Clyde & Herman

[2008] FamCA 805

FAMILY COURT OF AUSTRALIA

CLYDE & HERMAN [2008] FamCA 805

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal application – Stay application – Application of relevant principles
FAMILY LAW – CHILDREN - Best interest of the child  – Family violence issues- Interim parenting orders – Jurisdiction

Family Law Act 1975 (Cth) ss 45, 60CC, 60CA, 65AA, 60CC(2), 60CC(3), 60B, 61DA

ZP v PS (1994) 181 CLR 639
Goode and Goode (2006) FLC 93-286
Pelerman (2000) Fam LR 505
Bain Pacific Association & Ors and Kelly & Ors (2006) FLC 93-270

APPLICANT: Ms Clyde

RESPONDENT: Mr Herman

FILE NUMBER: SYC 5116 of 2008

DATE DELIVERED: 5 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 4 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: M A Gillies

SOLICITOR FOR THE APPLICANT: Meehans Solicitors

COUNSEL FOR THE RESPONDENT: J Dupree

SOLICITOR FOR THE RESPONDENT: Russo and Partners

Orders (4 September 2008)

1. That the father’s applications for a stay of proceedings and summary dismissal of the parenting proceedings instituted by the mother are dismissed.

2. That until further order the two children of the parties’ relationship, namely S born … November 1997 and R born … July 2001 (“the two children”) live with the mother.

3. That the substantive proceedings between the parties be expedited.

4. It is requested that the Deputy Chief Justice assign a Judge to hear the substantive proceedings at the earliest possible time on a date and time to be fixed.

5. That the proceedings are adjourned to 11.00am, 5 September 2008 for the purpose of making further parenting orders, directions and giving oral reasons for judgment.

6. That the passports of the two children be surrendered and deposited by the solicitor for the father with the Registry Manager, Sydney Registry of the Family Court of Australia as soon as possible today to be so held until further order.

Orders (5 September 2008)

1. That whilst the father is in Australia the parties ensure that he is able to spend time and communicate with the two children of the parties’ relationship, namely S born … November 1997 and R born … July 2001 (“the two children”) as follows:

   (a)During each school term on alternate weekends from 5.00pm Friday to 5.00pm on the following Sunday, the first occasion of which shall take place upon the father giving the mother seven (7) days written notice.

   (b)For the first half of each school holiday period at the conclusion of each school term commencing at 9.00am on the first day and concluding at 5.00pm on the last day.

   (c)For such alternative or other periods as the parties may agree upon from time to time.

   (d)Telephone and other electronic means of communication at all reasonable times.

2. That for the purpose of Orders 1(a) and 1(b) the location for change-over of the care of the two children from the mother to the father and from the father to the mother shall be in front of her residence unless otherwise agreed between the parties.

3. That each party shall keep the other informed in writing of the details of her or his residential address, landline telephone number, mobile telephone number, and email address (if any).

4. That in the event of the two children or either of them becoming seriously ill or injured whilst in the care of one of the parties then that party shall immediately inform the other party of the detail of such illness or injury including the name, address and telephone number of the relevant medical practitioner and/or hospital.

5. That each of the parties is restrained from making any derogatory or critical comments about the other and from discussing evidence or possible orders given or which may be made in the pending parenting proceedings between the parties to or in the presence or hearing of the two children or either of them.

6. That until further order the mother and/or the father and their servants or agents are restrained from taking or sending or attempting to take or send the two children S born … November 1997 and R born … July 2001 from Australia AND the Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these Orders.

7. That the Registry Manager shall immediately notify the Marshal and the Australian Federal Police Family Law Team at Sydney of these Orders as soon as possible by providing a copy of these Orders to them.

8. That until further order the Australian Federal Police place the names of the two children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the two children from Australia in breach of these Orders.

9. That the two children be legally represented by an independent children’s lawyer and for that purpose the Legal Aid Commission of New South Wales by its Proper Officer is requested to arrange such representation.

