Crisp and Hayes

[2014] FCCA 1681

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES [2014] FCCA 1681

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – whether mother should relocate child’s residence back to Sydney from [C] – Court Expert Report considered – where Court Expert gave oral evidence in interim hearing – Court not bound to follow recommendation of Court Expert.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Crisp & Hayes [2013] FMCAfam 254
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant: MR CRISP

Respondent: MS HAYES

File Number: SYC 747 of 2013

Judgment of: Judge Scarlett

Hearing date: 16 December 2013

Date of Last Submission: 16 December 2013

Delivered at: Sydney

Delivered on: 31 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Clifford

Solicitors for the Applicant: Diamond Conway

Counsel for the Respondent: Mr Theobald

Solicitors for the Respondent: Slater & Gordon

Independent Children's Lawyer: Ms Smith

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged.

2. The parties are to have equal shared parental responsibility for the child [X] born [omitted] 2008.

3. The child [X] is to live with the Mother.

4. The Mother is restrained from changing the child’s residence from the [C] area without the written consent of the father or Order of this Court.

5. The child is to spend time with the Father as follows:

   (a)During school term time:

   (i)On a six weekend cycle on alternate weekends from 9:00am Saturday to 5:00pm on Sunday with the first two such weekends to be in Sydney and third weekend to be in [C];

   (ii)In [C] for up to two (2) consecutive nights on weekends or weekdays provided that the Father gives the Mother not less than four (4) days’ notice of his intention to spend time with the child and the amount of time that he intends to spend with her.

   (b)During school holiday time:

   (i)For the school holidays in April, June/July and September for a period commencing on the first Saturday of the holidays and concluding on the middle Sunday of the holidays with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks prior to the commencement of the holidays;

   (ii)From 2 January to Australia Day 26 January in each year with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks  prior to the commencement of the holidays.

   (c)For special occasions:

   (i)For three (3) hours on the child’s birthday in each year from 3:30pm to 6:30pm if the birthday falls on a day when the child is not otherwise in his care;

   (ii)On the weekend that includes Father’s Day from 12 noon on Saturday to 3:00pm on Sunday if that day falls on a day when the child is not otherwise in his care; and

   (iii)At any school activity to which parents are usually invited.

   (d)At such other times as the parties may agree in writing between themselves.

6. The Father and the Mother are to have liberal telephone and Skype communication with the child when she is in the care of the other parent.

7. The parties are restrained from discussing these proceedings with the child or in her presence or hearing.

8. The parties are restrained from criticising or denigrating each other in the presence or hearing of the child or permitting third parties to do so.

9. The Father has leave to provide a copy of these Orders to any school that the child attends.

10. The final hearing of the Application for final orders is to be expedited.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 747 of 2013

MR CRISP

Applicant

And

MS HAYES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case by the Father of a girl called [X], who is now 6 years of age, seeking interim orders that would require the Mother to return to live in the former matrimonial home in Sydney with the child.

2. The Mother opposes the orders sought. She wishes to remain living in [C] with the child.

Background

1. The Father is the Applicant in the substantive proceedings, which were commenced by an Application filed on 15^th February 2013.

2. The background facts are set out in some detail in an earlier interim decision made on 20^th March 2013[1].

   [1] Crisp & Hayes [2013] FMCAfam 254

3. The parties commenced living together in about July 2003 and were married on [omitted] 2006. There is one child of the marriage, [X], who was born on [omitted] 2008. The Father has one child from his previous marriage, [Y], who was born on [omitted] 1997. He lives with his mother. 

4. The parties were living in Sydney. After discussions between them, the Mother moved to [C] with the child, with the Father’s reluctant consent, on 5^th August 2012. The proposed arrangement, at least from the Father’s point of view, was that this was to be a temporary move for a period of about six months. The Mother’s parents live in [C] and she initially stayed with them before moving into rented accommodation. The Father travelled to [C] and spent time with the Mother and the child on various occasions between August and December 2012.

5. However, the situation changed in January 2013, when the Mother told the Father on the telephone that she intended to stay in [C] and not return to Sydney.

