BEATON & BEATON

[2020] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEATON & BEATON [2020] FCCA 2048

Catchwords:
FAMILY LAW – Interim parenting – interim relocation.

Legislation:

Family Law Act 1975 (Cth) s.65DAA

Cases cited:

Godfrey & Sanders (2007) 208 FLR 287

Moose & Moose [2008] FamCAFC 108

Applicant: MR BEATON

Respondent: MS BEATON

File Number: SYC 7906 of 2019

Judgment of: Judge Boyle

Hearing date: 2 July 2020

Date of Last Submission: 14 July 2020

Delivered at: Sydney

Delivered on: 14 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Abrams Turner Whelan Family Lawyers

Counsel for the Respondent: Mr Lethbridge SC

Solicitors for the Respondent: De Saxe O’Neill Family Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The matter is listed for mention on 19 November 2020 at 9:30am.

2. The matter is listed into a call over on 23 July 2021 at 9:30am.

3. The parties have equal shared parental responsibility for the children X, born 2015 and Y, born 2018 (hereinafter “the children”).

4. The children shall live with the Mother.

5. From 17 October 2020 or when the border between NSW and Victoria reopens, whichever is the later, the Mother is permitted to change the place of residence of the children to metropolitan Melbourne, Victoria.

6. Until the children move to Melbourne, the children shall spend time with the Father as follows:

   (a)each Thursday from 2:00pm to 5:00pm;

   (b)each Saturday from 9:00am to 6:00pm;

   (c)each alternate Sunday from 9:00am to 6:00pm commencing 16 July 2020; and

   (d)at such other times as agreed between the parties in writing.

7. Following the children’s move to Melbourne, the children shall spend time with the Father, should he reside in Sydney, as follows:

   (a)one weekend each month in Melbourne commencing the first weekend after the children move to Melbourne, from 9:00am to 6:00pm on Saturday and from 9:00am to 6:00pm on Sunday;

   (b)one weekend each month in Sydney to commence on the third weekend after the children move to Melbourne from 9:00am to 6:00pm on Saturday and from 9:00am to 6:00pm on Sunday; and

   (c)that weekend time in Sydney and Melbourne shall increase to 9:00am Saturday to 6:00pm Sunday commencing the first weekend in Melbourne in January 2021.

8. Following the children’s move to Melbourne, the children shall spend time with the Father, should he reside in Melbourne, as follows:

   (a)each Saturday from 9:00am to 6:00pm;

   (b)each alternate Sunday from 9:00am to 6:00pm;

   (c)each Thursday from 2:00pm to 6:00pm; and

   (d)from January 2021:

   (i)each alternate weekend from 9:00am Saturday to 6:00pm Sunday;

   (ii)each alternate Saturday from 9:00am to 6:00pm; and

   (iii)each Thursday from 2:00pm to 6:00pm until such time as X commences school.

9. Following the children’s move to Melbourne, should the Father reside in Sydney, he may spend additional time with the children on providing the Mother with seven (7) days written notice of his availability as follows:

   (a)from 9:00am to 6:00pm on not more than two (2) days each week; and

   (b)from January 2021 an additional overnight from 9:00am on the first day to 6:00pm on the second day, not more than once per fortnight provided such time is not exercised on consecutive days to those already ordered.

10. The Father shall spend time with the children on Christmas Day from 4:00pm until 4:00pm on Boxing Day.

11. That prior to the children’s move to Melbourne, all changeovers shall take place to and from the Mother’s residence.

12. Once the children move to Melbourne, all changeovers in Melbourne shall take place at the Mother’s residence or at Melbourne Airport at the Father’s election.

13. All changeovers in Sydney, once the children move to Melbourne, shall take place at the Father’s residence or Sydney Airport at the Mother’s election.

14. For the purposes of implementing these Orders once the children move to Melbourne, the Mother shall make arrangements for transporting the children to Sydney for time with the Father.

15. The parties shall each provide to the other electronically all flight details not less than five (5) days prior to any proposed trip.

