Campbell and Godfrey

[2011] FamCA 938

FAMILY COURT OF AUSTRALIA

CAMPBELL & GODFREY [2011] FamCA 938

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Application for review of Principal Registrar’s interim parenting orders decision – Review granted – Order that the Order of Principle Registrar be discharged

Family Law Act 1975 (Cth) s 60CC, s 61DA, s 65DAA

Goode and Goode (2006) FLC 93-286
MRR and GR (2010) 84 ALR 220

APPLICANT: Mr Campbell

RESPONDENT: Ms Godfrey

FILE NUMBER: SYC 4915 of 2011

DATE DELIVERED: 23 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Forrest J

HEARING DATE: 18 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Stacks Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraphs 1, 2 and 3, of the Order of Principal Registrar Filippello of 5 October 2011 are discharged.

2. The children B born … 2005, C born … 2007, and D born … 2009 shall live with the mother until such time as they are returned to live in Sydney which shall be by no later than 20 December, 2011.

3. The said children shall live with the father for the first half of the 2011/2012 New South Wales gazetted Christmas holidays save for the period commencing 2.00 pm Christmas Day and concluding 6.00 pm Boxing Day, at which time they shall be in their mother’s care and they shall live with the mother for the second half of such school holidays.

4. The mother will deliver the said children to the father in Sydney at the commencement of the said Christmas school holiday period and shall collect them from his home in Sydney at 2.00 pm on Christmas Day and return them to his home in Sydney at 6.00 pm on Boxing Day and the father shall deliver the children to the mother at her home in Melbourne at the commencement of the school holiday period during which they shall be in her care and the mother shall return the children to Sydney at the conclusion of the said school holidays.

5. From the commencement of the first school term in 2012, the child B born … 2005 shall attend school at the E School until otherwise agreed between the parties or ordered by this court, and the said three children shall live with their parents as follows:

   (a)In the event that the mother lives in the eastern suburbs of Sydney, then:

   (i)During school term with the father from Wednesday after school in the first week of term, until Monday morning before school in the next week of term, and as such each alternate week thereafter, and otherwise, they shall live with the mother; and

   (b)In the event that the mother does not live in the eastern suburbs of  Sydney, but elsewhere in Sydney, then:

   (i)During school term with the father and otherwise with the mother from after school on Friday until before school on Monday each second weekend;

   (c)In the event that the mother remains living in Melbourne, then:

   (i)During school term with the father and on one weekend in each calendar month in Melbourne with the mother when the father will arrange to fly the children from Sydney to Melbourne at his expense;

   (ii)With the mother at all other times as agreed between the parties including when the mother travels to Sydney subject to reasonable notice to the father;

   (d)And otherwise, in any event, with each of the parents for one half of each of the children’s school holidays being with the father for the first half of the holidays in even numbered years and with the mother for the first half of the holidays in odd numbered years.

6. The father shall, unless otherwise agreed between the parties in writing or ordered by this Court, continue to live in the eastern suburbs of Sydney.

IT IS FURTHER ORDERED BY CONSENT THAT

1. Within seven (7) days of the date hereof the mother shall be paid from the trust account of F Legal the sum of $20,000 and to the extent that it is necessary, each of the parties shall authorise F Legal to make such payment to her, the categorisation of such payment to be determined either by agreement between the parties in writing or order of this Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 4915  of 2011

Mr Campbell

Applicant

And

Ms Godfrey

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On Friday 18 November, 2011, in the judicial duty list, I heard and determined the competing applications of Ms Godfrey and Mr Campbell for parenting orders in respect of their three young daughters, namely B born in 2005, C born in 2007, and D born in 2009.  The girls are 6, 3 (almost 4) and 2 years of age respectively.

2. The competing applications were before me by way of an application brought by the father for review of the interim parenting orders decision of Principal Registrar Filippello of 5 October 2011.  Principal Registrar Filippello made orders that the three girls live with their mother and that she be granted leave to relocate from Sydney to Melbourne with them. At that time, the mother was already living with the three girls in Melbourne.

3. Principal Registrar Filippello also made orders providing for the children to spend time with their father for half of the school holidays and on one weekend in each calendar month in Sydney, with the mother to fly the children from Melbourne to Sydney at her expense for that purpose.  She made orders for the children to spend time with the father on other occasions by agreement between the parties including on occasions when the father might be able to travel to Melbourne.  Principal Registrar Filippello made a number of other orders including that the parties have equal shared parental responsibility for the children. 

