Conway and Canavan

[2019] FCCA 2457

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONWAY & CANAVAN [2019] FCCA 2457

Catchwords:
FAMILY LAW – Parenting – best interests of the children – interim application seeking variation of orders in light of Family Report recommendations – whether in best interests of the children to disrupt settled arrangements – whether new material is better addressed and tested at trial – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode (2006) 206 FLR 212

Applicant: MS CONWAY

Respondent: MR CANAVAN

File Number: ADC 4720 of 2018

Judgment of: Judge Young

Hearing date: 14 August 2019

Date of Last Submission: 14 August 2019

Delivered at: Adelaide

Delivered on: 14 August 2019

REPRESENTATION

Counsel for the Applicant: Ms Temnoff

Solicitors for the Applicant: The Law Officers of Elizabeth Temnoff

Counsel for the Respondent: Ms Hume

Solicitors for the Respondent: Maley Barristers & Solicitors

ORDERS

1. The children Y born … 2010 and X born … 2015 spend time with the father for the entirety of the 2019 October school holidays in Darwin with the father to pay for the cost of such travel.

2. That the children spend time with the father for three weeks during the 2019/2020  Christmas school holidays including Christmas 2019 at times to be negotiated between parties with the father to pay for the cost of such travel.

3. The proceedings are adjourned to 25 September 2019 at 11.30am before Judge Heffernan for callover and possible trial listing NOTING the parties are required to personally attend on this day UPON FURTHER NOTING it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4720 of 2018

MS CONWAY

Applicant

And

MR CANAVAN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting application concerning two children, X, who is four, and Y, who is eight years old. Y is the child of a previous relationship of the applicant mother’s but, as I understand it, it’s not in contest that these parties began their relationship when Y was only 18 months old.

3. It is clear from the observations of the family consultant in a family report that the relationship between Y and the respondent father is just as close as the relationship between X and the father, his biological father. These proceedings have largely proceeded on the basis that there is no difference in the situations of the two children, notwithstanding the fact that the respondent is not the biological father of Y. I should qualify that somewhat.

4. The mother’s proposal is that she have sole parental responsibility for Y and that there be shared parental responsibility for X and both children live with her. It is unclear what the father says about parental responsibility. From the family report, his position is the same as the mother’s, that she have sole parental responsibility for Y, which is a very curious position to take, as he seeks orders that both children live with him. In my view, these positions are inconsistent.

5. I was told from the bar table that that position is an error by the solicitors.  If so, it is an error of long standing, since December 2018, which has not been corrected to date. I am going to make an order that the father file an amended response within 14 days.

6. The background is as follows or, at least, the background that is substantially agreed. Both parents were born in the United States. In approximately 2014 they came to Australia and began living here. It seems that the father’s extended family, or immediate family, live in Darwin and have done for some years. That may have been the impetus to moving to Australia. Certainly the parties lived in Darwin initially for a period of about two years from June 2014 to June 2016.

7. In June 2016 the parties moved to Adelaide. The father was employed in Western Australia for some of that time, apparently on a fly-in fly-out basis. He asserts that the mother refused to move to Western Australia. Her position is that the father was unfaithful to her during that period and she, in substance, decided not to move or was uncertain about the relationship. In any event, the father continued to commute to Adelaide during that period. It seems that that period was a period of marital uncertainty for these parties, though they continued their relationship.

8. In May 2018 the father says that there was an agreement that he and the mother would relocate to Darwin. I should say that in May, I think it was a bit unclear, but certainly by September 2018, the parties had separated. The father says that the agreement was that, despite the separation, the mother agreed to relocate to Darwin around about that time and there was to be an equal shared care arrangement for both children, which I take to mean fifty-fifty.

9. The mother did move to Darwin, where the father was, and the agreed position (though this is not stated in the affidavit material, which apparently has some mistaken dates, particularly the father’s affidavit material) is that the mother and the children moved from Adelaide to Darwin on 30 August 2018. The mother says that initially she lived with the father’s family.

10. The mother says that in October 2018 there were difficulties or differences and it was apparent to her that she was no longer welcome living with the father’s family. That may not be surprising as it appears that the parties were at least separated at that time, though one might wonder whether their decision about that was so definite considering the nature of the agreement they had made.

