marshall, all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:-

   2.1to stop and search any vehicle, vessel or aircraft and search the premises or place for the purpose of finding the child;

   2.2.recover the child;

   2.3deliver the child to the father at Town A in the State of New South Wales; and

   2.4to arrest, without warrant, the Mother in the event the Mother again removes or take possession of the child unless permitted under these Orders.

   3.That the children [Z] bon … 2005 and [X] born … 2011 live with the Father.

   4.That the child [Y] born … 2003 live with the Mother.  

   5.That the parties have equal shared parental responsibility for the children.

   6.That the children [Z] and [X] spend time with the Mother:-

   6.1on the third weekend of each month from 11am Saturday to 3pm Sunday;

   6.2for half the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the Mother have the first half in odd years (including Christmas) and the second half in even years and years ending in zero.

   6.3telephone communication each Tuesday and Thursday between 7pm and 7.30pm.

   6.4as otherwise agreed between the parties.

   7.That the child [Y] spend time with the Father as follows:

   7.1for half the Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the Father have the second half in odd years and the first half in even years and years ending in zero (including Christmas).

   7.2telephone communication each Tuesday and Thursday between 7pm and 7.30pm.

   7.3as otherwise agreed between the parties.

   8.That changeover take place at Location C, New South Wales.

   9.That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and addresses.

   10.That each party keep the other informed of the children’s health and any health issues as well as procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the cases of emergency (with the party in whose care the children are in to inform the other party as soon as possible).

   11.That the parties communicate by way of text message and the parties must ensure their communication in all formats, including face to face, complies with the following:-

   11.1the communication must be polite and courteous;

   11.2neither party may use abusive or offensive language including any swear words;

   11.3neither part may make any comment that is insulting or demeaning of the other party or of any person in the other person’s household; and

   11.4the communication must relate to the care, welfare or development of the children including any changes to the arrangements for their care.

   12.That the parties be restrained from communicating with the other party about the children’s care welfare development or any changes to the arrangements for the children’s care through the children. 

   13.That neither party denigrate the other party in the presence of the children.

   14.That neither party discuss the Court proceedings with the children.

   15.That both parties be permitted to receive school notices, information, newsletter, school reports, school photographs and to attend all school functions.

   16.The ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of  nights and the ‘second half’ of the school holiday periods shall commence at 12 non on the day closest to the midpoint having regard to the total number of nights and shall conclude at 12 noon on the day before the first day of required attendance in the new term.

2. As I understand his case, the father is seeking that the children [Z] and [X] live with him and that [Y] remain in the care of the mother in B Region. 

Background Facts

1. I have accepted and taken into account the following background facts in this matter: 

2. The mother is 35 years old.  She lives in D Region with her partner Mr E and the children [Y] and [X]. She is employed as a professional.

3. The father is 40 years old.  He lives in Town A with the child [Z].  The father and his partner Ms F have ‘agreed that, for now, it would be better if we were not living together.’[2]  The father is currently unemployed having been retrenched from his position with G Employer earlier in the year.

   [2] Father’s affidavit filed 12 April 2019 at [11]

4. The parties commenced living together in 2003 and married on … 2006.

5. The parties separated on a final basis in January 2017. Following separation both parents lived in Town A and the children ‘at various stages lived with the father and then with the mother.’[3]

   [3] Child Inclusive Conference Memorandum to Court, page 3

6. In July 2017 the mother moved from Town A to the NSW B Region.

7. In November 2018 the parties attended mediation and entered into a parenting plan whereby [Y] lived with the mother and [Z] and [X] lived with the father. [4]

   [4] Father’s affidavit filed 12 April 2019 at [5]

8. On 5 March 2019 there was an argument between the father and his partner Ms F to which the children were exposed.  The children telephoned the mother and arranged to come and stay with her for a few days.  The following day the mother drove to Town A, collected [Z] and [X] and took them back to B Region to stay with her.

9. On 8 March 2019 the mother informed the father that [X] had requested to stay with her on B Region.

10. On 9 March 2019 the father advised the mother that he did not consent to the mother relocating [X]’s residence.

11. On 10 March 2019 the mother drove [Z] back to Town A and returned her to the care of the father.

12. On 12 March 2019 the mother enrolled [X] at B Region College. Prior to that she was attending Town A Public School.

13. On 8 April 2019 the mother filed her initiating application in the Newcastle Registry of the Federal Circuit Court seeking order for all three children to live with her.

