BERRY & EDDY

[2015] FamCA 280

FAMILY COURT OF AUSTRALIA

BERRY & EDDY [2015] FamCA 280

FAMILY LAW – CHILDREN – Children to move to Sydney metropolitan area – Parents to ensure enrolment in schools

APPLICANT: Mr Berry

RESPONDENT: Ms Eddy

INDEPENDENT CHILDREN’S LAWYER: Mr O’Dowd

FILE NUMBER: SYC 4998 of 2009

DATE DELIVERED: 10 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Linden Legal

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

SOLICITOR FOR THE ICL: Legal Aid NSW

Orders

IT IS ORDERED

1. That by no later than Saturday 18 April 2015 the mother cause the children B born … 2003 (“B”) and C born … 2006 (“C”) to live in the Sydney metropolitan area within 5 kilometres of their previous Suburb D address.

2. That the mother and the father within 7 days do all acts and things and sign all documents necessary to ensure B’s enrolment at E School and C’s enrolment at Suburb D School and to maintain the children’s enrolments at these schools pending further order of the Court and for that purpose the father shall sign and complete enrolment forms for the children and provide them to the mother or her lawyers where after the mother will sign and return the enrolment forms to the father and the father will lodge the enrolment forms with the schools.

3. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4998 of 2009

Mr Berry

Applicant

And

Ms Eddy

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to Mr Berry (“the father”) and Ms Eddy (“the mother”).  The proceedings concern their two children, B, born in 2003, who is now 12 years old, and C, born in 2006, who is now eight years old. 

2. Until about 18 January 2015, the parties and the children lived in Sydney and the children attended schools in Sydney.  C attended Suburb D School and B was to commence secondary school at E School. 

3. On 18 January 2015, the mother informed the father that she had moved to Newcastle to live with her new husband, Mr F, who lives and works in Newcastle. 

4. The father brought an application for the children to be returned to Sydney, and on 25 February 2015 orders were made by Senior Registrar FitzGibbon requiring the mother to return the children to Sydney by 20 March 2015; to reside with the children not more than five kilometres from their previous Suburb D address, and requiring both of the parents to enrol the children in E School and Suburb D School and maintain that enrolment. 

5. Order 3 of the orders made by the senior registrar varied the arrangements for the father to spend time with the children during the period before their return to Sydney. 

6. The mother filed an application to review only orders 1, 2 and 3 made by the senior registrar, and on 20 March 2015 the orders of the senior registrar were stayed pending the hearing of the review. 

7. The matter therefore proceeds by way of a hearing de novo of the father’s application for the return of the children to Sydney. 

8. There are a number of factual disputes which cannot be determined on the state of the evidence before me. 

9. Relevantly, the children have told their father that their mother is working, and working in Sydney. There is a dispute about whether or not, prior the mother’s move to Newcastle, the father habitually had the children with him on Sunday nights and returned them to school on Monday.  Those matters cannot be determined on the state of the evidence before me. 

10. It is the mother’s case that the children should continue to live in Newcastle, but if so ordered, she tells the Court that she will return with them to the Sydney metropolitan area. However she wishes to live in the northern extremity of the metropolitan area so as to be closer to Newcastle. 

11. In her case, it was conceded that her chosen place of residence would require the children to travel for at least 45 minutes each way to school and from school. 

12. It is necessary to consider the history of the matter. 

13. There were consent orders made on 11 April 2013 which provided for the parents to have equal shared parental responsibility.  The orders provided for the children to spend time with the father from Friday after school until 6 pm on Sunday. 

14. In the child-responsive program memorandum, the family consultant at paragraph 4 notes:

    The parents were involved in Court proceedings between 2009 and 2013.  Final orders were made by consent on 11 April 2013, which provided for the children to live with their mother and spend time with their father on each alternate weekend from Friday after school to Sunday 6 pm for half of school holidays and on special days.  These are the current parenting arrangements, although the children spend Friday to Monday with their father on the alternate weekend at least sometimes, and possibly every time. 

    The mother disputes that statement. 

15. The mother filed an application for parenting orders on 31 March 2014.  Although she sought no final order for relocation, she sought interim orders permitting her to move the children’s place of residence to Newcastle.  Otherwise the mother’s application seeks orders that the children spend time with their father from 4 pm Friday until 6 pm Sunday during school terms and for half of school holidays. 