10. That on or before 5.00pm, 18 September 2008 the parties cause the Legal Aid Commission of New South Wales to be furnished with copies of all applications and affidavits filed on his or her behalf in these proceedings by forwarding such copy documents to the Senior Solicitor, Family Law Litigation of the Legal Aid Commission of New South Wales.

11. That the Manager, Child Dispute Services, Sydney Registry of the Family Court of Australia or her nominee shall prepare a family report dealing with the matters indicated on the annexed form AND the parties shall attend upon the family consultant so nominated either in person or by telephone and provide such information to the family consultant as he or she requests and which is reasonably necessary for the family report to be completed and submitted for release to the parties and the independent children’s lawyer.

12. That the Manager, Child Dispute Services or her nominee is requested to ensure that the preparation and completion of the family report is expedited so far as it is possible to do so.

13. That the substantive proceedings be listed for directions before the Hon. Justice Rose at 9.30am on 3 October 2008.

14. That the application of the father for orders sought by him in paragraphs 9 and 10 of his Response to an Application in a Case dated 3 September 2008 be listed for further directions on the last-mentioned date.

15. That each of the parties has liberty to restore the proceedings to the list for the purposes of seeking further directions and/or setting aside, suspending or variation of all or any of the parenting orders and injunctive relief granted this day upon seven (7) days written notice being given.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5116 of 2008

Ms Clyde

Applicant

And

Mr Herman

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the mother by her Application in a Case filed 1 September 2008 has sought interim parenting orders in relation to the two children of the parties and also certain injunctive relief more particularised in that application.

2. The mother has also sought final parenting orders in her Application for Final Orders filed 1 September 2008.

3. In addition, the mother filed a Notice of Child Abuse on 1 September 2008.

4. The orders sought by the mother have been opposed by the father.

5. The orders sought by the father are as set out in his Response to an Application in a Case, whilst not formally filed in the Registry, has been accepted by me as having been filed in court and was referred to during the course of the hearing before me yesterday.  The father has also sought orders that the mother's final and interim applications be stayed and in the alternative that they be summarily dismissed.

Historical background

1. The brief historical background to this matter is as follows:

2. The parties commenced to cohabit in November 1996 in London in the United Kingdom.

3. The parties never married.

4. The mother is 37 years of age and the father is 44 years of age.

5. The two children of the parties’ relationship are S born in November 1997 and R born in July 2001 born in July 2001 (who I shall refer to as “the two children”).

6. The two children were born in London.

7. The two children have lived with the parties until they finally separated in Australia on 11 August 2008.

8. The mother's Affidavit sworn 29 August 2008 sets out the different parts of the world in which the parties together with the two children have lived and it is clear that the chronology, which is not the subject of dispute, in the evidence before me demonstrates that the two children have had an international history of residences being in the United Kingdom, Spain, North America and Australia.

9. The two children and the parties lived in Spain from about August 2007 until June 2008 when they travelled to Australia.

10. There have been past proceedings between the parties in Spain as referred to in the affidavit evidence as “separation proceedings”.  In part of the affidavit evidence there is a reference to an order or orders having been made by a Spanish court.  A number of documents were annexed to the husband's affidavit and it is common ground that those documents are in Spanish and, if not wholly then at least in part, are documents which are copies of court documents from the relevant Spanish court.  Those documents were translated in part only by the husband.

11. I raised this issue with counsel for the father as to the weight that I should give to a court document, not only translated by the father as opposed to an independent expert, but translated in part only.

12. I was not informed by counsel for the father that the translations were either accurate, or if accurate, whether they should be given weight, notwithstanding the lack of translation of the remainder of the relevant documentation.

13. Counsel for the father made a valiant effort to take me through such of the documentation which would lead to a conclusion that the copies were indeed court documents between the parties, and that inferentially therefore, the father's translation should be accepted because there was no real dispute in the affidavits as to the translation which he provided.

14. I do not accept that approach.

15. In doing so, I do not criticise the father or his legal representatives.  Clearly, they had only a short time within which to prepare for these proceedings and it is also apparent that the father's solicitor has applied herself in a commendable way to ensuring that a substantial affidavit of the father was prepared and could be sworn and filed in the proceedings given the short time available for that purpose.

