CRISP & HAYES
[2013] FMCAfam 254
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CRISP & HAYES | [2013] FMCAfam 254 |
| FAMILY LAW – Children – parenting orders – interim orders – relocation – whether interim order should be made requiring the respondent to return to live in Sydney with the child. PRACTICE AND PROCEDURE – Change of venue. PRACTICE AND PROCEDURE – Independent Children’s Lawyer – whether the interests of the child should be independently represented by a lawyer. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L Federal Magistrates Court Rules 2001 rr.8.01, 15.09 |
| Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR CRISP |
| Respondent: | MS HAYES |
| File Number: | SYC 747 of 2013 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 March 2013 |
| Date of Last Submission: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Knox |
| Solicitors for the Applicant: | Diamond Conway |
| Counsel for the Respondent: | Ms Monastiriotis |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
The name of the Respondent is MS HAYES.
UNTIL FURTHER ORDER
The application by the Applicant Father for an Order that the Respondent Mother return the child of the marriage [X] to live within 25 kilometres of the suburb of [P] in the State of New South Wales within 14 days is dismissed.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2008.
The Father is to spend time with the child [X] as follows:
(a)each third weekend from 1:00pm to 5:00pm on Saturday and from 9:00am to 1:00pm on Sunday in [C] commencing on Saturday 23 March 2013 until 30 June 2013;
(b)each third weekend from and after 6 July 2013 from 9:00am to 5:00pm on Saturday and from 9:00am to 3:00pm on Sunday in [C];
(c)
on the weekend that includes Father’s Day from 9:00 am to
5:00 pm on Saturday and from 9:00 am to 3:00 pm on Sunday in Sydney; and
(d)at such other times as the parties may agree.
As provided by Rule 15.09 Dr M, Child and Family Psychiatrist, is appointed as Court Expert to inquire into and report on matters relating to the welfare of the child [X] born [in] 2008 and in preparing his report to the Court Dr M is requested to consider the following matters:
(a)whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(b)whether the child is at risk psychologically from past exposure to psychological counselling or therapy;
(c)any views expressed by the child and any factors such as maturity and level of understanding that may affect the weight to be accorded to those views;
(d)the relationship between the child and each of the parents and any other relevant person;
(e)the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either the parents or any other person with whom the child has been living;
(f)the capacity of the parents to provide for the needs of the child including emotional or intellectual needs;
(g)the effect on the child of any family violence to which she may have been exposed and the need to protect the child from being exposed to family violence in the future;
(h)the mental state of the parties in so far as it relates to parenting issues;
(i)the mental health or special needs of the child and any recommendation for therapeutic counselling if appropriate for her; and
(j)any other matter the Court Expert considers relevant.
The parties are to be equally liable for the cost of Dr M’s report and within 28 days of the making of these Orders the parties must each pay one half of Dr M’s estimate of fees being the sum of $5,500.00 into the Trust Account of Slater & Gordon Lawyers for payment to Dr M upon completion of his expert report.
In the event that there remain monies available subsequent to the memorandum of fees from Dr M these monies are to be returned to the parties in equal shares.
In the event that there is a shortfall the parties must pay such additional sum in equal shares to meet the costs of Dr M within 21 days of a request for payment by Dr M.
In the event that the Court Expert is required to appear to give evidence in this matter, the parties shall be equally responsible for the Court Expert’s costs in respect of such attendance.
The parties must facilitate the preparation of the Court Expert Report including attending on and arranging for the child to attend upon the Court Expert.
The Court Expert shall be authorised and be at liberty to speak to any of the child’s treating health care professionals.
As provided by s.68L of the Family Law Act, the interests of the child [X] born [in] 2008 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.
The parties must forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents within 14 days.
The application by the Respondent to transfer the proceeding to the Registry of the Court at [C] is dismissed.
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 MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 747 of 2013
| MR CRISP |
Applicant
And
| MS HAYES |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application brought by the Husband seeking orders that his Wife return with their daughter from [C] to live in Sydney and be restrained from relocating outside a radius of 25 kilometres from the former matrimonial home.
The Wife opposes the Application. She does not wish to move back to Sydney with their daughter, a little girl called [X] who was born [in] 2008.
Background
The circumstances of this case are somewhat different from the usual relocation case, as the wife moved to [C] with the husband’s consent, albeit a reluctant consent. As he deposes in his affidavit of 14th February 2013:
I would never have agreed to her taking [X] to live in [C] permanently. I remained in regular contact with Ms Hayes and when she left with [X], it was my understanding that Ms Hayes and [X] would be returning to Sydney after a period of up to six months.[1]
[1] Affidavit of Mr Crisp sworn 14.2.2013 at paragraph [12]
The Wife moved to [C] with the child and stayed with her parents, who are long-term residents of [C], for about a month. She then moved into rented accommodation.
The Husband has travelled to [C] and spent time with the wife and the child on various occasions between 31st August and 27th December 2012.
The Husband deposes that it was on 15th January 2013 in a telephone conversation with the wife that she told him of her intention to stay in [C] and not return to Sydney.
The Husband has been speaking to the child on the telephone twice a week and seeing her in [C] about once a month. He deposes that he is afraid about losing his relationship with his child if she continues to stay away.