16. The father in his response to that application sought orders that the children spend alternate weeks in his care. 

17. On 30 May 2014, the solicitor for the mother wrote a letter to the solicitors for the father in the following terms:

    We note that the matter is listed for a directions hearing on 2 June 2014 at 10 am and confirm our client has instructed us not to press her interim relocation application on that day, but rather to seek an early hearing date.  Our client is getting married in [G City] in June and is seeking to relocate with the children so that she can live with her husband.  We understand from our telephone conversation that you have no objection to seeking an early hearing date.

18. The mother remarried in 2014. 

19. The mother duly sought and was granted expedition on 12 December 2014, and the matter was listed on that day for a first day trial, which is to take place, according to the husband, on 22 April 2015. 

20. On Saturday, 17 January 2015, the father returned the children to the mother after a period of school holidays with them. 

21. The mother immediately and without notice to the father took the children to live in Newcastle.  The father in his affidavit sworn on 21 January 2015 deposes:

    On Sunday, 18 January 2015 at about 5.15 pm, I received a telephone call from [Ms Eddy].  She said to me words to the effect, “Hi, [Mr Berry].  I guess by now you have figured out that me and the children have relocated to Newcastle with [Mr F].”  I said to [Ms Eddy] words to the effect, “No, I had no idea that you had moved to Newcastle.  We still have a Court case pending about that.”  [Ms Eddy] said to me words to the effect, “I am not waiting for the Court to decide any more.  The reason for my call is to advise you that I have moved.  I am calling to tell you that the girls are quite upset about us moving and they were worried about you.” 

    Notwithstanding, [Ms Eddy] refused to allow me to speak to the children.  She said to me words to the effect, “I am not going to let you speak to them now, as they are quite hysterical.  When you speak to them later this evening you will calm them down by telling them that it is okay.”  I said to [Ms Eddy] words to the effect, “I want to know the address of where my children are living at the moment.”  [Ms Eddy] refused to provide me with her address.

22. On 19 January 2015 the mother applied for a provisional apprehended domestic violence order against the father. 

23. Also on 19 January 2015, a letter was written by the father’s solicitors to the mother’s solicitor stating inter alia:

    We are instructed that last night your client told our client that she has unilaterally relocated with the children to Newcastle despite her application being pending and yet to be determined before the Court.  Our client also spoke with the children on the telephone, who were very distressed.  We seek your client’s confirmation that the children will return to reside in Sydney by no later than 26 January 2015, and that [B] will commence to attend [E School] and [C] to continue at [Suburb D] at the commencement of term 1, 2015.  If we do not receive a response within 24 hours, our client will file an urgent application to the Court seeking recovery orders for the children, and also present this letter on the issue of costs against your client.

24. On 22 January 2015, the father filed an application in a case seeking the return of the children to Sydney. 

25. Also on 22 January 2015, the provisional apprehended domestic violence order was returnable before the Local Court, and the Local Court magistrate declined to make an order. 

26. On 22 January 2015, the father telephoned schools in the Newcastle area to ascertain if the children had been enrolled.  He spoke to a person at H School who told the father than application had been received for the enrolment of the children. 

27. The father told that person that he did not consent to the children attending H School and that there were current orders and parenting proceedings in place. 

28. The father also instructed his solicitors to write a letter to H School. 

29. The mother proceeded to enrol the children at H School.  On 23 January 2015, the mother sent an email to the school in the following terms:

    I am writing to express my disappointment in the news that the school may not be able to accept [B] and [C’s] application.  I also hope that my email may put context in the girls’ situation and thus help you reconsider their circumstances and applications.  I have been in the Family Courts for quite some time with my ex-husband and lodged an application for an expedited hearing last year.  Amongst relocation, I have put in an application for sole parental responsibility forward to the Court (sic) reluctant to bring personal circumstances to view, but years of violence, Court proceedings and traumatic separation have left the girls and I in a harsh situation. 

    I was informed that the Court accepted my application and set down my matter for an urgent hearing.  However, this is still a slow process within the Family Courts and I was just given several notice several days ago that the first of several hearings is in March and April 2015.  I moved to Newcastle in the beginning of January, as I could no longer live in Sydney.  This left me in quite a predicament, as I had no choice but to move up yet still could not agree with [Mr Berry] for a school for the girls. 

30. At the conclusion of the email, the mother said:

    I also informed [Ms I], (whom I understand to be a person working for the [H School]), that there is a current AVO against [Mr Berry] for myself and would appreciate none of my personal information to be disclosed to him. 