16. Nonetheless, in view of the importance of the documentation, given that it related to proceedings between the parties in Spain, albeit in 2006, the lack of common ground as to whether or not those proceedings are still pending, and if so what orders, if any, have been made in recent times, in my view, it would be unreliable to give any weight to a partial translation of those documents as appears in the father's affidavit.

17. It must be remembered that the proceedings before me are for interim parenting orders, save and except for the father's application for a stay of proceedings and for summary dismissal.

18. Consequently, in view of the orders made yesterday by me dismissing the father's two applications for a stay and summary dismissal, there will be an opportunity for a full and independent translation of those Spanish court documents by an official translator.  Evidence of those documents can then be adduced in a subsequent final hearing in the event that the parties have not settled the parenting issues between them in the meantime.

19. Before proceeding with the Reasons for Judgment in relation to all of the applications in respect of which I heard submissions yesterday, I emphasise that notwithstanding that Spain and Australia are signatories to the Hague Convention[1], it was confirmed to me by counsel for the father that no application is before me for orders pursuant to the Hague Convention reflected in the relevant Family Law Regulations.[2]

    [1] The Civil Aspects of International Child Abduction 1980

    [2] The Family Law (Child Abduction Convention) Regulations 1986

20. Consequently, the applications that I have had to determine have been the father's application for a stay of proceedings, his application for summary dismissal, and the parties’ respective applications for interim parenting orders.

The father’s applications

1. I will now turn to the father's application for a stay of proceedings and his application for summary dismissal.

2. So far as the application for a stay of proceedings is concerned, the power to order a stay is provided in s.45 of the Family Law Act and otherwise complemented by the relevant Rules.  The power is one which provides a wide discretionary power to order a stay, subject to the particular application and the facts in a given case.

3. In addition, it is well established that a superior court of record has an implied power to control its own proceedings, including ordering a stay of proceedings in particular circumstances which includes but is not limited to a case where a court is persuaded that the proceedings sought to be stayed are vexatious, oppressive and/or an abuse of process.

4. The gravamen of the submissions made by counsel for the father in support of the stay application is that the proceedings attract the ground to which I have referred in the previous paragraph.

5. Counsel for the father has submitted that the proceedings are an abuse of process given that the parties have been engaged in relevant proceedings in Spain and that those proceedings remain pending.  In addition, it is submitted that the travel to Australia, the separation between the parties, and the institution of proceedings in this Court represent, as it were, a contrived process which implicitly is not bona fide.

6. There is no issue that in the past the parties have been engaged in proceedings, being the separation proceedings, in a Spanish court.

7. What is not clear is whether those proceedings are pending, and if so, what are the precise issues that remain for determination by a Spanish court and what orders, if any, are sought by the father in those proceedings.  That material is crucial to not only the stay application, but is a relevant matter that would have to be taken into account in the parenting proceedings in this Court, subject to the weight which that matter may attract.

8. Consequently, I am not in a position to make any findings in relation to the proceedings in Spain between the parties due to the lacuna in the evidence to which I have referred.

9. The nature of the proceedings before me being heard on an interim basis and on “the Papers” so far as the stay application and the application for summary dismissal are concerned, have not permitted various allegations of fact which are in controversy to be tested due to the absence of cross examination.

10. I should add at this point that neither party, through counsel, sought leave to cross examine the other party.  As a result the matter has proceeded for determination on the Papers and having regard to submissions made by counsel.

11. The evidence of the mother being untested, and therefore to be considered at face value, is set out in a detailed plausible fashion.  It encompasses a host of matters that are relevant in terms of whether or not the case has been brought on a bona fide basis.  Counsel did not refer me to any aspect of that evidence which would demonstrate that the proceedings are indeed vexatious or oppressive or an abuse of process.

12. I was referred to a statement provided by the mother to the police, apparently in relation to possible proceedings by the police for an apprehended violence order.