14. On 12 April 2019 the father filed his response seeking a recovery order for the youngest child [X].

15. The matter first came before the Court in a duty list on 23 May 2019 at which time I made orders for the parties to attend a s11F Child Inclusive Conference and listed the matter for interim hearing.

16. On 26 June 2019 the parties and the children attended upon Family Consultant Ms H. Ms H prepared a Child Inclusive Conference Memorandum to Court[5] and under the heading ‘Future Directions’ wrote:

    ·     Whilst the parent’s proposals differ, the one thing that they can agree on is that they believe it is reasonable and practical for the children to travel from their respective homes on the B Region and Town A once a month from around Friday lunchtime to Sunday.  They agreed to meet at Location C and understand that whilst it is not an optimal arrangement to have the children finish school early (because of the distance involved), it is the best arrangement that they can come up with.

    ·     It is evident that [Y] has lived on the B Region for the past two years and is settled at her high school. She is also 16 years old and it is likely that she will choose when and where she wants to spend time with the father and her siblings.

    ·     It is evident that the parent’s proposals differ, in that the father would like [Z] and [X] to live with him and the mother would like all three children to live with her. Quite clearly if the parents are unable to reach consensus about where the children live, then a judicial decision will be required.

    ·     That being said, the family consultant is of the view that [Z] should remain living with the father as she views Town A as her home and does not want to leave her friends behind.  She is at an age where her peers are very important to her, but just as importantly, Town A is the only home she has ever known and it is where she feels most comfortable. Her views of not wanting to live with the mother should be given considerable weight due to her age and life experience.

    ·      [X] on the other hand is torn between wanting to live with both parents and make both parents happy.  Unfortunately, she does not want to be placed in a position where she has to choose between the two people whom she loves the most in the world and so she could not give a definitive answer as to where she would prefer to live, other than to say she would prefer Town A public school where her friends are. Just like [Z], up until March 2019 Town A was the only home that she had ever known.

    [5] Exhibit B

17. At the interim hearing on 28 June 2019 the mother was represented by Derham Houston with Mr Bates of counsel appearing on her behalf. The father was represented by Mastronardi Legal with Mr Haricharan, solicitor appearing as their agent. 

Documents

1. The mother relied on:

   a)Her amended initiating application filed 25 June 2019; and

   b)Her affidavits filed 9 April 2019, 22 May 2019 and 25 June 2019.

2. The mother also tendered and relied upon the following documents:

   (c)Documents produced under subpoena by I Medical Centre – subpoena packet 3 – purple tabs M1 - M9 inclusive (Exhibit C); and

   (d)Documents produced under subpoena by Town A Medical Centre – subpoena packet 1 – purple tabs M1-M4 inclusive (Exhibit D).

3. The father relied on:

   a)His response filed 12 April 2019;

   b)His affidavits filed 12 April 2019 and 20 May 2019; and

   c)Affidavit of Ms F filed 20 May 2019.

4. The father also tendered and relied upon his Case Outline filed 22 May 2019 and Addendum dated 28 June 2019 (Exhibit A).

1. Notwithstanding the parties’ non-compliance with Practice Note No. 2 of 2017, I have read and considered that material together with the Child Inclusive Conference Memorandum prepared by Family Consultant Ms H on 27 June 2019. 

Issues

1. The issues in dispute and requiring determination by this Court at this interim stage are:

   (a)Whether the child [X] should live with the father in Town A or the mother in D Region; and

   (b)Whether the parties should have equal shared parental responsibility for the children.

Legal Principles

1. The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereinafter referred to as “the Act”). Section 65D of the Act is subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.

2. In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.

3. In determining what is in the children’s best interests I must consider the matters set out in s.60CC(2) the ‘primary considerations’ and s.60CC(3) the ‘additional considerations’.

4. There are two primary considerations.  The first is the benefit to the children of having a meaningful relationship with both of their parents and the second is the need to protect a child from physical or psychological harm, or being exposed to abuse, neglect or family violence.  The other thirteen additional considerations I will refer to in the course of these Reasons. 

