Beard and McCarthy

[2007] FamCA 612

FAMILY COURT OF AUSTRALIA

BEARD & MCCARTHY [2007] FamCA 612

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Interim

APPLICANT: MR BEARD

RESPONDENT: MS MCCARTHY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5934 of 2007

DATE DELIVERED: 14 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.J. Cantwell

COUNSEL FOR THE RESPONDENT: Mr G.R. Atkinson

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That pursuant to Section 68L(2) of the Family Law Act 1975 the children, a daughter born the … October, 1995 and a son born the … January, 1999 be separately represented and that Victoria Legal Aid is requested to arrange such representation.

2. That forthwith upon the appointment of the child representative by Victoria

   Legal Aid the child representative file a Notice of Address for service.

3. That within 48 hours of notification of such appointment the lawyers for the respective parties provide to the child representative copies of all relevant documents relied upon.

4. That all extant Applications be adjourned to the Registrars List on the 2^nd August, 2007 at 9.45 a.m.

5. The husband and the wife do all acts and things and execute all necessary documents to arrange for the preparation of a Family Report in respect of the issues of “living with” and “spending time” in relation to the said children and such Report shall be prepared by Mr P and the cost of such Report shall be equally borne by the parties.

6. That until further Order that the husband and the wife have shared parental responsibility for the said children.

7. That until further Order the said children shall live with the husband as follows:-

   (a)from 6.00 p.m. Friday 15^th June, 2007 until 9.00 a.m. on the commencement of school on Monday 25^th June, 2007;

   (b)from 5.00 p.m. Friday 29^th June, 2007 until 1.00 p.m. on Saturday 7^th July, 2007;

   (c)from 5.00 p.m. Friday 20^th July, 2007 until 9.00 a.m. on commencement

   of school on Monday 23^rd July, 2007;

   (c)from 5.00 p.m. 27^th July, 2007 until 9.00 a.m. on commencement of school on Monday 30^th July 2007.

SUBJECT TO PARAGRAPH 9 HEREOF:

1. Until further Order that the said children shall live with wife at all other times.

9. (A)In the event that the wife fails to obtain rental accommodation in the S area for her and the said children and further fails to occupy same by Monday 25^th June, 2007 but has obtained such accommodation by Monday 16^th July, 2007 then the children shall live with the husband as follows:-

(a)from 6.00 p.m. Friday 15^th June, 2007 until 6.00 p.m. on Friday 22^nd June, 2007;

(b)from 9.00 a.m. on commencement of school on Monday 25^th June, 2007 until 3.30 p.m. on the conclusion of school on Friday 29^th June, 2007;

(c)from Saturday 7^th July, 2007 at 1.00 p.m. until 9.00 a.m. on Monday 16^th July, 2007;

(d)from thereon paragraphs 7 (c) and 7 (d) shall apply.

(B)   In such event the said children shall live with the wife at all other times.

1. That the husband shall facilitate the attendance of the said children at the 21^st birthday party of G on the 16^th day of June, 2007.

2. That on Friday 15^th June, 2007 and for such time that the wife lives at B the

   changeover shall occur at M or at school (as appropriate) and upon the wife residing in the S area the changeover shall be at the school or as agreed.

3. That the parties keep each other advised at all times of their:-

   (i)residential addresses;

   (ii)telephone numbers.

4. That pursuant to Section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS CERTIFIED:

1. That pursuant to Rule 19.50 of the Family Law Rules this matter required the attendance of Counsel.

AND THE COURT NOTES:

These Orders are prepared on the basis that it is the absolute intention of the parties that the wife shall be living in the S area by the commencement of the children’s’ third school term.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5934 of 2007

MR BEARD

Applicant

And

MS MCCARTHY

Respondent

REASONS FOR JUDGMENT

BACKGROUND

1. This case is about the interim arrangements for the next seven weeks or so for 11‑year-old daughter and 8-year-old son, in the context of their parents having only just separated a few weeks ago.  The separation occurred when the mother left the former matrimonial home in S and took the children to live more than an hour away in B.  The move has involved the children changing schools after four years at their schools in the S area.  Except yesterday, briefly, after an unsuccessful attempt at mediation, the father has not seen the children since separation.  By way of background, the parties lived together many years on and off in a de facto relationship.  They married on 16 January 1993.  The daughter was born on … October 1995, the son on … January 1999.  On 17 May 2007 the mother moved out of the former matrimonial home with the children.

PROPOSALS

1. It is agreed today that an independent children's lawyer will be appointed and there will be a Family Report.  In the meantime, when the case started today, the parties' respective positions were made very clear.  The father wanted interim residence of the children in the former matrimonial home, for them to resume their schooling in the S area, and for them to see their mother.  Their mother primarily wanted the children to live with her during the week in the B area, to continue attending the school there, to live with their father on weekends and for half the school holidays.

2. I gave an indication earlier today that for the reasons I will articulate, the children should be in the school, in the area and in the community in which they have lived for the last four years, until further information is gathered.  In the circumstances of that indication, I allowed Mr Atkinson for the wife some time to take further instructions from his client.  Although she has not moved from her primary position, she says that if I am against her on that, she proposes first that she and the children should have the use of the former matrimonial home.  He has said, through counsel, that he would not be able to do that because he runs his business from there.  That aspect was not pursued further on behalf of the mother. 

