Browne and Simpson

[2013] FCCA 527

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROWNE & SIMPSON [2013] FCCA 527

Catchwords:
FAMILY LAW – Parenting proceedings – children live with the mother – father’s application for children to live with him – mother residing in Melbourne and father residing in South Australia – children wish for current arrangements to continue – children mature – father engaged in manipulative behaviour – children to continue living with the mother and spending time with the father.

Legislation:  

Family Law Act 1975 (Cth) ss.70NFA(2)(b), 75(2)

Applicant: MS BROWNE

Respondent: MR SIMPSON

File Number: MLC 5113 of 2008

Judgment of: Judge Hartnett

Hearing date: 5 June 2013

Delivered at: Melbourne

Delivered on: 21 June 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. Each of the Applicant mother and the Respondent father have equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2003.

3. The children live with the mother.

4. The children spend time with the father as follows:-

   (a)during the school term from a flight departure time out of Melbourne not before 7.00pm on Friday to a return flight to arrive at Melbourne Airport by 7.00pm on Sunday on two occasions, being the third and seventh weekends of the school term, or other weekends as agreed in writing between the parties where:-

   (i)these weekends are to be aligned where possible with Father’s Day, and not to occur on the Sunday of Mother’s Day; and

   (ii)the father is to be in substantial attendance during these times.

   (b)for one week in each of the school term holidays being from the mid Saturday by 12noon at Adelaide Airport until 12noon at Melbourne Airport on return, or otherwise as agreed in writing between the parties.

   (c)on the weekend of the [event omitted], each alternate year beginning 2015, from a flight departure time out of Melbourne not before 7.00pm on Friday to a return flight to arrive at Melbourne Airport by 7.00pm on Sunday noting:-

   (i)this weekend is to comprise one of the two occasions during the school term as provided for in order (4)(a) herein;

   (d)for three continuous weeks commencing by 12noon at Adelaide Airport on Boxing Day in each year (26 December) and concluding by 12noon at Melbourne Airport at conclusion; and

   (e)as otherwise agreed in writing between the parties.

5. The father be responsible for all travel including the expenses in respect of the children flying to and from Adelaide.

6. When the children are not with the father, the children shall communicate with the father by telephone between 6.30pm to 7.00pm each Wednesday and Friday, but if the children are unavailable to take the call instigated by the father at these times at any given time, then the mother shall ensure that the children telephone their father at the first available opportunity thereafter.

7. During school holiday time with the father, the children communicate by telephone with the mother on two occasions in each week as instigated by the mother and/or the children.

8. Each party shall advise the other forthwith of:-

   (a)any change of address or telephone contact number; and

   (b)any serious health issue in respect of the children whilst they are in their respective care.

9. The father provide 21 days written notice to the mother of:-

   (a)any weekend he intends to spend time with the children, including  travel arrangements for the children; and

   (b)the travel arrangements made by him in respect of holiday time spent with the children.

10. The mother shall provide copies of the children’s school reports, school notices and school photos to the father, or if the school is agreeable, the mother shall authorise the school to provide copies of such reports directly to the father at the father’s cost.

11. The father is hereby prohibited from attending at either of the children’s schools unless invited for a school purpose or unless with the written consent of the mother first obtained.

12. Any proceedings issued by either of the parties in the 24 month period from this date are to be listed before Judge Hartnett in the Melbourne Registry of this Court.

THE COURT ORDERS BY CONSENT THAT:

1. The father will do all acts and things necessary to enable the mother to obtain a passport for the children or either of them. The father will pay for costs of the passports to issue and same shall be held in the possession of the mother.

2. The father will pay directly to [X]’s school, in the time period requested by the said school, the cost of her travel to Italy with the school which is in a sum of approximately $5,300.

THE COURT ORDERS THAT:

1. In the event the father fails to comply with order 13 herein within 14 days of a request being made by the mother, the mother is authorised and permitted to apply for and receive an Australian passport for the children without first obtaining the written consent of the father. Any costs borne by the mother as a result shall be payable by the father to her and there is liberty to the mother to apply on short notice with respect to such payment.

2. Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 5113 of 2008

MS BROWNE

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

1. These proceedings follow earlier proceedings which had commenced with the mother filing an Application in a Case on 19 April 2012. That application was for a recovery order to issue in respect of the parties’ daughter [X] born [in] 2000. The mother also, and on 20 April 2012, made application alleging contravention of earlier orders by the father. Those applications were dealt with by the Court on 30 May 2012 and the reasons delivered on that day are not re-stated here, but should be read in conjunction with these reasons. The Court found the father to have contravened orders of the Court and shown a serious disregard of his obligations under the primary orders of 17 October 2008 and pursuant to s.70NFA(2)(b) of the Family Law Act 1975 (Cth) (‘the Act’).

2. The father filed a Response on 12 June 2012 (this should have been an initiating application but the parties are litigants in person) wherein he sought that the parties’ two children [X] born [in] 2000 and [Y] born [in] 2003 live with him and spend time as agreed with their mother. He sought those orders on both a final and interim basis. He sought a report be prepared pursuant to s.62G of the Act and introduced into evidence. He then filed an Amended Response on 1 October 2012 seeking that the children spend time with their mother as set out therein. Essentially, it was for one half of the school term holidays; for three weeks in the Christmas/ January holidays; and on two occasions for weekends in each of the school terms. He sought further that the mother be responsible for all travel expenses for travel between Adelaide and Melbourne and that such costs not be offset against any child support assessment required to be paid by the mother.

3. The mother then filed an Initiating Application on 16 April 2013, which she amended by Application filed 13 May 2013 to include seeking an order that the father sign all necessary documents to enable a passport to be obtained for the two children. Otherwise, the mother sought a continuation of the earlier Final Orders made 17 October 2008 that the two children continue their residence with her. She sought the children spend time with their father for one half of the school term and January holidays and for two weekends in each school term. The mother sought the father be responsible for the costs of travel.

History

1. [X] is now 13 years of age and her brother [Y] is 10 years of age. [X] attends [school omitted] and [Y] attends [school omitted]. Both are very happy and settled in their respective schools. They have friends and are doing well.  Since separation in June 2007, the children have lived with their mother and with each other. Final parenting and property orders were made in 2008. In that same year, the father resigned his employment in Melbourne and travelled to [G] in the State of South Australia where he commenced to reside. [G] is approximately one and a half hours drive south of Adelaide. [G] was where his parents lived. This move resulted in the father choosing to live out of the State in which his children resided, a situation that has continued for the last five years. In South Australia the father obtained employment as a [omitted] in receipt of income of approximately $15,000 per annum. He commenced to make no payments of child support to the mother for the support of his children, and he has not done so since 2008. He resides with his wife Mrs S and with his mother, in a home provided to him by his mother and father.  Both his mother and wife support him, and his children, as needed. The children have spent holiday time with their father and some weekend time during the school terms. They speak regularly with him on the telephone. On occasion, the father has over-held the children at the conclusion of time spent with which has included enrolling the children at the local school without the consent or knowledge of the mother. His behaviour in April 2012 (as described in my reasons of 30 May 2012) involved placing his daughter at risk. A serious lack of judgment was exhibited by him. His wife, who although not a party to the proceedings and therefore not subject to any orders, behaved appalling in providing assistance to [X] to travel to Adelaide without advising her mother. Stress and trauma were occasioned to the mother, and sadness to the child [Y]. The father has claimed on each occasion of over holding that he was acting in accordance with the wishes of his children. He did not exhibit any mature response in these discussions held with the children, and pursued an outcome desperately wanted by him with no regard for the promotion of the children’s best interests, in particular the advancement of their emotional needs.

2. Since separation, the mother has been required to, and has, provided financial support for the children. This has seen her employed as a [occupation omitted] working hours which normally cease at 4.00pm each day to allow her to attend to her home duties and care of the children. She is on some weekends assisted in the children’s care by her mother and father and brother and his family. The children enjoy the company of this extended maternal family. The mother’s responsibilities are large, and at times onerous, in the absence of the children’s father being more readily available.

Evidence

1. The mother relies upon Affidavits sworn by her on 16 April 2013, 7 May 2013 and 3 June 2013. The father relies upon Affidavits sworn by him on 28 May 2012 and 29 May 2013. He also relies upon an Affidavit sworn by his wife Mrs S on 28 May 2012. The mother did not seek to cross-examine Mrs S and accordingly her evidence was unchallenged. The mother accepts that the children have a loving relationship with their step-mother, who is involved in their care, and who applies herself to ensuring the children are happy whilst with them. However, the Court notes her affidavit evidence is critical of the mother and makes comment, especially in paragraph 11 therein, upon matters of which she has no knowledge. It is not probative evidence upon which the Court can rely and she is unqualified to make the comments that she does. Although Mrs S claimed to be supportive of the children’s relationship with their mother, her evidence was to the contrary. She attempted to highlight the care the children receive from her, as distinct from her implied and/or stated (as derived from what the children allegedly tell her) lack of care received by them in the mother’s household. Examples were:-