31. The mother must have been aware that there was in fact no apprehended domestic violence order in force when she wrote that email.  The statement was false, and the mother must have known that it was false.  The mother gave no explanation for having provided the school with false information.  The fact that the mother gave information to the school which was highly prejudicial to the father and which she must have known to be wrong raises concerns about whether her evidence should be accepted where it touches upon matters which are in dispute between the parties. 

32. On 27 January 2015, the father’s solicitors wrote to H School confirming that the father did not consent to the children’s enrolment. 

33. On 2 February 2015, a letter was written by H School to the father advising the father in the following terms:

    [B] and [C] were enrolled at [H School] on Monday, 2 February.  At the point of enrolment the children had already missed the first week of school.  The school is satisfied that it is able to enrol the girls at this time.  If [Mr Berry] is dissatisfied with [Ms Eddy’s] choice of schooling, it is our view that this matter should be settled in the Family Court.  This is not a matter for [H School].

34. The mother completed enrolment forms on 30 January and was interviewed by an officer from the school.  The records of the interview and the enrolment forms were tendered in the proceedings.  In the interview record relating to C, the Court notes, at question 6, the question “Are there any family situations?”, the word “yes” is circled.  “If yes, are there any custody issues/Court orders”, in handwriting is written “both” and “AVO against the father”.  On the enrolment application is a yellow sticker placed by the school which contains the words:

    Mother requests her address and phone number is not release to her ex-husband. 

35. A similar form was completed for B, and on B’s form at clause 6 the following words appear:

    All of the above and AVO.  See head of school.

36. The interviewer noted in relation to B:

    Very difficult family circumstances, hard to judge in interview, clearly nervous, half-interested in opportunities. 

37. Also on 30 January 2015 a letter was written by Ms J, who is the head of school of H School, to 10 people, whom I apprehend to be members of the staff at the school.  The letter reads:

    Dear Staff,

    On Monday we have two new students join us, [C], year 3, [B], year 7.  Both girls live with their mother and stepfather and have very recently moved from Sydney to Newcastle.  There is an AVO against the girls’ biological father that protects both their mother and their girls.  I am obtaining a photo of the biological father this weekend, and I will pass this on to both receptions at [both campuses].  Please don’t display it anywhere visible.  Should, however, the father ask for either child, they are not to go with him.  Call myself or [Ms K] immediately, and we will call the police – feel free to call them directly, and tell them you are doing this if the situation appears more urgent.  I don’t expect anything, but it is better to be aware and alert.  The girls are naturally confused and feel disoriented about their recent move from Sydney.  They have left their friends and known world.  Please assist in giving them a normal and positive environment where they feel cared for.  I ask, to protect the privacy of the girls and their mother, that you do not pass this information on unless you ask my permission first.  All correspondence with home needs to go directly to the mother or stepfather. 

38. The actions which were taken by Ms J and the potential involvement of the police should the father attempt to contact the children can only have sprung from the knowingly false information which was given to the school by the mother. 

39. On 25 February 2015 an order was made for the return of the children, and the mother’s application to review that order has given rise to the hearing which took place before me yesterday. 

40. This is a parenting decision and is to be determined having regard to the best interests of the children as set out at section 60CC of the Family Law Act.  In relation to the provisions of section (2)(a), it is not in dispute that the children will benefit from having a meaningful relationship with both of their parents.  In relation to subsection (2)(b), it is sufficient to say that the local Court declined to continue the provisional ADVO  for which the mother applied. 

41. The views of the children have been made known to the Court by the child-responsive program memorandum.  At paragraph 12 the family consultant says:

    Both parents report that both children have said that they do not want to move to Newcastle. 

42. As to the nature of the relationship with each of their parents, there is no evidence before the Court which suggests that the children have other than a loving and appropriate relationship with both of their parents. 

43. The likely effect of changes in the children’s circumstances is an important factor in this case.  It is the mother’s case that the children’s time with their father will not be affected by her remaining in Newcastle.  I do not accept that submission.  The father is unable to collect the children from school on Friday afternoons as he was previous able to do.  If it was the case that the father had been returning the children to school on Monday, then that is no longer possible either.  The father is unable to attend their school functions.  His ability to attend parent-teacher nights and sporting functions is severely curtailed. 

44. The father in his affidavit material says that he has been already unable to attend the parent-teacher night or the children’s swimming carnival.  The children’s ability to participate in weekend sport is curtailed.  Whatever travelling arrangements are ultimately put in place between the adults, the children would have to travel by car to Sydney after school on Friday and back to Newcastle on Sundays.  In addition the children would not be in the schools with which they are familiar and with the friends they have made over the last years of their schooling.  C will not be with the friends that she has made at Suburb D School, and B will not be with those of her friends who would move with her to E School. 

