Barclay and Carew
[2010] FMCAfam 574
•22 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARCLAY & CAREW | [2010] FMCAfam 574 |
| FAMILY LAW – Parenting issues – interim parenting orders – where mother and children moved away – whether children should return. |
| Family Law Act 1975, ss.60C, 61DA(3) |
| Campbell v Spalding (unrep., Full Court of the Family Court of Australia, 15 May, 1998) |
| Applicant: | MR BARCLAY |
| Respondent: | MS CAREW |
| File Number: | ROC 134 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Rockhampton |
| Delivered on: | 22 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr M.S. Polley |
| Solicitors for the Applicant: | Chris Trevor & Associates |
| Counsel for the Respondent: | Mr T. Savu |
| Solicitors for the Respondent: | Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd |
ORDERS UNTIL FURTHER ORDER
That the children, [W] born [in] 2001, [X] born [in] 2006, [Y] born [in] 2007 and [Z] born [in] 2009 (“the children”) be relocated to reside in [G] in the State of Queensland no later than 6 May 2010.
That, in the event the Mother chooses to relocate to [G] with the children, then the children are to live with the Mother.
That, in the event the Mother chooses not to relocate to [G] with the children, then the children are to live with the Father.
That the parties attend mediation in relation to the time that the other parent will spend with the children no later than 6 May 2010.
That the parties be at liberty to file and serve any further material they intend to rely upon and make further argument about how much time the other parent should be spending with the children.
That this matter be adjourned to 9.30 am on 12 May 2010 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Barclay & Carew is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ROCKHAMPTON |
ROC 134 of 2010
| MR BARCLAY |
Applicant
And
| MS CAREW |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for interim parenting orders in respect of four children, [W], [X], [Y] and [Z]. [W] is nine, [X] is four, [Y] is three and [Z] is four months of age. The parties had a relationship which extended over a number of years but most recently ended in December of last year.
At that time the parties were living in [G], or [C] which is near [G], in a rental house that had been rented by the father. He sets out in his affidavit filed on 20 April, 2010 what he says is the history of the parties’ relationship, their separations and reconciliations, where it was that they lived and the timing of relevant events. The mother has in her affidavit of 21 April, 2010 responded to the father’s affidavit and has made it very clear where it is that she takes issue with what the father alleges.
And so, on an analysis of the two positions there are a great many number of disputes between them about the facts - about when they lived in particular places, where they lived at particular points in time, when the children were born having regard to where they were living, when separations occurred and when reconciliations occurred.
There does not seem to be any tremendous disagreement between them, however, with these facts: namely, that in or about November 2009 or towards the end of 2009 the accommodation in which the mother was then living with the children in [G] became unavailable for reasons associated with the payment of rent. Following the mother being asked to leave that property she and the father decided to move in together again (the father says to provide accommodation for her and the children) - the mother does not really cavil with that proposition. The father says it was a reconciliation. I am not sure whether the mother cavils with that proposition or not having regard to the way in which her affidavit is drawn, but what is clear is that they did move in together at a property described as [address omitted], [C]. From there the mother left on 8 December and went to far north Queensland to [I]. She told the father, according to the father’s evidence, that she was going to visit her mother for a week in [I], but as things have turned out she has never returned.
As to the mother’s allegation that she told the father that she was “leaving for my mother’s place in [I] with the children” she does not suggest in her material that it was for a visit, but nor does she suggest that it was something that she had discussed with the father or had his consent to do. Since that time the father says that he has had difficulty in establishing contact with the children. He seemingly has had no difficulty establishing contact with the mother. She apparently has a mobile telephone and the parties have spoken and communicated by SMS.
There is a dispute in the evidence about how much time and on how many occasions they have had telephone time with the father, but even on the mother’s case it has not been very much. She says this:
I disagree with the allegations contained in paragraph 21 because he has been speaking to the children at least twice a week since December, January, February, until I was served with my court documents in March in relation to this matter.
She does not say which children have been speaking on the phone and having regard to their ages that is an important issue because insofar as [Z] is concerned telephone communication is, of course, inappropriate. One might possibly say the same about [Y], although [X] and [W] may be of an age where telephone communication is likely to be meaningful to them. Since the mother left in December, 2009 the parties agree that there has been no time between these children on a face-to-face basis between the father and the mother - organised by the father or the mother. The father does not know where the mother is living in [T] (apparently) and until the delivery of her material today or late yesterday her address and the address of the children was unknown.