   “5. On several occasions the children have stated to me that they really want to live with the father and I in [G], South Australia. They tell me how much they feel at home here and how safe they feel whilst visiting us for the short amount of time that they do. When they leave our care to return to Melbourne they often break down and cry. I believe the children see me as an important maternal figure in their life. In the past, [X] has stated to me that she likes how much I care for her, how I always ask the children what they want for dinner, if they have eaten enough or can I get them a drink. [X] tells me that when they live with the mother she rarely cooks for them and that most of their meals are takeaway meals.

   6. [X] and I spend a lot of time together doing a lot of different things. For example, we play ball games, play Polly Pockets, go shopping, spent time in the kitchen cooking for the family and painting each other’s nails. [X] has mentioned to me on several different occasions that the mother rarely does those types of things with her.

   …

   8. [X] and [Y] have stated to me that they like how I show genuine interest in their thoughts and feelings and that the mother tends to just brush them off.

   …

   11. It has been a constant theme of the children’s time they spend with us since they were young that they want to live here in [G] with the father and I. The life they have had with the mother has been unsettled since the father and her separated. The mother has had several relationships and exposed the children to unsafe environments. She appears to be unfocussed on the children’s best interests. When the children stay with us their (sic) they are our primary concern and our lives revolve around them and their needs. They enjoy a close relationship with my mother and sister’s family.”

   It is evident that Mrs S does not support the mother’s relationship with the children, and on occasion actively discourages it.  This does not promote their best interests. It supports the manipulative behaviour of the father, as described hereafter.

2. As sought by the father, and in part to have before the Court an expression of the children’s wishes, a Family Report was obtained by the Court. It is dated 13 May 2013 and was introduced into evidence at trial. Neither party sought to cross-examine the author, Ms M.

3. Ms M recommended that the children continue to live with their mother and spend time with their father in a not dissimilar manner to that which occurs presently, and in a manner that was sought by the mother in the orders she proposes be made. In particular, Ms M noted that the two weekends to occur during school terms should not commence before 7.00pm on Friday at Melbourne Airport and should conclude before or at 7.00pm on Sunday at Melbourne Airport. Ms M further recommended that the father be responsible for all associated costs of travel. Ms M’s recommendation that the parents attend a ‘Parenting After Separation Program’ I will not adopt, on the basis that orders have already been made for that to occur in the long history of this litigation, and the mother has complied with the order, but the father has not.

4. Ms M observed both the mother and father and, in a secondary capacity, Mrs S to have warm, secure attachments to the children. She observed the children to be attached to each other, with [Y] particularly relying on [X] for support in the absence of his mother. Ms M noted that the father asserted that the children wished to live with him, although they were not the wishes expressed by the children to Ms M. [X] wished for no change in her living arrangements and was “too scared” to tell her father in person. She felt sad about going to Court so regularly, and worried about missing school. She cried as she told

   
   

   Ms M of her concerns. Ms M noted “she presented as extremely distressed by the ongoing Court proceedings in this matter” (at paragraph 24 of the Family Report). [Y] did not wish to choose between his parents and nor did he wish to hurt either of them. He said “… but I can’t live in two places at once” (at paragraph 16 of the Family Report).

5. Ms M said, as to the reason for the proceedings, in paragraph 23 of her Family Report:-

   “…Mr Simpson seemed stuck with the idea that the children wanted to live with him in preference to living with their mother, and had not considered until the point of interview that the children may be: (a) responding to his distress at not being able to be with them all the time, (b) struggling with the parental separation and wishing that they could live with both their parents, or (c) telling both parents what they think their parents want to hear, or (d) other alternative explanations.”

   And further at paragraph 27 of her Family Report:-

   “This matter has been marred over many years by the father’s persistent and unfounded anxiety in regard to the children’s wellbeing and in regard to his own separation from the children. In the writer’s view this matter would benefit from the father’s attendance at counselling in regard to those identified issues.”

6. At trial, the father accepted the expressions of [X]’s wishes to remain living with her mother. He claimed however to have had further discussions with her, such that her wishes were now to spend the totality of each term vacation with him and most of the Christmas/ January school holidays, and thus he sought orders to that effect. He again showed little insight into the children’s emotional needs. He pushed with [X] the outcome he wished for. His proposal was opposed by the mother.