13. Counsel was correct in stating that the statement provided by the mother to the police contains little in terms of family violence so far as the two children are concerned or either of them, and essentially is not persuasive in relation to the issue of family violence.

14. If the only evidence of the mother was represented by her police statement, then the prospects of success by the father in relation to the various submissions which I heard yesterday would have had more cogency.  However, the mother's affidavit, to which I will subsequently refer, sets out in considerable detail her allegations of family violence and abuse.

15. I am not sitting as a Local Court to determine the merits of apprehended violence proceedings that have been brought by the police.  Indeed, the police are not parties to these proceedings.  These are civil proceedings between the parties to the relationship and I have to consider all of the evidence before me, as opposed to a selected portion of it represented by a police statement.

16. Consequently, I have not been persuaded on those submissions that the proceedings are an abuse of process or are vexatious or oppressive.

17. Counsel also referred me to the High Court's decision in ZP v PS.[3]  I was taken to particular passages of the various judgments in that case and in particular the joint judgment of Dean and Gaudron JJ.

    [3] ZP v PS (1994) 181 CLR 639 at 659

18. It was submitted by counsel for the father:

    (a)that given the children have a background of having lived in Spain,

    (b)that they recently arrived in Australia,

    (c)that there were paid return air fares envisaging a return to Spain yesterday afternoon, and

    (d)that there have been and remain proceedings between the parties in Spain,

    this represented a clear case for, in effect, a summary order being made for the proceedings to be dismissed, or for the proceedings to be stayed pending the departure by the two children with the father and/or the mother to Spain in accordance with the return fares which have been organised.

19. The judgment, to which I have referred, places emphasis upon the approach that the Court may take if it considers that the welfare of a child is such that “prima facie requires that a foreign forum should determine the custody of the child”[4] and I interpolate, it can only be in an exceptional case that a parent's refusal to litigate the issue in the foreign forum can affect that view.  That part of the judgment is part of the joint judgment of the then Chief Justice Sir Anthony Mason, Toohey and McHugh JJ.

    [4]ZP v PS (1994) 181 CLR 639 at 659 per Mason CJ, and Toohey and McHugh JJ

20. I was referred specifically by counsel for the father to the following passage which appears in the joint judgment of Dean and Gaudron JJ.  Their Honours, having stated that in a particular case the matter may be determined on the papers, also stated the following:

    There may be cases where preliminary welfare questions can be answered in favour of the foreign Court simply by having regard to the earlier custodial arrangements and the circumstances under which the child was brought to Australia.  That will usually be the case if a non-custodial parent unilaterally and unlawfully removes the child from a long-established stable and secure environment.  Cases of that kind will often be determined on the papers, or at least without investigation of issues beyond those involved in the child's presence in Australia.

    However, other cases may not be so clear-cut: they may require a determination of matters going to the ultimate welfare of the child.  A wider examination of that kind will be required if, for example, there is some feature of the earlier arrangements which appears not to be in the child's best interests, and that feature is not likely to be remedied by the courts of the other country.  Usually that will require resolution of contested issues of fact and not merely a determination ‘on the papers’.[5]  (Emphasis added)

    [5] Ibid at 671 per Dean and Gaudron JJ

21. It was emphasised by counsel for the father that the matter before me is indeed a clear cut case, and as a consequence the appropriate orders should be made to enable the two children to return, at least with the father, to Spain.

1. I am not persuaded on the evidence before me that this matter is clear cut.

2. The reasons are that, first of all, I do not have in evidence before me the parenting orders if any that have been made in the Spanish court, and in particular those for recent years, that is since 2006.  Further, that I have no evidence, as I have already stated, of a translation of the whole of the Spanish court documents.

3. That leaves me in the position where I do not know what issues, if any, remain to be determined in the Spanish court so far as the two children are concerned, let alone the orders that each party may still be seeking which have yet to be determined by that Court.