11. The mother returned to Adelaide. It appears that Y was enrolled in school in Darwin and X was at preschool or something similar. The mother obtained legal advice, it would appear, and following obtaining legal advice she travelled to Darwin and removed the children or took the children and returned to Adelaide. She then commenced proceedings in Adelaide in November 2018, almost immediately after her return, it would appear. The mother and the children have thus remained living in Adelaide since November 2018.

12. The father, not surprisingly, sought a recovery order in his response filed on 14 December 2018. Neither party have told me exactly what the outcome of that application was but it would appear from reading the orders that there was a judgment and ex tempore reasons were to be provided. I have not been provided with a copy of those reasons.

13. I find that hard to reconcile with the orders, which include consent orders made on 21 December 2018 that the children live with the mother and that they spend time with the father for some period over Christmas. It would appear to me that the recovery order was resolved at that stage by the orders of 21 December that the children live with the mother in Adelaide and spend time with the father over Christmas in Darwin. It appears, while there was some indication that ex tempore reasons would be given, as I say, I have not had my attention drawn to them and I do not see any on the file.

14. On 17 January further orders were made that the children live with the mother, that the children speak to the father by Skype, that the children spend time as agreed between the parties and an order for the preparation of a family report. The recovery order application appears to have been resolved by a consent order on 21 December and a further order on 17 January by the court which saw the children continuing to live with their mother in Adelaide and the order for preparation of a family report. I do not accept, as has been perhaps implied in submissions, that the recovery order application has not been dealt with. In my view, it was dealt with.

15. Pending the preparation of the family report the matter was adjourned to 16 May for further consideration and on 16 May the matter was adjourned to today for interim hearing in relation to the children’s living arrangements in the light of the family report recommendations. When the court made that order, it was aware of the release of the family report and the recommendations made therein. The recommendations were that the children should live with the father in Darwin and spend time with the mother with various other ancillary orders about where changeovers take place; encouraging arrangements for time for the children to communicate with the extended families on both sides; that the parents attend parenting courses, which I have not heard anything about, and the parties communicate by electronic means.

16. This interim application by the father follows the release of the family report and he seeks an interim order for the children to live with him in Darwin. The mother opposes that.

17. The reasons for the family report’s recommendation appears to me to rely very heavily on two bases. One, the observation of the mother and the children by the family consultant in an observation room before the preparation of the report and, secondly, the uncontested position that the mother spends two nights a week, Friday and Saturday night, working in a business, leaving the children with a babysitter. The mother is apparently not paid for the work in the business and is doing so on a voluntary basis, according to the family report, so that she can fill a gap in her resume.

18. Those two factors, and I will turn to them in a little more detail in a moment, led to the family consultant forming the view that the mother lacked engagement with the children and she was emotionally unavailable. The observation of the interactions with the mother, which is set out at paragraph 77 through to 80 of the family report, is interesting and I will summarise it.

19. The consultant observed a lack of engagement between the mother and the children’s play; not a complete lack of engagement, but a degree of engagement and a focus on some other irrelevant things. The observation of the consultant at paragraph 81 reads as follows:

    The observation of the mother with the children raised some concerns. The mother appeared to be somewhat distant from the children during the observation. She sat on the couch for a good deal of the time appearing to direct play with the children, rather than being involved with them. The mother, at two points in the observation, was focused on her nails and, during the observation, the children played for periods of time by themselves. The play of the children with the mother lacked engagement and it was likely that the mother’s demonstration of lack of availability, emotionally and mentally, may be an example of how she relates to the children generally. The children’s display of resistance when told of the observation with the father was clearly observed by the mother without response and the mother then looked to the family consultant. However, her purpose for this was not clear.

20. The observation of the children with their father was of a different quality. The father was closely engaged in the children’s play and communicated effectively and warmly with them, including displays of rough, physical play and affection. What the family consultant said at paragraph 84 in summary of this was as follows:

    It was anticipated by the family consultant that there may have been resistance from the children given their previous expression of unwillingness to have an observation with the father. The opposite was true. The father was engaged with the children from the beginning and maintained involvement in their play. He showed no favouritism and ensured that he played with both. Even when he was physically challenged by Y, he was able to maintain his involvement with X. His attention and praise was appropriate and he was able to play in an age-appropriate manner with them both at the same time. The play between the father and the children appeared to demonstrate that this was a familiar occurrence between them. There were no concerns raised regarding the parenting skills, emotional availability or relationship between the father and the children.