7. During the course of the trial, the father indicated that he did not oppose the issue of a passport for the children and that such passports could be held by the mother. Further, he gave evidence that he was prepared to pay for the cost of issue of [X]’s passport and, in addition, pay for the total cost of her school trip to Italy in 2014, which is estimated to be a cost of approximately $5,300. The mother was grateful for this offer and is happy for the father to make such a contribution. Accordingly, the Court will make orders to this effect and with the consent of the parties.

8. The father’s family does not celebrate Christmas on Christmas Day but rather Boxing Day. The father wishes to have the children with him from 12noon on each Boxing Day. The mother is amenable to this request and suggests that time spent with in the Christmas vacation occur from 12noon on 26 December in each year (the children shall arrive in Adelaide by plane by 12noon) for a continuous three week period to conclude by 12noon at Melbourne Airport on 16 January in each year. This proposal breaks up the children’s time spent with their mother on the long summer holiday, but is acceptable to the mother, and gives the father an opportunity to spend a long holiday with the children before they return to Melbourne for a further shorter holiday break before getting ready for the resumption of the new school year. This arrangement would benefit the children.

9. The mother works at [omitted] and lives about 40 to 45 minutes drive away, sometimes longer, in [omitted]. On the weekends and term holiday periods the children spend with their father, the mother is required to have the children at Melbourne Airport on a Friday evening. Currently, she is leaving her workplace two hours earlier than usual and foregoing wages of approximately $65 to $70 to travel home and collect the children, to then drive them at least one hour back to the Melbourne Airport. The father’s demands as to the children’s arrival at the Adelaide Airport are completely unreasonable and show no insight into the living arrangements and pressures of the mother and children in Melbourne. It is not reasonable nor feasible for the mother to have the children at Melbourne Airport before a flight departure of 7.00pm on a Friday. Even this is very difficult. The children need to depart on a Friday on the weekend periods, but can delay that departure to a Saturday during term holidays, which can be the mid-Saturday in any event. This would spread more evenly the time they spend with their father. Furthermore, the father should spend time with the children on those two weekends in each term and not take up employment leaving them in the care of his mother or wife for any extended period. He has much other opportunity to work if he wishes and this time is limited and therefore precious.

1. The mother wishes to spend time with the children for a significant part of all the school holidays. She works overtime when the children are not with her to increase her annual leave entitlements. Her evidence is that she and the children enjoy these period, that they are qualitatively different to weekend time, and give her an opportunity to relax with the children and enjoy genuine ‘holiday’ time. The father’s proposal that the children now spend all or – as a secondary position – most of this time with him on the basis that the children desire such an arrangement, shows a lack of insight into their developing local peer group and community participation; a pushiness that is unrelenting and unproductive; and a failure to understand the children’s enjoyable and important emotional life with their mother. Melbourne is where their friends reside; their activities increasingly will be; and where their mother is present. It is in the children’s best interests to continue to share this holiday time between their parents – both of whom they love. And to do so with the certainty the orders as formulated provide, and with time to get ready for a new school term.

2. The mother has a better capacity than the father to promote the emotional needs of the children. Her approach to the responsibilities of parenthood shows greater understanding and commitment than that of the father. She has understood her role as a parent to provide necessary guidance, support and loving care in far greater measure than the father. The father gave evidence that he travels from South Australia and back (a 17 hour round trip), when one of the children “express distress” during a telephone communication, to spend time with them in the school grounds during their lunch break. He has done this at least six times a year. This puts enormous pressure on his children. Their distress is usual childhood development and passes quickly. But the father sees it in a more sinister light, claiming they are not settled nor happy with their mother. He simply won’t accept that they are, and he has, over many years, sought to undermine the mother’s care of the children. The mother is now fearful that he will place a lot of pressure on [Y] to have him express a wish to live with his father. The father should not attend at the school in the manner he does. The school may have a difficulty with it, especially in the secondary years. But importantly the mother needs to be consulted and agree to the father’s intrusion in that manner. If there is a genuine problem with one of their children, then the parties need to consult each other and adopt a joint approach in their dealing with that problem.  

3. I accept the mother’s evidence that “the children are the focus of my life”. She works hard to support them and provides a loving home environment. She also supports, and acknowledges, their loving relationship with their father. The children’s best interests are served by their remaining residing with her.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  21 June 2013