4. The next matter is that it is clear from the chronology in the mother's affidavit, earlier referred, that since the birth of the two children they have lived in various international locations.  The last time they resided in Spain was for a period of about 10 months.  Before that they lived for approximately 13 months in London, and prior to that for a period of seven months in North America.  Previously their places of residence, as opposed to whether or not it was habitual residence, have been in the United Kingdom or Spain.

5. Therefore it is not clear to me on a prima facie basis that the forum represented by a Spain court is one which should be engaged at the earliest opportunity.

Family Law Act 1975 (Part vii)

1. The other matters that I take into account are that not only is the mother's evidence that she now desires to live in Australia permanently, but there is very detailed evidence in her case of family violence and abuse.

2. So far as making orders which may enable the two children to accompany both or either of the parties to Spain, that requires me to make a parenting order.

3. Pursuant to Part VII of the Act which came into force on 1 July 2006, I am required to make orders that are in the best interests of the two children having regard to the evidence before me, such as it may be, and to apply for that purpose the primary and additional considerations that are set out in s.60CC.

4. The Full Court in Goode and Goode[6] emphasised that for an interim application, as well as final applications, the interpretation of the legislation is such that I must apply all of the relevant considerations and not merely decide the matter on a summary basis.

   [6] Goode and Goode (2006) FLC 93-286

5. As a result, to make a parenting order that is in the best interests of the two children requires me to make findings on the evidence before me that attracts the relevant considerations in s.60CC.

6. It is for those reasons that I have refused the application for a stay of proceedings.

The father’s application for summary dismissal

1. So far as the father's application for summary dismissal is concerned, the well‑established principles that guide the determination of such an application were reviewed and set out in the Full Court's judgment in Pelerman[7] and subsequently followed by a later Full Court decision in Bain Pacific Association & Ors v Kelly[8].

   [7] Pelerman (2000) Fam LR 505 at 511

   [8] Bain Pacific Association & Ors and Kelly & Ors (2006) FLC 93-270

2. Essentially, the task before an applicant for summary dismissal is to persuade the relevant court that the case brought by the respondent to such an application is not merely weak, but doomed to failure.  That submission is restricted to the evidence adduced by the respondent to the application as opposed to the evidence of both parties, subject to matters that are admitted or agreed or not the subject of controversy which do not otherwise appear in the respondent's evidence.

3. In support of the application for summary dismissal a number of the matters which counsel for the father submitted, as he quite properly recognised, overlap with the stay application and are also of relevance to this application.

4. I have concluded that the application for summary dismissal will be dismissed.  Indeed, the appropriate order was made yesterday on the basis that, given time constraints, reasons for judgment would be given today.

5. The material adduced by the mother provides in detail, not only a historical background, but matters for consideration for the purpose of s.60CC.

6. It was contended on behalf of the father that the mother’s case must be doomed to failure because there is an absence of evidence as to where she will live with the two children and implicitly how and where they will be educated.

7. My review of the affidavit evidence of the mother is such that I accept the submission by counsel for the mother that her affidavit does provide details of her proposals in that regard.

8. Consequently, I do not accept the submission made by counsel for the father.

9. My attention was directed to consider the allegations of violence.

10. In that regard counsel understandably placed considerable store upon the statement provided to the police, to which earlier reference has been made.  That may represent an interesting platform for cross examination.  However, on the material before me the detailed evidence of family violence, in a much more extensive way, is set out in the mother's affidavit and it is that affidavit that I must take into account as well as the statement the mother made to police.

11. It must be remembered, as I have already emphasised, that the allegations are untested because the proceedings before me are for interim orders subject to the application for summary dismissal and a stay to which I have referred.

12. Amongst the significant amendments to the Act as a consequence of the Shared Parenting Responsibility Bill passed by the Parliament in 2006 was to place at the forefront - what is described as a primary consideration.  That primary consideration, which all judicial officers of the Court must apply their minds to, is the evidence of family violence and abuse for the purpose of protection of children from such conduct or behaviour.