45. The mother raises financial concerns as a reason for her not having been able to remain in Sydney.  She brings no evidence to support that submission, and I propose to disregard it. 

46. The mother has acted in complete disregard of the rights of the father as a parent with equal shared parental responsibility for these children.  She has enrolled the children in a school knowing that he did not consent to the enrolment.  She has removed them from proximity to him in a manner which interferes with their ability to spend time with him.  Ultimately those matters will be given further consideration when a Court considers the mother’s attitude to the responsibilities of parenting and her willingness to foster the children’s relationship with their father. 

47. It is argued on behalf of the mother that the children are well settled in their present environment and that they should not again suffer the disruption of being moved.  I do not accept, on the evidence available before me, that the children are settled. 

48. In the father’s affidavit sworn 8 April 2014 he deposes:

    During the weekend of 20 March 2015 [B] said to me words to the effect “[C] has not been happy.  On one occasion she tried to jump in the ocean from the rocks on the side of the road where we live, and she also threatened to jump off the balcony from where we live.”

49. The father says he spoke to C and C said to him words to the effect “I’m not happy, because Mum keeps being mean to me.  I just want to die.” 

50. A letter was written by the solicitors for the mother to the solicitors for the father on 26 March 2015 in which she sets out concerning behaviours, particularly on the part of C and C’s having expressed the wish to the mother that she wanted to die. 

51. The father deposes at paragraph 20 of that affidavit that on numerous occasions the children have said to him:

    I just want to come back to Sydney.  I cannot believe Mummy is doing this.  I’m really scared Mummy will make us stay in Newcastle.  I don’t want to live in Newcastle.  I want to come and live with you in Sydney.  This is our home.

52. The father deposes that both children have expressed to him excitement at seeing their friends at school again and have said to him words to the effect:

    I’m really excited to see my friends again in Sydney.  I’ve made new friends in Newcastle, but I’m really glad and excited to be going back to Sydney.

1. Between July and December 2014 the children were attending counselling with Ms L, a psychologist in Sydney.  The question of the children’s and particularly C’s psychological health is not a recent concern.  In the child-responsive memorandum the family consultant records at paragraph 12:

   [Ms Eddy] said that both the children have made comments about killing themselves or wishing they could die in respect to the parents’ dispute and the proposed relocation to Newcastle.

2. Paragraph 14 the family consultant says:

   The parents have engaged [Ms L] as a treating psychologist for [B] and [C].  This was after the children had already seen a different psychologist as organised by [the mother], whom [the father] did not approve of.  [The mother] says she hopes that the children can learn strategies in order to cope with their current situation, particularly so that they do not feel that they want to die.  [The father] also said that he hopes the counselling can help the children cope with what they are going through with respect to their mother’s proposal that they relocate to Newcastle.

3. It would seem appropriate, having regard to the concerns expressed by both parents and the family consultant about the children’s psychological health, that they receive assistance from a psychologist, and their return to Sydney would allow them to resume counselling with Ms L. 

4. The children were well settled in their schools and home in Sydney.  The disruption to that settled state, by the mother’s unilateral actions, has served only to unsettle them. 

5. I give particular weight in this determination to the children’s expressed wishes not to relocate to Newcastle and to the concerns expressed about their psychological health. 

6. The best interests of these children require that they be returned to their schools, being the schools that the parents both agreed they should attend.  I accept that B will be attending a new school as she transitions to high school, but that is the school where her friends from primary school will also attend. 

7. Senior counsel for the mother contends that the mother should not be required to live proximate to the children’s schools.  It was the Independent Children’s Lawyer’s (ICL) submission both before me and before the senior registrar that the children should live within a five kilometre radius of Suburb D School. 

8. The mother’s proposal would have the children living at least 45 minutes away from the school.  The children’s interests are paramount here.  There is no benefit to the children in requiring them to travel for 45 minutes to and from school each day, and I propose to make the orders which are sought by the ICL requiring the mother to live proximately to the schools. 

9. School resumes on Monday, 20 April 2015.  The orders that I make will require the mother to return the children to Sydney by Saturday, 18 April 2015. 

I certify that the preceding SIXTY-ONE (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 April 2015.

Associate: 

Date:  10/04/2015