6. It was the Mother’s case that she moved to [C] to have the support of her parents and extended family because she felt isolated and emotionally vulnerable and could not continue living with the Father. She obtained part-time employment and enrolled the child in a pre-school.

7. In the interim decision made on 20^th March 2013, orders were made that:

   a)the Father’s application for the mother to return the child to live within 25 kilometres of the suburb of [P] was dismissed;

   b)the parties were to have equal shared parental responsibility for the child [X];

   c)the Father was to spend time with the child:

   i)each third weekend in [C];

   ii)on the weekend that includes Father’s Day in Sydney; and

   iii)at such other times as the parties should agree.

   d)Dr M, a Child and Family Psychiatrist, was appointed as Court Expert to prepare a report for the Court; and

   e)An Independent Children’s Lawyer was to be appointed to represent the child’s interests.

8. Dr M prepared a Report which was released to the parties on 19^th July 2013.

9. On 2^nd September 2013 the parties entered into interim Consent Orders providing that:

   a)the parties would have equal shared parental responsibility for the child [X];

   b)the Father would spend time with the child on three weekends in September and one weekend in October in Sydney; and

   c)thereafter on each alternate weekend in a pattern of the first two weekends in [C] and the third weekend in Sydney.

10. The Court noted that the parties proposed to attend mediation in an attempt to resolve both parenting and property issues.

11. The parties did not resolve their issues.

12. The Father filed an Application in a Case on 27^th August 2013 which was returnable on 4^th November 2013, seeking orders for the Father to spend time with the child each alternate weekend in [C] and each sixth weekend in Sydney.

13. The Father filed a further Application in a Case on 25^th October 2013, seeking an order that the final hearing of the matter should be expedited. That further Application in a Case was also returnable on 4^th November. The Applications were listed for an interim hearing on 16^th December 2013.

14. The mother filed on 31 October 2013 an Amended Response, a Financial Statement and an affidavit affirmed on 30 October 2013.

15. When the matter came before the Court on 16^th December, the Father’s case had changed substantially. In a Minute of Orders filed in Court on the day, the Father sought interim orders providing that:

    a)he should be granted leave to adduce oral evidence by telephone from Dr M, the Court Expert;

    b)that the parties would have equal shared parental responsibility for the child [X];

    c)that from 27^th January 2014 the child was to live with the Mother in the Sydney metropolitan area and the Mother was to have exclusive occupation of the former matrimonial home in [P];

    d)the Mother was to be restrained from changing the child’s residence from the Sydney area without the Father’s written consent or order of the Court;

    e)the child would spend time with the Father:

    i)on alternate weekends during school term time;

    ii)on Wednesdays during school term time from after school until the commencement of school the next morning;

    iii)for one week during the April, June/July and September/October school holidays;

    iv)for half of the Christmas school holidays;

    v)for three hours on the child’s birthday;

    vi)on the Father’s Day weekend; and

    vii)at school activities; and

    viii)at other times as agreed in writing;

    f)In the alternative:

    i)The child would remain living with the Mother in the [C] area;

    ii)The Mother would be restrained from changing the child’s residence from the [C] area without the Father’s written consent or order of the Court;

    iii)The child would spend time with the Father on alternate weekends in a six weekend cycle during school term time, for the entire of the April, June/July and September/October school holidays, for half of the Christmas school holidays, on the child’s birthday, the Father’s Day weekend and any school activities to which parents are invited.     

Evidence and Submissions

1. The Father relied on the following documents:

   a)his affidavit of 10^th December 2013;

   b)the affidavit of Ms S of 10^th December 2013;

   c)the affidavit of Ms C of 9^th December 2013; and

   d)the report of Dr M of 16^th July 2013.

2. The Father deposed in his affidavit that his relationship with [X] has grown and strengthened since their time together has increased. He has no other family or friends in [C], so he stays at a motel or a serviced apartment. When he spends time with the child in Sydney, he arranges for his son to stay with him so that the two children can spend time together.

3. The Father wants the child and the Mother to return to live in Sydney. He proposes to vacate the former matrimonial home to permit the Mother to reside there exclusively. He is keen to increase the amount of time he spends with [X].