4. Of course, a review of a Registrar’s decision is conducted as a completely fresh hearing.  A decision different to the one made by the Registrar can indeed be made and is not dependent upon proof of some error of fact or law on the part of the Principal Registrar. 

5. At the conclusion of the hearing before me, late in the afternoon that day, I made interim parenting orders that see the three girls returning to live in Sydney by the start of the 2012 school year and spending substantial and significant time with their father should the mother return to live with them in Sydney. Should the mother not return to live in Sydney, the orders I made provide for the children to live with the father and to spend one weekend per month with their mother in Sydney.

6. I had no time to give reasons for my decision on the day of the hearing and I informed the parties that I would give my reasons this week. After I informed the parties of the orders I intended to make the parties conferred and consented to a further order that the mother be paid $20,000 from money held in trust for the parties following the sale of their former Sydney home so as to facilitate her relocation back to Sydney.

7. These are my reasons for the decision I made.

A Relevant Chronology

1. The mother was born in the Country G and came to live in Australia in September 2000.  She became an Australian citizen in 2010.  The father was born in Australia and has, as I understand things, always lived here.

2. The two parties commenced living as a de facto couple in Sydney in 2001.   Their first daughter was born in 2005 and at around that time the couple purchased a property in the eastern Sydney suburb of Suburb E and it became their family home.  Their second and third daughters were born in 2007 and 2009. 

3. There is dispute between the parties as to the cause of their ultimate separation and as to the date that it occurred.  As this is a truncated interim determination of the matter, done on the papers and the submissions of counsel for the parties, without cross-examination, I am unable to make findings on these disputed matters of fact.  Suffice is to say that the parties’ de facto relationship, after experiencing some turmoil for some time, effectively ended some time in the first half of the 2011.  It seems also that there is no dispute that the parties have experienced significant financial difficulties as a family in the last few years.  The mother deposed to the financial stress being the cause of the breakdown of the relationship, whilst the father denied that and deposed to the fact that the mother had had a relationship with another person earlier this year that was part of the cause of the breakdown.

4. Whatever be the actual cause of the breakdown of the relationship, it appears to have been totally broken down by July this year by which time the parties had agreed to sell their Suburb E home and the mother had conveyed to the father her desire to move with the children to Melbourne. 

5. It is common ground that on the night of 12 July 2011 the mother and the father were communicating with each other, apparently in person as well as by telephone text message and by emails, even though they were living in the same house, which was their Suburb E home.

6. The mother informed the father that she had been offered a new position with her then employer, but in Melbourne instead of Sydney.   The evidence establishes that the father expressed initial disagreement with the mother’s desire to move the three girls with her to Melbourne.  The mother’s evidence is that the father then, later that same evening, actually agreed to her stated intention to move the girls with her to Melbourne and that she then went into work the next day and, on the strength of the father’s alleged agreement, told her employers that she accepted the offer to move to Melbourne.  For the father, it was conceded at the hearing before me that he said something to the mother on the evening of 12 July that was reasonably construed by her as an indication of the father’s acceptance of her proposed move to Melbourne with the three girls, even though he says in his affidavit evidence that he made it clear in their conversation of 12 July that he did not consent to the relocation of the children. 

7. However, by email on 22 July 2011 the father made it clear to the mother that he was not happy with her proposal to relocate the girls to Melbourne and he put an alternative proposal to the mother that, in his view, would enable her to stay in Sydney with the three girls.  Nevertheless, the mother went about commencing to make arrangements for her move with the girls to Melbourne, including making bookings for a removalist in late August and informing their second daughter’s day care provider that she would be leaving.  

8. On 1 August 2011, the mother received from the father a letter written on his behalf by solicitors which dealt comprehensively with the breakdown of their relationship and categorically put to the mother the father’s position that he was not consenting to the children moving from Sydney.  In that letter, the mother was asked to let those solicitors know if she intended to move to Melbourne despite being advised of the father’s position so that proceedings could be commenced in the Family court of Australia restraining such a move. 

9. On 5 August 2011, contracts were exchanged for the sale of the family’s property.

10. On 15 August 2011, the mother filed an application in this Court in which she sought the Court’s leave to relocate from Sydney to Melbourne with the children of the relationship. That application was filed on her behalf by solicitors representing her at the time.  The mother’s application was served on the father on 18 August 2011 and the father filed a response on 19 August 2011 in which he sought to restrain the mother from moving to Melbourne.  On filing, the mother’s application was given a return date of 5 October 2011for the hearing of her application for leave to relocate with the girls to Melbourne. 