This application needs to be decided according to the principles set out in the Family Law Act. It is an interim parenting application, so I can not make any findings of fact, where the facts are in dispute, just on the affidavits. I have done by best to isolate the few non-contentious facts in this matter. Having regard to those non-contentious facts I must attempt some sort of cursory examination of the relevant s.60CC factors and come to a conclusion about what orders might be in the best interests of these children on an interim basis.
I should say this. The amount of time and the nature of the time spent by the father with the children in the past is an issue on the affidavits, but even on the mother’s case she seems to suggest that the father in the past has spent some reasonable time with these children. The evidence of both parties is really nothing more than general assertion. It is hard to get any particularity or specificity to any of the allegations in respect of the times that these children spent with the father. I was taken in particular to paragraphs 8, 9 and 10 of the father’s affidavit as indicative of him spending time with these children. Paragraph 8 talks about the children - and at that stage it was [W], [X] and [Y] - spending time with the father whilst the mother was working night shifts and he says that during the evenings when she was working he would be responsible for caring for the boys.
He says that that employment went for about five and a half months, but he doesn’t say how many nights per week she worked, although it was only casual employment. The next paragraph suggests that in April, 2009 the mother and the father separated. He left the home and obtained rental accommodation and the children remained with the mother. He says:
However, I continued to spend regular time with them. I would spend time with the children when I was rostered off from my employment.
I am not sure what that means, whether it was day time only, for a couple of hours each day, for the whole of the time he was rostered off from his employment. It is unclear. In paragraph 10 he says that in June, 2009 the mother was put in hospital for seven to 10 days as a result of “scares” associated with her pregnancy with [Z] and during that period he says he took leave from work and cared for the boys. There are some other more generalised statements in his affidavit about spending time with the children and, in particular, he says after [Z]’s birth he spent time with her as well, but it is no better than that really.
I can not make a decision in this case about whether the presumption of equal shared parental responsibility should be applied in this case. There is no evidence before me that the presumption is rebutted by reason of family violence but having regard to what is set out in s.61DA(3) it is not appropriate, I think, in the circumstances of this case given the state in which the evidence stands to come to a conclusion that the presumption ought to be applied. I, therefore, decline to apply the presumption set out in s.61DA(1) of the Family Law Act that it is in the best interests of these children for there to be an order for equal shared parental responsibility.
The father’s proposal is that the children return to live in [G] and live with him during his rostered days off from his employment. He works what seems to be an 18 day roster and he has nine days on and nine days off. He says that the children should live the rest of the time with the mother. His roster is attached to his affidavit. Sometimes the days that he has off are in consecutive blocks of three or four days at a stretch, so if one was to make the order that he seeks it seems that the children would spend three or four days with him and then some time with the mother and then another three or four days, perhaps up to five on occasions, with him and then some time with the mother.
It is impossible to tell from the evidence whether that sort of arrangement would suit these children. There is a large age disparity between them. I can confidently say, I think, that that sort of arrangement would not suit [Z]. She is only four months of age and to have her away from any one of the parents or any particular parent for the stretch of the time that the father’s proposal suggests pays no regard to the developmental needs of a child of that age. It might be that [W] can cope with it, depending upon the school he was going to and where the parties lived. [X] and [Y] are not yet at school. But notwithstanding that and notwithstanding their ages, they may cope with it, but one really does not know. The children are used to being cared for by their mother and on the evidence she is what some people describe as the primary caregiver.
Both parties seem to accept the notion that the children will benefit from a meaningful relationship with each of them. No party suggested that that was not so.
Nor does either party suggest that the second of the primary considerations set out in section 60CC is important. There does not seem to be a real suggestion that there is a need to protect these children from psychological or physical harm by reason of being exposed to abuse, neglect or family violence.
The wishes of the children were not in issue on the evidence.
The nature and extent of the relationship of the children with each of their parents is not clear from the affidavit material, but I can draw some inferences, I think. The first inference is that the children are probably used to being cared for by their mother and probably are attached to her. They probably also have a reasonable relationship with their father given the evidence of both of the parties that from time to time, at least, they have been in his care when the mother has been otherwise indisposed, although there are some disputes about that, so I need to be careful. There is no evidence before me about the effect of any of these changes proposed by the father on the children and so I can make no findings about that.