16. The children shall communicate with the parent with whom they are not residing by way of video call each Wednesday and Sunday from 6:00pm to 6:30pm, with the parent with who the children are living to be responsible for initiating the call.

17. Both parties are restrained from listening in on the calls and from recording the calls.

18. Both parties shall do all acts and things and sign all necessary documents to cause X to be enrolled in Primary School E commencing 2021.

19. Each party shall inform the other and keep the other informed in relation to all health and education issues concerning the children or either of them that may arise whilst the children are in their care and upon the making of any medical appointments for the children or either of the children’s attendance upon any health professional or institutions shall forthwith advise the other and provide them with the opportunity to attend such appointment in person or by telephone.

20. Each party shall do all things necessary to ensure that the other is authorised to obtain information and documents available to each parent from all health professionals, care providers, day-care, pre-schools and schools attended upon by the children or either of them.

21. Each party is at liberty to attend any day-care, pre-school, school or extra-curricular events in which the children are participating and at which parents are permitted by the organisers to attend.

22. Each party shall forthwith notify the other of any change in their residential address, telephone number and/or personal email.

23. Both parties are restrained from denigrating the other parent or any family or friends of the other parent to or in the hearing or presence of the children.

24. Both parties are restrained from discussing these proceedings with the children or in the presence or hearing of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7906 of 2019

MR BEATON

Applicant

And

MS BEATON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application by the mother for an interim relocation to Melbourne with the parties’ two children, X, aged five, and Y, who will be two in October. The father opposes the application. He seeks that overnight time start with X and that Y join from October when he turns two. The mother has sought, as part of the relocation application, daytime arrangements in Melbourne and in Sydney.

2. The matter was relisted because between the hearing of the matter and when I had anticipated I would be handing down a decision, the New South Wales Government issued the Public Health (COVID-19 Border Control) Order 2020, which makes provisions closing the border between Victoria and New South Wales. Anyone entering New South Wales from Victoria, is required to self-isolate for a period of 14 days. I wanted to give the parties the opportunity to address me on any issues arising. 

3. I am grateful for the tendering of the Public Health Order. Having done a few COVID-related matters, this is the first time I have had the legislation provided to me. The closure came into effect on 8 July 2020 and is for a period of six weeks. It has the potential to extend.

4. The parties have both provided me with case outline documents. I have read the material which they rely on and their submissions, both in terms of the oral argument and that outlined in their case outline documents. 

5. There was a preliminary issue with respect to the way the Court should regard the report of Mr D dated 9 June 2020. The applicant relies on a report of Dr F as, effectively, a shadow expert with respect to Mr D’s report. As I indicated during the course of the interim hearing, I would deal with the reasons for permitting the respondent to rely on the report of Mr D within these reasons, rather than deal with it as a preliminary matter to the interim hearing.

6. The report of Dr F suggests that a degree of caution should apply to the report of Mr D. Mr D is not a psychologist or a psychiatrist, but he is trained in social work and has years of experience in preparing reports for matters before this Court and the Family Court. He has no specific training in the assessment and treatment of clinical psychological or psychiatric disorders. Those are the complaints raised by Dr F, that he has not addressed the research which underlines the assessment, diagnosis, treatment and prognosis of people when dealing with psychological and psychiatric disorders.

7. Dr F points to Mr D’s extensive clinical experience, the focus of that being on relationships between individuals, including children.  In Dr F’ view, it would have been more appropriate for the single expert to be a psychologist or a psychiatrist. He takes issue with Mr D’s references to post-traumatic stress. 

8. Mr D made observations at paragraph 63 of his report, referring to the mother, “Her distress was consistent with a post-traumatic stress profile in that references to separation triggered painful memories and emotions”.[1] He refers, at paragraph 78, to the mother experiencing post-trauma stress symptoms and anxiety, including panic attacks, restlessness and sleep deprivation, which are significant risks to her functioning as a parent.[2] He refers to living with symptoms such as anxiety, sleep deprivation, and the like, would be untenable in the long term, and would probably culminate in further psychological and physical problems.