11. Despite knowing that the father opposed her intention to move the children to Melbourne and having made application to the Court for leave to be able to move the children to Melbourne and knowing that her application for such leave was set down for hearing in the Court on 5 October 2011, the mother nevertheless went ahead with her move as she had previously planned on 29 August 2011.  She took all three children and moved to Melbourne on that day.

12. Although he had filed his response on 19 August, the father only served the mother with that on 31 August, after she had moved.  Notwithstanding that fact, as I have already said, I have absolutely no doubt that the mother was aware of the father’s opposition to the mother taking the three girls to Melbourne to live before she went. No other conclusion is available.  In addition, as I have noted already, the mother was legally represented at the time and had filed an application seeking leave to move before she actually moved.  Curiously, she went ahead and moved without such leave having been granted, after the matter was listed for hearing on 5 October but before it was heard.

Some Further Relevant Background Facts

1. Both the mother and the father are professionally employed.  The father is, with a business partner, a joint owner and director of a small business with offices in the Sydney CBD.  The mother currently works for a company called “H Pty Ltd”.  Before she left Sydney the mother was employed as general manager of the H Pty Ltd office in Sydney, which is that company’s head office in Australia with a staff of approximately 75 people.  The mother moved to Melbourne to take on the position of managing director of the Melbourne office of H Pty Ltd which is a smaller office with a staff of 36.  The mother herself deposed to the fact that the move to the Melbourne office could be considered a backwards move for her.  She says she was motivated by the ability to put herself in a better financial position by moving to Melbourne. 

2. Apart from taking maternity leave from her employment on the occasions that the three girls were born, the mother has otherwise worked full time during the relationship between the parties.  So too has the father.  When the mother has been working the parties hired a full time nanny to care for the children. The mother’s evidence, that I do not understand to be disputed, is that the couple employed six nannies in the past six years on a full time basis. 

3. The father’s evidence is that during the time when he was not at work he was heavily involved in caring for their children.  The father sets out in his affidavit evidence examples of the sort of involvement that he had with the children’s day to day care.  The mother does not assert in her evidence that he did not assist in caring for the children but instead says that she was the person principally responsible for the parenting arrangements that the parties put in place with respect to the children over the years.

4. No evidence was put before the Court of any of the nannies who were employed by the parties during their relationship casting any particular light on the parenting involvement and capacities of the respective parties.  The father relied on an affidavit of his sister whose evidence supports the father’s evidence that he has the requisite capacity to care properly for his three girls. 

5. Within days of arriving in Melbourne the mother had located a rental property in Suburb I into which she and the girls moved.  She enrolled the eldest girl, B, in a primary school and had a nanny hired to care for the girls whilst the mother was at work each day. 

6. On the other hand, in Sydney the parties’ home was sold, substantial debts were paid out from the sale proceeds, the balance retained in a solicitor’s trust account pending property division between the parties and the father found a suitable home to occupy on a house sitting basis for an acquaintance of his until the middle of 2012.  That home is also in Suburb E, only minutes from the Primary school B had been attending and the childcare centre that C had been attending.

The Parties’ Proposals

1. The father’s application is for an equal shared parenting arrangement whereby the three girls live with their parents on a week about basis.  Of course, this would necessitate the two parties living within a reasonable proximity to each other so that B’s schooling would not be disrupted.  For the orders that the father seeks to be put in place, the mother would need to return to Sydney and, at least in the first instance, return to live in the Eastern suburbs area. 

2. For her part, the mother seeks parenting orders that have the children living with her in Melbourne and being flown to Sydney to spend a weekend with their father on one occasion each calendar month as well as for half of the school holidays and other times as may be agreed between the two parties as opportunities present.

3. At the hearing of this matter, I was informed by counsel for the mother that if it was determined that it was not in the best interests of the children to continue living in Melbourne with the mother and to continue seeing their father as proposed by the mother, and that their best interests, on an interim basis, were best served by an order returning them to live in Sydney, then the mother would herself return to live in Sydney and again find work here. I acknowledge and accept that this was not her preferred position but it did demonstrate, in my view, an ultimate prioritising by the mother of the children’s needs ahead of her own. 