3. She then proposed that she would move back to the S area and rent premises for herself and the children.  The children would finish at the B school tomorrow, and would spend this weekend until Monday with their father.  Next week, she would collect the children from school, drive them back and forth to B for the week.  They would spend the following weekend with the father.  Once the school term finishes on 29 June 2007, the parents would share the holidays, and for the remaining few weeks, the children would spend the weeks with her and the weekends with their father.  On that basis, the husband's submissions were to the effect that the children should not simply spend weekend time with him.

LEGAL PRINCIPLES

1. The relevant legal principles are set out in Part VII of the Family Law Act.  I must follow that legislative pathway in accordance with what was said by the Full Court in Goode and Goode (2006) FamCA 1346, a decision of the Chief Justice and Finn and Boland JJ, delivered on 15 December 2006.  Before setting out the steps in an interim hearing, the Full Court acknowledged the comments of a previous Full Court in Cowling's Case as apposite, but acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the inquiry is necessarily “significantly curtailed” compared to the ultimate hearing. 

2. At paragraph 68 of the judgment, the Full Court said:

   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.

3. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, the Full Court noted (at para 72):

   It can fairly be 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 practical.

4. The Full Court in Goode went on to consider the question of the status quo and said that instead of simply preserving it, the court must follow the structure of the Act as it is.  Although stability derived from a well‑settled arrangement may not ultimately be what the court finds to be in the child's best interests, it is certainly something that the court needs to consider. 

AGREED FACTS

1. What is agreed between the parties is that for four years the family has been living in S.  The home, the children's school and the children's various extracurricular activities are there.  The mother says she feels isolated in that area.  That may be a relevant feature if the proceedings progress, but otherwise it is agreed that the daughter is in Grade 6, the son is in Grade 3.  It is agreed that the mother unilaterally moved them to B, changed their school, and the school in which the daughter had been booked in for year 7; and she took a 12-month lease on premises only last week, full knowing of the proceedings this week.  It is also agreed that she has recently inherited money, so that she could afford to set up premises away from but close to the former matrimonial home.

SECTION 60CC OF THE ACT

1. I am required to consider the various matters in section 60CC of the Family Law Act. Section 60CC(2)(a) deals with the benefit to the children of having a meaningful relationship with both of their parents. It is undisputed in this case that they should have that meaningful relationship. On any view, the wife argues it should occur. It is troubling that it has not occurred in these first few weeks of massive change and upheaval for the children.

2. Section 60CC(2)(b) requires me to consider the need to protect the children from harm. The wife raises the concern about the husband's zeal – she describes it as an “obsession” – with his Jehovah's Witness faith. She says that the children are frightened by it. The husband denies it. That is a matter for further exploration. In the meantime, noting that she is prepared for the children to spend substantial and significant time with their father, it diminishes the prospect of real concern of any immediate psychological harm to them.

3. I have to consider the children's views pursuant to section 60CC(3)(a). Except for what the mother says about it, their views are really not yet known in any objective sense. The father says that he and the children share a close relationship and many shared activities.

4. When I consider each aspect of the nature of the relationship between the parents and the children, I am left with the view that we need to gather the information that is envisaged to make longer-term decisions. 

5. As to the willingness of each parent to facilitate and encourage the children's relationship with the other parent, the mother's recent actions cause me some concern, but in fairness, it needs further exploration before there can be a concluded view.

6. Section 60CC(3)(d) deals with the likely effect of any changes in the children's circumstances. That is one of the most pressing considerations in this case. I am not simply adhering to the status quo in having expressed the view that the children should be back in their familiar area, school and environment. It is a matter of logic that in these very early days - topsy-turvy for everybody involved - that familiarity is likely to be in the children's best interests until a more concluded view can be reached.

7. Section 60CC(3)(e) deals with the practical difficulty and expense of spending time with the parents. The difficulties between B and S are obvious enough and that is why I have formed the view that the children should be in the S area. The mother has said that, although it is not her first choice, if I reach the view that the children should be in that area, she will also move back. In my view, it is in their best interests to have that ready access to both parents and their old school and surroundings.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. There does not seem to be any disagreement today that there will be equal shared parental responsibility at this point.  The question of whether the children will spend equal time with each parent is something that requires the sort of basic information of the Family Report that I am going to set in train today.  There is no doubt though that they will be spending substantial and significant time with each parent. 

CONCLUSION

1. I agree that there should be an Independent Children’s Lawyer appointed, and a Family Report.  I agree the solicitors should have the opportunity to agree on a report writer because that will speed up the process, but the ICL can step in and choose someone if there is no agreement.  The costs of the report should be shared equally.  The adjourned hearing date will be 2 August 2007.  The children should be in the S area.  They should be with their father from tomorrow night so that they finish the school week at the school in the B area.  They should remain with their father until the start of school on 25 June 2007.  That will enable their mother to arrange new accommodation.  Provided she has that accommodation in the S area, the children should live with her during the week of 25 June 2007.  If not, they should remain with their father. 

2. The school holidays should be divided with one week to the father, one week to the mother, and then for the couple of weeks next term, and it is only a couple of weeks before the matter returns to court, the children should be with their mother during the week and with their father from after school on Friday until the start of school Monday, each week.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BEARD & MCCARTHY