Primary Considerations

1. There is clearly a very significant benefit for these children in being able to continue to enjoy meaningful relationships with both their parents.  The available evidence establishes that they have been able to maintain those good relationships despite the conflict between their parents and the distance between their households

2. I also have to consider the need to protect the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.  I cannot make any findings about that at this stage given the truncated nature of an interim hearing and the inability to test disputed facts in the absence of cross-examination. It will, however, be a subject of evidence that may well be canvassed at the trial. 

3. The mother raises concerns about family violence in the relationship between the father and Ms F. She does not report family violence in her own relationship with the father, in fact the Family Consultant notes,

   ‘According to the children and the father, the mother was the one who would yell at the father and the father would try to walk away from the mother, but she would follow him. One of the children said that she thought this behaviour was normal because as long as she can remember that is how they have always behaved.’

4. The father and his partner Ms F both deny family violence in their relationship. The father told the Family Consultant that,

   ‘…he and Ms F did have a verbal argument where Ms F kicked the flowerpot on the front veranda and hurt her foot, He said Ms F then came inside and sat down whilst he got an ice pack to treat her foot. He reported that was the extent of the argument’.

5. Ms F says that she is a health professional.  She deposed that neither of the children ‘have ever been exposed to family violence by me, Mr Balloch or in our household…….I am very familiar with what family violence entails…….’[6]

   [6] Affidavit of Ms F filed 20 May 2019 at [6] and [7]

6. Since the incident on 5 March 2019 [Z] has returned to live in the father’s household and notably does not appear to have made any complaint to the Family Consultant in relation to family violence in the father’s household. Also of significance is the father’s evidence is that he and Ms F are no longer living together.

7. At this interim stage I am not satisfied that there is an unacceptable risk to the children of being exposed to family violence in the father’s household.

8. The mother also submits that there are ‘unanswered questions’ in relation to the father’s mental health. The father suffers from chronic disorder for which he is prescribed prescription medication.  As a consequence of this diagnosis the father has made a total and permanent disability claim against his superannuation fund.

9. The father’s medical records produced by I Medical Centre include an entry by Dr J in relation to a consultation with the father on 9 November 2018 in which the father referred to ‘smoking pot’ and having ‘stopped two weeks ago.’[7] The general practitioner noted that the father’s speech was fast but ‘not pressured’.  He wrote:

   ‘Mood is fine.  Affect is congruent, denies Hallucinations. But suddenly commented on airplanes passing might produce chemicals which make his disorder worse. When discussed further, this does not appear to be a hallucination, and he states he did not really mean it.’[8]

   [7] There is also an entry for 19 July 2018 where the father gave a history of using 1 gram of marijuana a day for 20 years - Exhibit C(M4)

   [8] Exhibit C (M3)

10. The father was given a referral to a psychiatrist Dr K and offered a consultation with a social worker.  It appears the former was not acted upon and the later refused. The father told the Family Consultant that there was a time he was ‘over-prescribed’ which caused side effects such as drowsiness but that he now only takes prescription medication.  The Family Consultant made no observations as to the father’s presentative and the mother did not raise with the Family Consultant the father’s mental health as a significant factor in the matter.

11. [Y] reported that at the time of the parent’s separation in 2017 the father tended to use her as his ‘personal counsellor’ which she says upset her and appears to have been a catalyst for her decision to return to live with the mother.

12. Once again, whatever issues the father has with his mental health I cannot be satisfied at this interim stage and on the available evidence that he presents an unacceptable risk to the children.

Additional Considerations

The Views of the Children

1. I have to take into account any views expressed by the children and factors such as their maturity or level of understanding.  The Family Consultant saw all three children on 27 June 2019 and wrote:

   ·     [Y] is 16 years old. She currently attends B Region Collegeand is in year 10. She presented as a very mature, thoughtful adolescent.

   ·     [Z] is currently 13 years old. She attends Town A high school and is in year eight.  She presented as an intelligent, confident adolescent.

   ·     [X] is currently 7 years old. She attended Town A Public School from kindergarten until she came to live with the mother in March 2019. She attends B Region College and is in year two.  She presented as a gregarious, happy child.

2. As previously stated, by the time of the interim hearing the parties had agreed that the issue for determination related only to the child [X].  

3. [X] is reported by the Family Consultant as saying:

   ‘…she misses her friends at Town A public school and would like to return to that school, although she has made a close friend at her current school and is enjoying that school as well. Given a choice, she would prefer to attend Town A public school.’