9. Mr D was concerned that the symptoms would be unlikely to abate in the short or medium term, in the absence of emotional support. The children would be aware, or likely become aware, of the mother’s unhappiness. This would have an impact on the children, particularly as their mother is their primary attachment figure. Mr D opined that the mother’s emotional availability is central to the children’s sense of security.

10. Mr D does not diagnose the mother with post-traumatic stress disorder. He refers to her symptoms as being in common with post-traumatic stress. Ms C, a psychologist who the mother has seen over a period of time, refers to her symptoms in the second of two reports, by reference to post-traumatic stress disorder.

11. The report of Dr F suggests regarding Mr D’s report with some caution. In my view it is important to look to the reported symptoms of the mother, the risk those symptoms may impact on her parenting ability or capacity, and her relationship with the children, rather than whether or not the symptoms meet a specific criteria for a disorder or otherwise.

12. The father says that the mother has friends in Sydney and is able to have support available to her here. The support available from the mother’s parents is completely different in character to that which would be available from friends. It is clear from the amount of time that the mother’s parents have spent with the family in Sydney, and the time the mother and children have spent with her parents in Melbourne, that they have been able to live together. They have been on hand to assist her in all the practical matters of child rearing when it involves two very young children, and to assist her with all the emotional aspects that come with this.

13. It is very different to having friends who may live nearby. They have lives and commitments of their own that would not enable them, however well-meaning or how much they might wish to provide support, to drop everything, move into the house and assist in the way that the mother’s parents have done, and wish to be able to do. It is clearly of a different type of relationship. It is a provision of support by people who have a close relationship with the children as well as with the mother, and it is not easily replicated by non-family members.

14. The level of support provided by the mother’s parents includes the period prior to separation, which is evident at the time of separation when the mother was collected by the father from the airport, having just returned from Melbourne with the children. Both parents acknowledge the ongoing assistance provided. 

15. The problems for the mother in parenting the children in the current circumstances are obvious from the report, from her own evidence and that of her parents. She is living somewhere she has not wanted to live for some time with the care of a five year old and an almost two year old. Having two young children has highlighted the problems for her in managing herself, and has increased her feelings of isolation. She is anxious. She is not sleeping well. She is sad. That is the import from Mr D’s observations, all of which are matters within his remit to comment on.

16. The problems in terms of the impact on the children are again matters which are within the ambit of Mr D’s report. That is, that children pick up on distress, upset and unhappiness, particularly in the parent who is their primary attachment figure. The problem for the Court is to balance that issue with the need for these children to be able to have the benefit of a meaningful relationship with their father. 

17. These problems are exacerbated by the ages of the children, the geography between Sydney and Melbourne, and the current pandemic.  The recent closure of the border between New South Wales and Victoria highlights that issue. The legislation refers to a period of six weeks, but it is also clear that that could be varied depending on what happens.

18. The issues raised by the applicant with respect to Mr D’s report were described as requiring a discharge of the report. The report was obtained with the consent of both parents with knowledge of his background and qualifications, with respect to addressing relevant issues. Whether or not he was first choice is irrelevant. Both parents consented to him providing the report. The fundamental aspect of that is a consideration of the attachment relationships of these children, and that is within Mr D’s expertise. Dr F, of course, has not seen either the parties or the children, where Mr D has that advantage.

19. Mr D refers to the mother’s symptoms as they are described.  He is not purporting to diagnose the mother. The reference made by Dr F to the assistance that would be provided by the records of Ms C, Dr G and Dr H, are all matters that could have been dealt with by the father’s representatives. That might assist in understanding various matters, but no one has subpoenaed those records. 

20. I accept that Mr D’s report was properly contained with the consent of the parties, with knowledge of his expertise. He is not able to be cross-examined because these are interim proceedings. That highlights, in my view, the need to be cautious about the weight that one puts on a report. However, it does not mean that the report should not be admitted into evidence. That indeed was the course that I adopted.