The Principles and their Application in this particular Case

1. The Court is asked to make parenting orders.  The making of parenting orders triggers the application of a presumption that it is in the best interests of the children for each of the parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.[1]

   [1]See s 61DA(1) and s 61DA(2) of the Family Law Act (Cth) 1975 and the decision of the Full Court in Goode and Goode (2006) FLC 93-286 at paragraph 65.

2. In this particular case both of the parties seek an order conferring equal shared parental responsibility on each of them and no submission is made by either of them that such an outcome would not be in the best interests of the children.  On the evidence that I have before me, I do not consider that there is any reason why such an order would not be in the best interests of the children in this case. 

3. As such, I must then turn to consider making an order that the children spend equal time with the parents unless it is contrary to the children’s best interest as a result of consideration of one or more of the matters in s 60CC or it is impracticable.[2] 

   [2]See s 65DAA.  See also the High Court decision in MRR and GR (2010) 84 ALR 220

4. At this point in time, the three girls have been living with their mother in Melbourne since the end of August, namely for almost four months.  They have spent one weekend a month with the father in Sydney, a longer period in the September/October school holidays in Sydney with him and some additional time when he has visited them in Melbourne.  I do not consider that making orders that provide for them to immediately transition to an equal time shared care arrangement with each of their parents is at this interim stage in their best interests. That can not be immediately facilitated in any event.

5. However, I accept that the father has had a very significant involvement in the lives of these three little girls up until the point of separation and the relocation of the girls to Melbourne. I do not consider that it is in their best interests, while final parenting proceedings remain pending, for them to be living in Melbourne, so far removed from the opportunity to spend a lot of time with their father, particularly when, with young children, frequency of contact with the significant persons in their lives, is an important ingredient in the maintenance and development of meaningful relationships. I do not consider that one weekend each month with their father meets their best interests at this immediate point in time. Nor do I consider that flying backwards and forwards between Melbourne and Sydney for such weekends meets their best interests.

1. Making orders that have the girls continuing to live with their mother in Melbourne so soon after the separation of their parents would provide interim arrangements that remove them from the opportunity of spending regular, frequent time with their father in his everyday, domestic setting. Such orders would also remove B from being able to continue attending the school that she was attending since she started school, remove C from the day care centre that she was attending and remove all three girls from the only community that they had lived in their entire lives until the point of separation of their parents when they were removed unilaterally by their mother and taken to Melbourne without their father’s approval or prior sanction by this Court.

2. I accept the father’s evidence that B can return to the school she was attending before the separation of her parents and that C can return to the same childcare centre that she was attending. I consider such return to be in their best interests at this time of turmoil in their lives brought about by their parents’ separation and the quick sale of their family home.

3. As I am not convinced that an equal shared care arrangement is, at this point in time in the best interests of the three girls, I must consider whether the girls spending substantial and significant time, as that term is defined within s 65DAA(3), with each of the parents, would be in their best interests and not impracticable. 

4. I accept, on the evidence that I have before me, that each of the mother and the father is a capable and loving parent of these three young girls and that each has relationships with the three girls of such a nature that it is in the girls’ interests for those relationships to continue to be facilitated, encouraged and fostered as far as possible.  I am, at this interim stage, satisfied that parenting orders that provide for the girls to spend substantial and significant time with each of their parents are indeed in their best interests. 

5. That being my determination, I must also consider whether the children spending substantial and significant time with each of their parents is reasonably practicable.  I do that, in this case, not just against a background of fact where the mother says “I am living in Melbourne and will continue to live there” and the father says “I am living in Sydney and will continue to live there”, as such contrasting positions would mean that I could necessarily not find that substantial and significant time with each parent is reasonably practicable having regard to s 65DAA(5). 

6. But rather, as I have already noted, the mother’s alternate position was that if I was to determine, as I have, that it is in the best interests of these three little girls to return to live in the eastern suburbs of Sydney and to go to the same school and child care centre that they were attending before the separation and move to Melbourne, that she would return to live in Sydney so that the parenting arrangements, particularly the time the girls spend in their mother’s care would not be too disrupted.

7. I am conscious of the fact that it is not the preferred option for the mother to do that and that she has secured employment and rental accommodation and assistance from a nanny in Melbourne.  However, I am also satisfied that the mother is likely to be able to find suitable employment if she returns to Sydney and that she is likely to be able to find suitable accommodation in the Suburb E area or broader eastern suburbs of Sydney.  The orders that I have made effectively give her until the commencement of the school year in late January 2012 to find suitable employment and accommodation in Sydney to move back to. I consider that a reasonable period of time in all the circumstances.