4. Also of relevance was [Z]’s reported comments of:

   ‘…She said she would love to have [X] back home and feels that Town A is [X]’s home, not B Region. She said she has no issue caring for [X] if the father secures employment at Town A. But she does not want to become a parent to [X] and does not want to do things such as make her lunch for school.’

5. And:

   ‘…she finds it tiring travelling from Town A [to] B Region and vice versa and would prefer not to have to travel one weekend a month. She said she would prefer school holiday time only and continue to Facetime [Y] and the mother when she feels like it.’

6. I accept that evidence and take into account [Z]’s expressed views around travel (which echo those of [Y]) and around spending time with her mother during term time. 

7. [X] on the other hand seems to enjoy spending regular time at both locations and moves seamlessly between residences. She loves both her parents very much and does not want to choose between them.

The Relationship of the Children with Significant Persons

1. The children appear to have close and loving relationships with each of their parents.  The time they wish to spend is consistent with their ages and stages of psycho-social development.

2. The mother submitted that the children have a strained relationship with the father because of the ‘disagreeable communication between the parents.’  This would seem to be the case in relation to [Y][9] but not in relation to the two younger children.

   [9] However, the family consultant noted that on the weekend for [Y]’s 16th birthday ‘the parents were able to negotiate and make their own arrangements for the children to spend time with each other and for the father to spend time with the children.’

3. Both parents report that the children have good relationships with their respective partners.

4. The siblings, [Z] and [X] are closer in age and appear to have a particularly close relationship and of course since separation they have primarily lived together with their father.  [Y] and [X] have lived together with their mother for several months and presumably their relationship has developed over that time.  The father accepts that Julie should continue living with the mother and to spend one half of the school holidays with him. 

5. The paternal grandparents live in Town L and on the father’s evidence they played a significant role in the children’s lives including assisting him with after school pick-ups and having the children for sleep-overs.[10]

   [10] Father’s affidavit filed 12 April 2019 at [35]

Discharge of parental responsibilities - opportunity to participate and obligations to maintain

1. In this case the mother has made a unilateral decision to retain the child [X] in her care. The reasons for so doing will be the subject of further testing at a final hearing.

2. The father has, as I have previously indicated, had the two younger children in his consistent, full-time care since the mother moved to the NSW B Region in July 2017. That does not appear to be the subject of challenge by the mother. I note that the father makes a child support related complaint about the mother which will require further investigation.

3. I also see that the children have different surnames. It was not a matter addressed by either parties in their material or raised by the Family Consultant and I do not know if there is any significance to [Y] having the mother’s name and [Z] and [X] having the father’s name. 

Practical difficulty issues

1. The father continues to live in Town A and the mother lives in D Region. There is a distance of approximately 425 kilometres (4 ¾ hours driving time)[11] between the parties’ residences.

   [11] Google maps

Effect of Any Change in the Children’s Circumstances

1. The father seeks a return to what might be described as the ‘status quo’ that existed between the parties up until March 2019, and as reflected in the parenting plan. The mother says that the children have been on the B Region for several months now and the evidence supports that they have settled. What the mother seeks to do is present the Court with a fait accompli, saying that [X] is in school and engaged in extra-curricular activities and therefore the arrangements she has put in place should not be disturbed.

2. I disagree.  The evidence of the Family Consultant is that [X] remains torn, that she has made one special friend at her new school but misses her friends in Town A.

3. I am urged by the father and in my view it is highly relevant, that I look at the effect of any move on the sibling relationships. The sibling relationships are likely to last longer than any other relationship in the children’s lifetime and they play a vital role in the lives of the families.

4. Regardless, any change needs to be appropriately handled in the best interests of the children. That said, any prolonged delay in the time that a child lives with, or spends time with, a parent may cause problems or difficulties for the child, when and if that time is ultimately resumed. I have to take into account the effect of any change in the children’s circumstances.  In this case I am satisfied that if I am to move [X] back to her father it occur at a time when the transition is easiest and in my view that would be at the conclusion of a school term. 

Capacity and Attitude to Parenthood

1. It is concerning for the Court that the mother, unilaterally, retained [X] in her care and removed her from an arrangement that she had consented to in November 2017. The father says that he did not consent to any permanent move. While I cannot make any findings I am concerned about the mother’s capacity to facilitate and encourage a close and continuing relationship between [X] and the father.