The Husband proposes that he would move out of the matrimonial home and allow the Wife to live there until she is able to move into rented premises which she owns in [M]. The Husband states that he intends to stay with his parents so that the Wife could move back into the home until her own premises become available.
The Wife has deposed in her affidavit sworn or affirmed on 14th March 2013 that she and the Husband experienced “problems” in their relationship since their relationship began. They commenced living together in July 2003 and were married on 2nd September 2006.
The Wife deposes that the major issue was, in her view, the Husband’s “capacity to act in an aggressive and overbearing manner” towards her.[2] She sets out in her affidavit a list of six different people with whom she attended individual counselling sessions about her well-being during the relationship and, in a subsequent paragraph, she gives the names of four different professionals with whom she and the Husband attended couples counselling.
[2] Affidavit of Ms Hayes 14.3.2012 at [13]
The Wife claims that there have been approximately incidents since 2003 between the Husband and her that caused her to seek professional assistance, and at paragraphs [18] to [39] she describes those incidents in some detail. She has also filed a Notice of Child Abuse or Family Violence in which she sets out the 20 incidents to which she refers in her affidavit.
It is the Wife’s case that she moved to [C] to have support from her parents and extended family because she felt “so isolated and emotionally vulnerable and need healing” that she could not continue living with the Husband. She has now obtained part-time employment and has enrolled the child [X] in a pre-school for four days a week. The child is also involved in [activities omitted].
Orders Sought
The Wife seeks the appointment of an Independent Children’s Lawyer and the appointment of a child and family psychiatrist, Dr M, as a Court Expert to prepare a report for the Court. She also seeks a change of venue to [C], as the Court regularly conducts circuit sittings there.
The Relevant Law
When a Court is deciding whether to make a particular parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC.
Subsection 61DA(1) provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In interim proceedings, subsection 61DA(3) states that the presumption applies unless the Court considers that it would not be appropriate for it to bed applied. In any event, when making a final parenting order, the Court is required by s.61DB to disregard the allocation of parental responsibility made in the interim orders.
Section 65DAA states that where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must then consider whether it is both in the child’s best interests and reasonably practicable for child to spend equal time with both parents. If the Court does not make such an order, it must consider 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.
All of those matters have been considered.
Conclusions
This is not a case where a parent has unilaterally relocated the child’s residence away from the other parent without that parent’s knowledge or consent. The parties agreed, somewhat reluctantly on the part of the Husband, that the Wife would live in [C] with the child for a period of time. What appears to have happened is that the Wife has come to the view that she does not wish the marital relationship to continue and has informed the Husband of this view. Although he has deposed that he would not have agreed to the Wife’s move had he known that this would be the outcome, it is not a case in my view where an order should be made, certainly on an interim basis, that the Wife should return to Sydney with the child.
The Husband has been seeing and speaking to the child regularly and the Wife does not propose that this should cease. The Wife has obtained employment in the area and has arranged for the child to attend pre-school and take part in other appropriate activities. It may well be disruptive for the child to move back to Sydney at this stage and not in her best interests to disturb an arrangement where she appears to have settled.
It is significant that the Wife has raised in her affidavit issues of family violence and abuse, which should not be dismissed without proper consideration. The parties have attended a Child Dispute Conference with a Family consultant who has provided a comprehensive memorandum to the Court, noting the unresolved allegations of family violence and the Wife’s statements that having to return to live in Sydney would have an adverse effect upon her, both emotionally and psychologically.[3]
[3] Family Consultant Memorandum to Court 18 March 2013.
The Family Consultant recommended that a further comprehensive assessment should take place before the child’s needs are able to be more fully understood and endorsed the proposal, to which both parents appear to agree, that Dr M should prepare an expert report. The Family Consultant also recommended that an Independent Children’s Lawyer should be appointed.
I am in no doubt that an Order should be made under Rule 15.09 that Dr M should be appointed as a Court Expert to prepare a report about the welfare and the best interests of the child.
I have considered the guidelines set out by the Full Court of the Family Court in Re K[4] and it appears to me that the allegations of long-standing family violence, and it should be stressed that these are allegations, justify the appointment of an Independent Children’s Lawyer for this child.
[4] (1994) 17 Fam LR 537; FLC 92-461
The parties have each proposed an order that they should have equal shared parental responsibility for the child. Applying s.61DA(3), I do not consider that it would not be appropriate in the circumstances for the presumption to be applied in making these interim Orders.
I propose to make orders that the father should spend time with the child at three-week intervals, mainly in [C] but on at least one weekend, being the Father’s Day weekend, in Sydney. The Father’s income is greater than the Mother’s, but that does not mean that she should not bear some of the cost and burden of arranging for the child to spend time with her father.
Finally, the Wife seeks an order transferring the proceedings to [C]. Change of venue is governed by Rule 8.01. It may be more convenient for the Wife to have the matter dealt with in [C] but it will be inconvenient for the Husband. The limiting of expense needs to be considered. Dr M is located in Sydney, and requiring him to go to [C] may cause increased expense. The matter has not been listed for final hearing and, in my view, the question of venue can be reconsidered at that stage.
For the time being, the venue of this matter will remain in Sydney.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 March 2013
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