4. He wanted the child to commence her schooling in Sydney and made arrangements to enrol her at [P] Public School, a school with which he expressed himself to be most impressed.

5. Ms S is the Father’s former wife and the Mother of the child [Y], now aged 16 years. She deposed that since she and the Father separated he has spent significant time with [Y]. She and the Father have made flexible arrangements about the boy and are able to negotiate in an amicable fashion by way of email, text messages and telephone conversations.

6. Ms C is the child’s paternal grandmother. She deposes that she has only seen the child four times in the past sixteen months and she and her husband have missed the child’s presence at family functions.

7. Ms C deposed that she is able to provide suitable accommodation for her son and granddaughter to stay in their home. She is available for child care and transporting the child to and from school or other places.

8. Dr M gave evidence by telephone and was cross-examined by

   
   

   Ms Clifford of Counsel for the Father, Mr Theobald of Counsel for the Mother and Ms Smith, the Independent Children’s Lawyer.

9. The Independent Children’s Lawyer submitted that [X] is a resilient child who could cope with spending a year in Sydney. However, she noted that the child’s primary attachment is to her mother. Any move as a result of an interim hearing could see the child making two moves between Sydney and [C].

10. Mr Theobald submitted for the Mother that there was no proposition by the Father that the child would live with him. He was seeking contact with the child. The Mother does not want to return to live in the former matrimonial home. She is distressed at the prospect of returning to Sydney. Her health is a problem and she has no job in Sydney.

11. However, Ms Clifford of Counsel submitted for the Father that there was no evidence from the Mother of her circumstances in [C]. She would have vulnerabilities whether she lives in Sydney or [C]. The child has a good relationship with both parents and is not at risk in either parent’s care.

The Court Expert’s Evidence

1. Dr M interviewed the parties and the child on 24^th and 25^th June 2013. He completed his Report on 16^th July 2013.

2. Dr M described the Mother as referring to the child in a “thoughtful and loving manner. She “focussed on [X]’s many strengths and delightful personality”.[2]

   [2] Dr M Report 16.7.2013 page 3 at [4]

3. Dr M recorded the Mother as describing the Father as aggressive and controlling. She and the Father had attended counselling which had on occasions been discontinued due to the Father’s verbal abuse. She said that he “had at times become abusive and hostile towards the therapists”.[3]

   [3] Ibid at [6]

4. The Mother had consulted a psychiatrist in [C], a Dr A who had prescribed a series of antidepressants “in the context of her experience of Anxiety, Depression, insomnia, lack of energy, low self-esteem and feelings of helplessness”.[4]

   [4] Ibid at page 4 [9]

5. The Mother had also benefited from ongoing therapy with Ms M, whom she had been seeing on a regular basis.

6. Dr M described that the Father, too, described the child in a similar manner to the Mother:

   He focussed on her many strengths. He spoke of her with great affection.[5]

   [5] Ibid at page 5 [26]

7. The Father told Dr M about his concern that the child was “missing out on the care, nurturing and fatherly support that he was able to provide.”[6] He also said that the child was missing out on contact with members of her paternal extended family, including her half-brother.

   [6] Ibid page 5 [27]

8. The Father acknowledged the truth of some of the Mother’s allegations in her affidavit. He acknowledged that he had complained about aspects of what he regarded as unprofessional behaviour by a counsellor. He conceded that he had been verbally overbearing, sarcastic and jealous towards the Mother.

9. Dr M said that the child [X] told him she liked living with her mother. She missed her father a lot and spoke of him in positive terms. She also said that she missed her half-brother a lot.

10. [X] spoke enthusiastically about her maternal grandparents and said she also liked seeing her paternal grandparents, whom she also missed.

11. Dr M noted a positive rapport between the child and her father. The Father was engaged and interested, although less highly attuned than the Mother:

    Despite this, [X] remained enthusiastic, interested and engaged in play with her father. She expressed her experience with exuberance.[7]

    [7] Report page 9 [56]

12. The child was observed to interact positively with her half-brother.

13. Dr M expressed the opinion that the child had a primary attachment with her mother. Her developmental needs had been appropriately attended to by her mother.