8. I am satisfied that if the mother obtains suitable accommodation in the Suburb E or eastern suburbs area it will be reasonably practicable for the three girls to live with their mother and to live with their father for periods that constitute substantial and significant time. 

9. The orders I have made provide for the girls to live with their father from Wednesday after school to Monday before school each alternate week during school term and for half of all school holidays in circumstances where their mother also lives in the eastern suburbs of Sydney.

10. As I have determined that it is in the best interests of the girls for them to be returned to the Suburb E area, in particular including B to the school that she was attending before she left Sydney, I consider that if the mother does not herself return to live in Sydney that the girls should nevertheless return to live with their father to live in Suburb E, visiting their mother in Melbourne once a month for a weekend until such time as final parenting proceedings can be determined.  Should the mother decide to return to live in Sydney but not within the Suburb E area or greater eastern suburbs area then I am still satisfied that it is in the girls’ best interests to live with their father in that area and to spend alternate weekends from after school Friday to before school Monday with their mother. 

11. I am satisfied that the father has the capacity to care for the girls in those circumstances and that they would cope with the changed care arrangements that regime would impose, particularly as they would be back in Suburb E, the only community they have ever lived in. Such change would not be the ideal arrangement but that would reflect the fact that the mother herself had chosen not to return to Sydney to live or had chosen to return to live in Sydney but not in the eastern suburbs. As I have said, I do not expect the mother to make either of those decisions in any event.

12. In the circumstances presented in this interim determination I have been particularly moved by the requirement to consider the benefit to the children of having a meaningful relationship with both of their parents and the reality in this case, particularly given the relatively young ages of the three girls, that the meaningful nature of the relationships they have with their father would, in my view, be likely to be seriously jeopardised if they are allowed to continue living in Melbourne at this early stage after separation as unilaterally determined by their mother. 

13. The orders that I have made allow for the three girls to remain living in Melbourne with their mother until B finishes school in around four weeks time.  I do not consider it in B’s best interests to remove her from the school that her mother placed her in when she moved the girls to Melbourne this close to the end of the school year.  I consider that returning her to the school that she was attending in Suburb E at the start of the 2012 school year will be far less unsettling for her. 

14. The orders that I have made will allow the children to return to Sydney at the start of the school holidays to spend the first half of the school holidays with their father before spending the second half with their mother wherever she might be living.  They will then be required to return to Sydney to live at the end of the school holidays and just prior to the 2012 school year commencing.  As can be seen from the orders that I have made, the living arrangements that will then take effect for the three girls will principally be dependent upon the decision that the mother makes in respect of her return to Sydney and whether she has been able to return by that point in time. 

15. Should the mother return to Suburb E or the greater eastern suburbs area the children will continue to principally live with her during school term, spending five nights a fortnight in their father’s care.  If the mother returns to Sydney, but not the eastern suburbs, then the children will principally live with their father, spending alternate weekends with their mother.  I am satisfied on the evidence that is before me that if the mother makes a decision that she will not live in the eastern suburbs or that she will not return to Sydney at all that it is indeed in the best interest of the girls that they live back in Suburb E in the principal care of their father.  As I have stated, I am satisfied on the evidence that that would not be contrary to their best interests in those circumstances. 

16. The orders that I have made provide for the children to spend time with their mother overnight from Christmas Day to Boxing Day this year.  I am also conscious that the orders I have made provide for the father to have the first half of the Christmas school holidays this year as well as in 2012 should matters not otherwise be finalised by agreement between the parties or other order of this Court before then. 

17. The orders I have made reflect my view that it is in the best interests of the children to spend a significant amount of time, namely, the first half of the school holidays, with the father as soon as possible after the school year finishes.  Making orders that provide for him to have the first half of the 2012/2013 school holidays was simply done to keep it synchronised with the order that the children spend the first half of the school holidays with the father in even numbered years and the first half of school holidays with the mother in odd numbered years. 

18. I consider that the orders that I have made, although no doubt causing the mother a great deal of disappointment, provide, at least on an interim basis, these three very young girls with the very best opportunity available to them, in all the circumstances, to maintain a certain degree of stability in their lives whilst at the same time maintaining and being allowed to develop meaningful relationships with both of their parents.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 November 2011.

Associate:

Date:  24 November 2011