21. The family consultant, at paragraph 88, also raised concerns about the mother’s engagement of a babysitter for two nights a week while she did voluntary work. The family consultant was clearly concerned about that and questioned the mother. Part of her concern was expressed as follows:

    She appeared to not understand that it was the amount of time the children were forced to spend away from her for a purpose that did not benefit them, that was detrimental to their welfare, but said that it was not only at the babysitter’s home, but also with the babysitter in their own home.

22. There were some other concerning observations or perhaps information relayed to the consultant particularly those of the children, or X at least, I think, saying that his mother yelled at them.  At paragraph 89, the consultant said:

    It appeared from the observation of the children with their mother that she may have a difficulty being emotionally available to the children, and the fact that she absents herself from the children for a significant period of time each week raises the question of whether she is willing or able to put the needs of the children above her own. 

    That is really the nub of the matter.

23. At paragraph 92, the family consultant also raised concerns about whether the children were afraid to let the mother know that they were happy to spend time with the father. She was concerned about Y’s narrative during the interview, which, according to the consultant:

    Appeared structured and perhaps even rehearsed.

24. The family consultant also thought, referring to paragraph 94, that the children had likely been exposed to criticism of the father and perhaps undue influence from the mother. The recommendations were that:

    The children live with the father in Darwin, where they had lived with the father until removal by the mother from that location, and to spend time with the mother as agreed between the parties or, if there is no agreement, as ordered by the court.

    There were other more minor recommendations but that is the main one.

25. This application for an interim change in living arrangements for these children rests squarely on the recommendations in the family report. The Full Court of the Family Court has made clear, and I was referred to Goode v Goode (2006) 206 FLR 212, that, essentially, the question on an interim hearing is the same as on a final hearing, that is, the question of the best interests of the children. The court recommended that on an interim hearing, a court should attempt to identify the matters that were not in dispute and was permitted to draw inferences as best it could from other material, including contested material.

26. As I have already indicated, the basic timeline is not in dispute. It is significant, I think, that from June 2016, the mother and the children, and, over periods, the father, have lived in Adelaide. The move to Darwin at the end of August, or beginning of September, 2018 until mid-November, a period of some two and a half months, was clearly a move made in unusual circumstances; a move made when the parties had separated, it would appear. The mother was reliant upon the father’s extended family for accommodation and, for whatever reason, she decided that she wasn’t willing to avail herself of that any further and she returned to Adelaide. Then, after obtaining advice, she removed the children back to Adelaide.

27. The period in Darwin was short and, in my view, in rather unusual circumstances. I consider that there have been settled arrangements for these children. They were largely living in Adelaide for the past three years. As the Full Court of the Family Court has made clear, settled arrangements ought not to be lightly disturbed on an interim hearing. Of course, the ultimately question is what is in the best interests of the children.

28. The family consultant’s views are, as I said, the primary basis for this application and if those views were found to be well-founded at trial, there would be a real possibility that an order for change of living arrangements of these children would be made. It’s not suggested that, pending trial, which I would expect to be some months away, that these children are in any danger, psychologically or physically. The family consultant does not recommend a change on an interim basis.

29. Where the basis for the change in living arrangements rests on, in my view, a relatively narrow basis, or relatively narrow bases, that is, a single observation by a family consultant over a relatively short period, and what appear to be unsatisfactory employment arrangements and unsatisfactory childcare arrangements for these children and which are, in the view of the family consultant, detrimental I am reluctant to conclude that the best interests of these children require, on an interim basis, disturbing settled arrangements.

30. In my view, the best interests of the children in this case would best be served by consideration of these primary issues, which I consider to be, essentially, the nature of the mother’s relationship with her own children, which would be best assessed at trial hearing evidence and with the advantage of cross-examination. I am not satisfied that, having regard to each of the matters in section 60CC of the Family Law Act, particularly subsections (2) and (3), that those matters require a change in the present arrangements which I am satisfied are settled.

31. I consider that the best interests of the children, at least on an interim basis, are best served by leaving arrangements as they are until there can be a more thorough investigation of the issues. Regrettably, I was not told precisely what time arrangements are being proposed, though the mother has said, through her counsel, that the arrangements she will agree to are the children spending the entirety of the two week holiday at the beginning of October with the father, and for a period of two to three weeks in the December holidays, including Christmas.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  3 September 2019