14. Importantly, Dr M expressed the view:

    106.Both parents were viewed to have a more than adequate ability to attend to their daughter’s developmental needs. They were viewed to have different strengths and weaknesses in approaching the task of parenting. The mother was more highly attuned as the primary caregiver. [X] was viewed as potentially benefiting from each parent having significant and substantive involvement in her life.

    107.I did not form the view that [X] was at risk of abuse or neglect in the care of either parent, nor that she was likely to be exposed to family violence in the care of either parent.[8]

    [8] Ibid page 15 [106]-[107]

15. Dr M identified the Mother’s mental health as a significant issue. Her conflictual relationship with the Father was seen to be a precipitant for the re-emergence of earlier depressive symptoms. These had become more significant, and were in part a function of her concern that she would be forced to return to Sydney.

16. Dr M went on to say of the Mother:

    Although she asserted that should she return to Sydney that her mental health would be placed at risk and thus impact upon her capacity to provide adequate care for [X], it was evident that [X] was thriving, despite the fact that she had continued to experience depressive symptoms whilst in [C]. Further, her assertions that she lacked social support in Sydney seemed questionable, given that she had successfully resided in Sydney for over 25 year with established employment to return to.[9]

    [9] Report page 16 [108]

17. As to the father, Dr M stated:

    The father was also identified to have issues dating back to his family of origin, which had contributed to his frustration and expression of anger. This was identified to have been a significant factor in the unresolvable parental conflict. He was, however, not identified to have an underlying Personality Disorder or Psychiatric Diagnosis.[10]

    [10] Ibid [109]

18. In his oral evidence, Dr M said that more significant contact with her father would benefit the child. He said that he would support a proposal for [X] to return to Sydney by the end of January on condition that there were proper arrangements for the Mother’s accommodation, employment and social support.

19. He went on to say that the Mother’s close proximity to her mother and sister (in [C]) had not ameliorated the Mother’s symptoms. There would be a benefit to [X] to have proximity to her father and her paternal extended family members, including her half-brother.

20. There had been a destabilisation in the Mother’s mental state in the context of these current proceedings. The Mother does have a vulnerable mental state that changes in relation to current circumstances.

21. Dr M also said that the Mother’s move to [C] had not elicited an improvement in her mental state. He also expressed a concern that leaving the child in [C] for another ten to twelve months would have a negative effect on her relationship with her father. Regular face-to- face contact for the child with her father has to be in Sydney.

22. In answer to a question by Mr Theobald for the Mother, Dr M said that an interim decision would not deal with the issue of uncertainty, because unless there was a resolution to the issues there would be ongoing uncertainty.

23. In cross-examination by Ms Smith, Dr M noted that the child was seeing her father for two nights each fortnight and said that his overall impression was that [X] was a competent child who was thriving developmentally. She reported positive relationships with her extended family on both sides.

Parenting Applications

1. Where a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975 (Cth), which are set out in s.60B(1). The Court must also have regard to the principles underlying those objects, which are set out in s.60B(2) of the Act.

2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in the child’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).

3. Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.

1. Section 65DAA applies when the Court has made an order that a child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

2. All of those matters have been considered.

Conclusions

1. It is not suggested by either party that the parents should have other than equal shared parental responsibility for this little girl. That has been the case in previous orders and it appears to be an appropriate order to be made on this occasion. Both parents are loving parents who have a good relationship with their daughter. I propose to make an order that the parties should have equal shared parental responsibility for [X].

2. Such an order requires a consideration under s.65DAA(1) about the child spending equal time with each parent. This does not appear to be reasonably practicable even if I were to be satisfied that it would be in her best interests.

3. The Court must then consider the question of the child spending substantial and significant time with each of her parents. She is currently in the care of her mother. She is spending time with her father which is less than substantial and significant time. Dr M expressed the view that this child would benefit by having more significant contact with her father. Substantial and significant time with her father would appear to be in [X]’s best interests, although there is a cloud over the reasonable practicability of such an arrangement, particularly if the child remains living with her mother in [C]. Dr M said in his oral evidence that face-to-face time with the child’s father should ideally take place in Sydney.  