The mother makes no proposal at all for the children to spend any time at all with the father and so I can not gauge, or even attempt to gauge, what effect her proposals may have on the children’s relationships with each of the parents.
There is some evidence from which I can draw some inferences about the mother’s attitude towards the children’s relationship with their father as their parent. Her decision to leave [G] in circumstances described in her affidavit, namely, without discussion with the father of any substance and certainly without his consent and without making any arrangements whatsoever about the children maintaining their relationship with their father, speaks to the effect that she has no real understanding of the importance to the children of a proper relationship with their father.
It also demonstrates that she is not in a position to properly facilitate, foster or encourage that relationship between them and their father. Whilst telephone contact might be something of a short-term solution for the children maintaining contact with the father it would only, as I have already indicated, be relevant in respect of [W] and [X], maybe [Y], but certainly not [Z] and so the mother’s decision to relocate to north Queensland did not take [Z]’s entitlements to have a relationship with, and be cared for by, her father into account.
I can make no positive findings one way or the other about the capacity of each of these parties to properly care for these children’s emotional and intellectual needs. I can draw the same sorts of inferences I have just spoken about, about the mother’s capacity to provide for the children’s emotional needs insofar as their relationship with their father is concerned, but that is about it.
Apart from the matters already remarked upon by me, the evidence does not permit of any findings about the way in which the children were cared for when the parties were together, although it is of some significance to note that neither party makes much of a complaint against the other one about their ability to care for the children. The mother does claim that the father, from time to time, spent most of his time on the couch drinking, but even so there are concessions by her that the children spent time with him from time to time.
It is difficult in this case to get any real sense of what shape the ultimate dispute in this case might take because the mother has not told the court what it is that she wants the court to order on a final basis, or even on an interim basis, other than to dismiss the father’s application. But notwithstanding that it seems to me that I should proceed to determine this interim application today.
The mother says that things will become clearer if she is permitted to participate in a mediation. She has had that opportunity. The circumstances are described in her affidavit, but even if she was afforded a further opportunity to attend the mediation and participate her prior conduct - that is in relocating without consent and without making arrangements for these children to spend any positive time with their father on a face-to-face basis, indeed not even having a plan about that - is reason to be thoroughly pessimistic about the outcome of any mediation.
It is necessary to record a statement of principle set out by Warnick J in Campbell v Spalding (unrep. Full Court 15 May, 1998). The principle still stands. It has been applied by subsequent Full Courts. In Campbell v Spalding, Warnick J said this:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a court without an impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what vehicle they had been immediately beforehand.
The mother’s actions in this case represent a situation of recent development which provides an impediment to a proper assessment of the nature and extent of a relationship between these children and their father prior to exercising any discretion the court might have to change those arrangements. The matter is more acute because of the age of [Z]. There is a body of learning in this court, although there is no evidence before me about this, to the effect that for children of [Z]’s age it is much better for her to have shorter periods of more frequent contact with the parent with whom she does not ordinary live than longer periods of less frequent contact.
Put shortly, [Z] needs to be exposed to her father and have contact with him regularly and frequently so that she has the opportunity to commence to form an attachment to him. That can not possibly happen while the parties apart live the distance that they do.
For those reasons the mother ought to return the children to [G] to live there either with her if she chooses to return or otherwise with the father. I do not know what arrangements the mother proposes for the children if she was to return to [G]. She doesn’t say. And, as I have already remarked, the father’s proposals do not take account of the differences in needs that these children have.
For that reason the only order that I propose to make now is that the children return to reside in [G] no more than 14 days from today’s date. And in the event that the mother chooses to change her residence with them they should live with her and in the event that she chooses not to move to [G] or is unable to do so within the next 14 days the children should live with the father. The arrangements for these children between the mother and the father in terms of how much time they will spend with each other can be the subject of a mediation between the parties to be held within the next 14 days.
I will then mention the matter in three weeks time. If there is an agreement between the parties about the time these children will spend with each of their parents on an interim basis it can be finalised by an order and the matter can be moved forward. If not, the parties are at liberty to file any further material on which they intend to rely and make further argument about how much time these children should spend with each of their parents once they have recommenced living in [G].
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 7 June 2010
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