13. The affidavit of the mother is replete with detailed evidence in that regard.

14. Whether that evidence will be accepted after it has been tested at a final hearing is another matter.  However, that material presently before me on an interim basis leads me to conclude that I cannot reach an ultimate determination that is inherent in an application for summary dismissal, namely, that the mother's case is doomed to failure.

15. Consequently, the father's application for summary dismissal has been dismissed.

Interim parenting orders

1. With regard to the proceedings for interim parenting orders s.60CA of the Act makes it clear that:

   In deciding whether or not to make a parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.[9]

   [9] Section 60CA

2. That provision is re-emphasised in s.65AA.

3. For the purpose of determining what is in a child's best interests, I am required to consider the matters in ss60CC(2) and 60CC(3).

4. I am also required to consider the matters in s.60B which set out the objects of the provisions of Part VII of the Act and the principles that underlie them.

5. The principles underlying those objects, in summary, include:

   (a)a child having the right to know and be cared for by both parents;

   (b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;

   (c)the joint sharing by parents of duties and responsibilities in relation to their child;

   (d)the imperative for parties to agree about future parenting of their child;  and

   (e)a child’s right to enjoy its culture including with others who share that culture.

6. The benefit to a child of parents having a meaningful involvement, and other matters referred to in s.60B, are emphasised to be consistent with the best interests of the child and that is an important exception to the principles that underlie the objects summarised in the previous paragraph.

7. To that extent, the Family Law Amendment (Shared Parental Responsibility) Bill 2006 in relation to children, continue what has sometimes been described as the over-arching principle, namely that the best interests of the child is the paramount consideration and the finding of fact that is required for the purpose of making a parenting order.

8. As I pointed out to counsel for the father during the course of submissions, it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of these proceedings with one exception, so far as presumption is concerned.

9. Section 61DA sets out the new amendment to the Act, namely that there is a presumption that equal shared parental responsibility can be rebutted on one or other of the grounds set out in sub-sections (3) and (4).

10. I should state at this point of the judgment that no submissions were made to me in relation to s.61DA, or whether or not the presumption has been rebutted.

11. Consequently, as the section does not require an order to be made, in the absence of any order for shared parental responsibility, the presumption applies and in this case to both parties so far as equal parental responsibility for the two children.

12. Dealing with the various matters that arise for consideration under s.60CC(3), I make the following findings.

13. So far as the views of the two children are concerned, there is an absence of direct evidence of those views.  However, it does not appear to be disputed that the two children have a loving relationship with each of the parties, save and except for the allegations made by the mother as to violent and/or abusive conduct by the father to the two children and in particular the eldest child.

14. With regard to the nature of the relationship of the two children with each of the parties and others, I have referred to the nature of that relationship.

15. There is evidence before me of the two children's relationship with the maternal grandmother.  There is no evidence before me which would lead me to conclude that I should make a finding other than that they have at least a very fond relationship with her.

16. So far as the willingness and ability to facilitate and encourage a close and continuing relationship between the two children and each of the parties, counsel for the parties have submitted that they will activate such steps that are necessary to ensure that such relationship will continue.

17. On behalf of the father it was submitted that if the mother returned to Spain then she could live with him and the two children in the home that they previously occupied in Spain.

18. On one view of it, this was a bizarre proposal against a background where there has been obvious acrimony between the parties, and where the relationship has deteriorated to the point that not only have there been proceedings between them in Spain but there are now proceedings in the Australian courts.

19. Alternatively, it is proposed that the father will rent suitable premises for the mother.

20. Where the children would live with each party and precisely what periods of time they would spend with each of them was not developed in either the evidence or the submissions made on the father’s behalf.

21. So far as the mother is concerned, her proposals are that she will facilitate precise periods of time and communication as set out in her application in a case.

22. On the face of it, I accept that each of the parties does have a willingness and ability to facilitate and encourage a close and continuing relationship with the two children, although on their own terms, and in their own particular situations.

23. This clearly is a matter which may need to be explored in the substantive hearing.

24. So far as the effect of changes in the circumstances of the two children, including separation from each of the parties, and any other person with whom the two children have been living, I am left in a position on an interim basis where that matter cannot be considered in much detail.