21. Turning to the issues, there is the mother’s need for practical and emotional support from her parents and extended family in Melbourne in the context of her, on an interim basis, being the uncontested residential parent. On a final basis, the father seeks a shared care arrangement, but for the moment, that is the position.  This is as against the need for X and Y to be able to develop a meaningful relationship with their father.

22. The mother’s desire to move to Melbourne is not a recent, or in any way concocted. It is conceded in the father’s evidence that she has expressed that desire to move since X was born, that is, for the past five years. 

23. The mother describes herself as anxious, and not being able to sleep or eat. One might call this in lay terms, not coping. She is the primary attachment parent for the two boys. They are developing their relationship with their father. It is important for the development of that relationship that they have a secure attachment with their mother, who is their primary attachment figure. It is clear that the father is an important person to them, and of course they to him.

24. Ms C, a clinical psychologist who has been treating the mother, has provided reports dated 21 November 2019 and 11 February 2020. 21 November 2019 was the initial consultation. Ms C has seen the mother approximately fortnightly since then. Ms C refers to the way the mother has managed the separation and the care of the two young children. She refers to the mother’s symptoms as being: fatigued, difficulty sleeping, stress, anxiety, panic symptoms, and worried about the father’s ability to manage the care of the boys. 

25. On 29 June 2020 in the second report, Ms C refers to ongoing management of anxiety and depression in the context of relationship breakdown and the subsequent stressors relating to single parenting.  Ms C views the mother as meeting the DSM-5 criteria for major depression disorder and a generalised anxiety disorder. The criteria of those conditions she refers to include: depressed mood, appetite disturbance, sleep disturbance, fatigue, excess worry, anxiety and difficulties in controlling worry. She refers to the mother having clinically significant distress on a daily basis.

26. She refers to the symptoms of post-traumatic stress disorder in terms of their negative effect on the mother.  That is, she feels isolated, has difficulties experiencing positive affect, and emotional distress after exposure to her ex-partner.  It is clear from the evidence of Ms C that the mother is struggling.

27. Ms C refers to the treatment as therapy predominantly focused on cognitive behavioural therapy, and that a return to Melbourne would significantly assist treatment as her lack of emotional support in Sydney is minimising her treatment outcomes and causing significant distress. It is important for parents, especially single parents in early parenting years in relation to both parental and child psychological wellbeing, to have support available. 

28. The mother has engaged well with treatment, as Ms C observes.  Notwithstanding that, she continues to experience significant anxiety and subsequent low moods and needs ongoing therapeutic intervention.  Ms C concludes that the mother would benefit psychologically and practically from being in Melbourne and having consistent emotional and practical support from her extended family. 

29. In terms of the boys’ relationship with their father and how best for that to be developed if the mother were in Melbourne, it was raised whether it would be possible for them to develop a meaningful relationship.  The father was concerned that the mother, certainly in the initial phases post-separation, was not promoting or facilitating the relationship.  This was exemplified by her initial requirement for supervision by child contact centre I. That was done without Order and by agreement between the parties. Y, at that time, was just one year old. 

30. The separation occurred in circumstances where the mother was in Melbourne visiting her family with the children. She had no advanced notice from the father. She was collected by him from the airport, and once they arrived home told that they were separating, and he had moved out. This has had a significant impact on her.

31. The mother’s behaviour in that immediate period with respect to requiring supervision may not have been helpful. It was something that she has moved through.  She has supported the time arrangements, so that the boys are able to develop their relationship with their father. One would expect that her support for the children’s relationship with their father, will increase with the lessoning of her anxiety. 

32. In my view, it is possible for the children’s relationship with their father to develop and move to a meaningful relationship with them living with their mother in Melbourne. The move to overnight time is something that will need to be managed given that Y is not yet two.

1. The border issues, in my view, give the opportunity for an increase in daytime periods between now and any move, to provide a solid base for these children for the relationship to develop. It is also worth observing that there are a number of options that might happen once the border restrictions are lifted. For example, the father is currently working from home, which he may choose to do in Melbourne. That would be a matter for him. There appears to be no barrier to that. 