4. The best interests of the child must be the paramount consideration.

5. In  my view, the evidence supports a finding that there is a benefit to this child of having a meaningful relationship with both of her parents. Dr M noted in his report that each parent has a more than adequate ability to attend to [X]’s developmental needs. They have different strengths and weaknesses in this regard.

6. Despite the Mother’s allegations of family violence by the Father,

   
   

   Dr M expressed the view in his report that the child was not at risk of abuse or neglect in the care of either parent, nor would she be likely to be exposed to family violence.

7. There are additional considerations in s.60CC(3) of the Act, not least the views expressed by the child and the facts that are relevant to the weight that the Court should give those views.

8. This child has expressed the view that she misses her father and enjoys spending time with him, as is the case with her half-brother and her paternal grandparents. She has a primary attachment to her mother.

9. [X] is 6 years old. Her views should be given some weight.

10. It is clear from the Court Expert Report that this child has a loving and positive relationship with each of her parents. She also appears to have a good relationship with her half-brother and her grandparents on both sides.

11. Each parent clearly wishes to:

    a)participate in making decisions about major long-term issues in relation to the child, although they have each acted unilaterally in this regard;

    b)spend time with the child, and the Father wishes to spend more time; and

    c)communicate with the child.

12. What the Father is proposing is a major change in his daughter’s circumstances, because he wants her and her mother to move back to Sydney from [C]. This would necessarily involve a separation from her maternal grandparents, who live in [C], although it would increase the amount of time she would be able to spend with her paternal grandparents.

13. As the child has reached school age, the Father’s proposal would see her being enrolled in a school in Sydney, to wit, [P] Public School. This appears to have been a unilateral decision by the Father.

14. The concern has to be that the Father’s primary proposal involves a relocation back to Sydney from [C], which will have a significant effect on the child. True it is that the Mother relocated the child’s residence to [C] and then unilaterally made the decision to remain there. The Father’s evidence has always been that he reluctantly agreed to a temporary relocation of no more than six months.

15. However, relocation is what this case is all about. There has been an interim hearing already, where the Father proposed that he would move out of the former matrimonial home and allow the Mother to live there until she was able to move into premises which she owns at [suburb omitted].[11]  In this case, he is recycling a proposal that the Mother has already rejected. She does not want to move back into the former matrimonial home, even with exclusive occupation. Apparently, it holds too many bad memories for her.

    [11] See Crisp & Hayes [2013] FMCAfam 254 at [8]

16. In my view, the Father’s primary application, which involves the Mother returning with the child to live in Sydney, is an attempt to achieve at an interim hearing what is the very matter at issue. The Father is not seeking an order that the child should reside with him. True it is that he has adduced oral evidence from the Court Expert, but the other evidence still remains untested by cross-examination. It is still an interim hearing and the limitations of the abridged procedure of an adjourned hearing are well known (see Goode & Goode[12]at [68]).

    [12] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

17. In my view, whether or not the Mother relocates the residence of the child back to Sydney is a matter for a final hearing, when all the evidence can be properly tested by cross-examination. It is not just the evidence of the Court Expert that will decide the case (see Hall & Hall[13]).

    [13] (1979) 5 Fam LR 609; FLC 90-713

18. However, there is clear evidence that it would be in this child’s best interests to spend more time with her father and that this should properly be done in Sydney rather than [C]. There is evidence on affirmation from Dr M on those issues and I propose to accept that evidence.

19. Accordingly, it appears to be in the child’s best interests that the Court should make orders of the type (but not identical to) those proposed in the Father’s Minute of Orders Sought as Orders 10 to 18.

20. These orders will still see the child remain living with her mother in [C] but will spend considerably more time in Sydney with her father, especially in the school holidays. These orders will provide something approaching substantial and significant time. It would be inappropriate for the Mother to choose to relocate to anywhere other than [C] unless she proposes to return to Sydney prior to the final hearing.

21. It is also appropriate that the final hearing of this matter should be expedited.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 31 July 2014