25. The two children are living with the mother in Australia.  I do not have a family report.  I do not have evidence from any child expert.  I do have evidence of allegations of mistreatment by the father.

26. The father, for his part, alleges that the mother, at least indirectly, has not been attentive to the two children and may have been abusive due to his allegations of her inappropriate consumption of alcohol.  Again, these are matters which could not be tested before me and, absent agreement between the parties to resolve the litigation, will undoubtedly arise for further consideration on a final hearing.

27. With regard to practical difficulty and expense of the two children spending time with and communicating with a party and maintaining personal relations with both parties, obviously this is a significant matter.

28. The father, I was informed, has returned to Spain.  The period of time that the father will live in Spain before returning to Australia, if at all, is unclear.

29. There are obvious difficulties both from a practical viewpoint and financially in terms of maintaining frequent personal relations with the father.  The two children remain with the mother in Australia.  Conversely, if the two children are to live with the father in Spain the same issues may arise.  The manner in which these issues can be resolved, other than through electronic communication, is not clear.

30. A considerable amount of money is held by the mother in at least one bank account in Australia.  To the extent which that account needs to be accessed by each of the parties is also not clear, other than the mother has raised her need to make withdrawals from time to time to meet the cost of rent and living expenses.

31. I am not hearing property settlement proceedings between the parties simply because there is no jurisdiction to do so, given that the parties are not married.

32. Whether the orders that have been sought by the father, so far as those funds are concerned, can be categorised not as property settlement, but in the nature of injunctive relief and/or as part and parcel of the terms of parenting orders remains matters upon which further submissions need to be made on a later occasion if the parties do not resolve that issue between them.

33. There is currently before the Parliament a Bill to refer the State's powers to the Commonwealth for this Court to determine property matters between parties who have lived together in either same-sex or what is described as a “de facto marriage relationship”.

34. However, until such a Bill is passed and proclaimed, if at all, the current law does not provide this Court with jurisdiction.

35. There may be jurisdiction and therefore power to deal with the matter so far as injunctions are concerned, but as I have already stated, that is a matter yet to be fully argued.

36. There is no evidence before me to suggest that the two children have the maturity other than is commensurate with such children of their ages.

37. With regard to parental attitudes of the parties, on the face of it, they have each demonstrated historically an appropriate and responsible parental attitude, subject to the important matters of parental conflict and the allegations of family violence and abuse.

38. So far as family violence is concerned, as I have already stated on a number of occasions, there is considerable detail alleged in the wife's affidavit material to support possible findings of family violence and abuse.  However, I am not in the position to make findings of fact, given that those allegations were neither admitted nor tested.

39. With regard to an order least likely to lead to the institution of further proceedings, it is clear that at this stage of the proceedings whether a parenting order was made in favour of the mother or the father, it is not possible to come to a considered objective view as to which order was less likely to lead to the institution of further child related proceedings. 

40. So far as the capacity of each of the parties to provide for the needs of the two children, there is no issue raised that each of the parties has the capacity to provide for the physical needs of the two children.

41. So far as intellectual needs of the two children are concerned, again on the material before me there is no issue.

42. There is considerable issue in terms of emotional needs consequent upon the allegations of the mother in relation to family violence and abuse and the allegations of the father so far as the mother's alleged intoxication due to alcohol and consequential behaviour.

43. I have concluded that interim parenting orders will be made in substance as sought by the mother, in contrast to the father.

44. The mother's proposal is that the two children live with her in premises either close to where the maternal grandmother lives, or otherwise in part of the western suburbs of Sydney.  The two children live with the mother in rented accommodation at this stage.  The mother proposes frequent and regular periods of time that the two children may spend with the father should he be in Australia.  Otherwise, it is submitted that electronic communication will be facilitated between the two children and the father whilst he is in Spain.

45. The father's proposal is that the two children live with him in Spain and that there be a parenting order to that effect.  Also, that the two children be able to travel with him to Spain, as well as the wife.  Further, that any remaining parenting issues be decided by a Spanish court.