2. The advice by counsel for the father was that he will be required to work in Sydney once the office reopens. When that is remains unclear. There are options of, for example, him returning to live in the former matrimonial home and being released from his current lease. I have no evidence about that, but one would expect that those things are the sorts of things the parties would explore. 

3. The father floated the idea, and I say floated because I understand it had not been previously raised, of taking out a further loan for accommodation for the mother outside the former matrimonial home, whilst renovations are concluded. There are a number of options that the parties might wish to explore which may assist the father, once the mother and children move to Melbourne, in being available there if he is not required to be physically in the office in Sydney.

4. There was some level of criticism directed at the father by counsel for the mother about his moving from contractor to an employee of Company J following the separation. The desire to have secure employment with the benefits that that can give is not something I would be critical of. And it would seem to me, in the context of the pandemic, that it may well be fortunate that the father made the choice that he did to secure his employment on a more certain footing than it was previously. 

5. The issue then is, when Y will be ready for overnight time. Mr D suggests that one would take a very slow approach to that, and that it would not be until Y was around the age of four. Y of course has the advantage of his brother whom he will be travelling with in terms of building that relationship. That can provide for very young children a level of security in terms of being able to move from one parent to the other. 

6. Whilst the father wishes overnights to start as soon as possible, it needs to be done in a way that is realistic for Y. In my view, it could not occur prior to Y’s second birthday. There needs to be the opportunity to develop the relationship with the father over the coming months in Sydney. The timing, then, of any move, would be from Y’s second birthday or the releasing of the border restrictions between Victoria and New South Wales, or whichever is the later.

7. The mother, having some degree of certainty in an extremely uncertain time, I would expect would assist her to plan and order her life, and therefore allow her to feel more confident about the future. And one would hope that would decrease the anxiety that she has been suffering from. 

8. The Orders that I propose making will continue the daytime periods between the father, Y and X through to December of 2020 before the introduction of overnights. 

9. In my view, it also balances the issue about the frequent changeover times, and the need for the parents to come together when that occurs. It can be difficult. It can expose children to parental distress, upset and conflict. These are difficult balances to make.  They are interim proceedings, so in terms of Orders sought for block periods of time, I do not propose to take the matter that far ahead. The important aspect now is the benefit to the children of maintaining and developing a meaningful relationship with their father. 

10. I note the decisions of Godfrey & Sanders[3] and Moose & Moose[4] with respect to their Honours’ comments about meaningful as opposed to optimal. One would hope that the Orders that I propose making for the children would give them a secure base for the development for that relationship with their father. 

11. The other aspect of that is giving the mother the opportunity to regroup following the separation with support necessary for her. Should it be that any final decision requires her to live with the children in Sydney, it will give her the opportunity to have a period where she has, whilst the children are very young, a high level of support from her parents. 

12. Whilst X will start school next year, it is a very early stage of schooling. If he were required to change school, one would expect that would not cause X a major impediment. 

13. Should the mother fail to facilitate the time arrangements, there would be evidence about that at any final hearing as to whether the mother would be able to support the relationship between the children and the father were she to remain in Melbourne. 

14. The proposal that the time occur once per month in Sydney and once per month in Melbourne, and additional periods if the father is in Melbourne more often, would appear to me to support the children’s relationship with their father. 

15. Both parties seek Orders for equal shared parental responsibility. In the circumstances of this matter, section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) applies. However, given the ages of these children, I do not consider it would be in their best interests to Order equal time nor substantial and significant time at the present. In any event, it would not be reasonably practical to do so.

16. The father had sought to separate the children in terms of the overnight periods so that X could start in advance of Y. It seems to me there are real advantages for these children in keeping them together so that they travel together, and support each other. Whilst I accept that will be disappointing for the father, it seems to me there are advantages for the children in that approach.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate: 

Date: 28 July 2020

[1] Mr D Report, at paragraph 63.

[2] Above n 1, at paragraph 78.

[3]Godfrey & Sanders (2007) 208 FLR 287.

[4]Moose & Moose [2008] FamCAFC 108.