2. It seems that on the limited evidence before me both parties are probably capable of meeting the children's needs.  The mother says that the Court should be cautious of returning [X] to the care of the father in view of the family violence occurring in the father’s household and his mental health issues.  It is, as the father submits, inconsistent for the mother to suggest that she is fearful for [X] but not for [Z].[12]

   [12] Exhibit A at [9]

3. In the time that the children have lived with the father, he appears to have facilitated their relationship with the mother and is it likely that he will continue to do so. 

Order least likely to lead to the institution of further proceedings in relation to the child

1. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there will be a time period of at some six to twelve months before the matter is decided on a final basis.

Parental Responsibility

1. The Court is required to apply a rebuttable presumption that it is in the best interests of the children for their parents to be allocated equal shared parental responsibility.

2. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, or if the Court considers that it would not be appropriate for the presumption to be applied when making interim orders. The presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

3. The father seeks an order for equal shared parental responsibility and the mother seeks no order. I do not think it appropriate at this interim stage to apply the presumption of equal shared parental responsibility.  The ultimate decision in relation to the allocation of parental responsibility for the children will be made when final parenting orders are made.

4. In those circumstances, the Court is not obliged to consider “equal time” and “substantial and significant time” arrangements for the children.

Discussion

1. [Y] wishes to live with her mother.  She has been living with her mother since July 2017 and given her age, her wishes have to be respected.  Both parents acknowledge this.

2. [Z] wishes to live with her father.  Although slightly younger than her sister, her reasons are well-considered and long-standing.  Once again her views cannot be ignored and both parents acknowledge this.

3. [X]’s views are ambivalent as reported by the Family Consultant on 27 June 2019. She loves both parents and her views are developmentally appropriate expressing a preference for fairness around the parenting arrangements, she clearly wants to please both her parents.

4. [Y] and [X]’s relationship was not the subject of comment by the Family Consultant nor by the parties.  They attend the same school but there is a 9 year age difference.  [Y] is in Year 10 and [X] in Year 2.

5. [Z] does not want to live as part of a sibling unit with the mother. It would seem she has become accustomed to living with her father and sister and spending time with her mother and sister and prefers that arrangement.

6. [Z] is fond of [X] and they are closer in age. They enjoy each other’s company and have lived as a sibling unit in the father’s household since 2017. [X] had not lived with the mother and her partner in D Region until March this year.  It represented a significant change in her life and despite the three months that had elapsed by the time of the Child Inclusive Conference she was still missing her friends and school in Town A.

7. If [X] returns to Town A she will also return to the pre March 2019 pattern of spending school holiday time and a few weekends mid-term with the mother in D Region. This would enable [X] to maintain her relationship with [Y] and her mother.

8. I am satisfied that it is in [X]’s best interests to return to Town A to live with the father and [Z]. She will be returning to the area where she grew up and attended school. 

9. The distances between the households involve the children in significant travel which [Z] and [Y] have said they find burdensome. They have both said that they wish to limit the time with their non-residential parent to school holidays. This is both understandable and developmentally appropriate. In adolescence, children seek greater independence and their peer relationships become increasingly important.

Conclusion

1. Having regard to the respective applications and submissions and in light of the available evidence and the relevant statutory provisions, the Court is satisfied to determine as follows:

2. Until further order, [Y] should remain living with the mother, [Z] should remain living with the father and [X] should return to live with the father for the commencement of Term 4 at Town A Public School.

3. The Court is very mindful of the fact that [X] has been living on the B Region for some six months and has now attended a local school for two or three terms.  Unfortunately, that is the reality of the mother's decision to retain.

4. As to the ‘spend time with’ arrangements, the Court is satisfied that all three children should be together for the term and Christmas school holidays in the care of each parent.  In addition, [X] will spend time with the mother on the third weekend of each month.

5. The evidence of the parties is that the girls communicate freely with each other via telephone and SKYPE and hopefully that will continue.

6. As to changeovers, the parties agree that the travel should be shared and the venue should be Location C

7. Both parties seek and the Court will make orders in relation to exchange of medical and education information and a number of restraints concerning non-denigration and involving the children in the litigation.   As both parties acknowledge a history of substance misuse there will also be an order restraining such behaviour.

8. Finally there will be orders for a family report and the matter can return for mention on a date to be fixed following its release.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of Judge Costigan

Date:  17 September 2019