Conclusion

1. As already stated, the amendments to the Act elevate family violence and abuse, and the need to protect children from those matters, as one of the two primary considerations.  The other primary consideration is the benefit to the two children of having a meaningful relationship with each of the parties.

2. Those two primary considerations in this case are inter-related to a certain extent.  As the allegations have not been tested, I am not in a position to make findings of alleged violence and abuse, or inappropriate consumption of alcohol and as a consequence to determine in more detail the benefit of a meaningful relationship between the two children and each of the parties.

3. However, I cannot turn a blind eye to the detailed allegations of family violence and abuse, notwithstanding that they have not been fully tested.  The reason being that the legislation requires me to give primary consideration to that matter and as the Full Court has held in Goode,[10] I have to take that approach, regardless of whether these are interim parenting proceedings or not.

   [10] Goode and Goode (2006) FLC 93-285

4. Consequently, having carefully reviewed the affidavit evidence I have concluded on the balance of probabilities that the material put forward by the mother is not only detailed but plausible.

5. That does not necessarily inhibit me at a later time from making findings of fact that are in accordance with the father's case as opposed to the mother's case.  Nonetheless, on an interim basis I have given considerable weight to those matters as is required by the legislation.

6. In addition I have also given weight to the mother's assertion, which realistically does not seem to be contradicted, that she has been the full-time carer of the two children.

7. The reasoning behind that is the father's evidence, as well as some of the evidence of the mother, in relation to the nature and extent of his employment in the advertising business and the manner in which he has been engaged in that occupation at an executive and responsible level.  Clearly, the father could not have been in two places at the same time.

8. Given the ages of the two children who are still very young, I have concluded for the purpose of interim proceedings that the mother has been, and will remain, the full-time carer of the two children.

9. The matter then arises as to who would care for the two children if they lived with the father given his ongoing employment responsibilities.  I am more persuaded by the evidence of the mother, than the father, that they can be more adequately cared for by the mother as opposed to the father and/or others who he may engage to assist him.  The precise detail of those matters and the way that might impact upon the two children is not clear from the father’s affidavit.

1. I accept the mother's case that she will facilitate periods of time between the two children and the father so far as it is practicable to do so, as well as by electronic communication between them.

2. There will be order to that effect.

3. I will also appoint an independent children's lawyer.  There was no submission to the contrary.

4. Clearly, this is a matter in which a family report is required.  Again, there was no submission to the contrary.  Appropriate orders will be made.

5. Were it not for the serious and detailed allegations of family violence and abuse made in the mother's case, I may well have made orders, that is parenting orders, and mandatory injunctions requiring the two children to be in the care of the parties and to return to Spain so that their child related disputes can be determined by the appropriate Spanish court.

6. However, the allegations of family violence and abuse which the legislation requires that I give primary consideration to before making any parenting order, have led me to conclude on a balanced case that it is in the two children's best interests that the interim parenting orders which I will now make, apart from the interim parenting orders made yesterday, should be made.

7. Counsel for the mother reminded me that at the close of submissions yesterday, her instructions were to seek orders for supervised periods of time to be spent by the father with the two children.

8. In the short time that was available, given that the father had to leave this Court yesterday by 3.00pm to be at the airport in time for his flight to Spain, counsel for the father opposed such an order being made.

9. The application of the mother does not seek any supervised periods of time.

10. There is no evidence before me as to who would be the supervisor, although counsel for the mother did refer to one or other of the mother's relatives.  Nor was it put to me their understanding of the responsibilities of being a supervisor, or the extent to which they were available to do so, or their ability and willingness to actually carry out all of the responsibilities of being a supervisor.

11. Consequently, I will not make orders as sought in that regard.

12. It is still open, of course, to either party to make an application to vary all or any of the parenting orders that I have made based upon affidavit evidence that was not produced during the interim hearing this week.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose

Associate: …

Date:  1 October 2008 (amended)