DALGREN & HAILES

[2021] FCCA 139

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALGREN & HAILES [2021] FCCA 139

Catchwords:
FAMILY LAW – Interim parenting – equal shared parental responsibility – competing live with applications – recent relocation by the father – best interest of child – child to live with father and spend time with mother.

Legislation:

Family Law Act 1975 (Cth), s.69ZL

Applicant: MS DALGREN

Respondent: MR HAILES

File Number: PAC 5724 of 2020

Judgment of: Judge Obradovic

Hearing date: 27 January 2021

Date of Last Submission: 27 January 2021

Delivered at: Parramatta

Delivered on: 3 February 2021

REPRESENTATION

Counsel for the Applicant: Mr O’Brien of Counsel

Solicitors for the Applicant: Mason Mia & Associates-Solicitors & Advocates

Counsel for the Respondent: Ms Dart of Counsel

Solicitors for the Respondent: King Cain Solicitors

Appearing for the Independent Children’s Lawyer: Ms Thompson

Solicitors for the Independent Children’s Lawyer: Thompson Madden Solicitors

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The applicant mother and respondent father shall have equal shared parental responsibility for the child Y, born 2011 (“the child”).

2. The child shall live with the father.

3. The mother shall make the child available for collection by the father at 5pm on Thursday 4 February 2021 at her home in Town A.

4. The child shall spend time with the mother as follows:

   (a)If the mother remains living in Town A:

   (i)The second weekend each month in Town A from 7pm Friday until 5pm Sunday.

   (ii)The fourth weekend each month in the Town B local government areas from after school on Friday until 5pm Sunday.

   (b)If the mother moves to the Town B area:

   (i)Each alternate weekend from after school Friday to the commencement of school the following Monday.

   (c)For one half of each school holiday period after Terms 1 and 2 commencing with the first half in 2021 and alternating between the first and second half each alternate year thereafter.

   (d)For ten (10) days in the school holidays between Terms 3 and 4 from after school on the last day of Term 3.

   (e)For the following time during each of the Christmas school holiday periods:

   (i)In even numbered years:

   a.From after school at the end of Term 4 until 4pm on Boxing Day.

   b.From 7pm on 7 January until 7pm on 21 January.

   (ii)In odd numbered years:

   a.From 4pm on Boxing Day until 7 January 7pm.

   b.From 7pm on 21 January until 7pm on the Saturday before school commences.

   (f)From afterschool on the Mother's Day weekend until 5pm the following Sunday.

   (g)As otherwise agreed between the parents in writing.

5. The child's time with the mother shall be suspended on the Father's Day weekend.

6. The parent who does not have the care of the child may communicate with him by telephone or other electronic means (e.g. Skype, FaceTime or email) directly to the child’s mobile phone at such a time as is agreed but failing agreement no less than twice a week and for such a call to take place by 8pm and initiated by the parent.

7. For the purposes of the child spending time with the mother in Town A, the father will deliver the child to the mother at 7pm at Restaurant D and the mother shall return the child to the father at 5pm at Restaurant D at the conclusion of such time.

8. For the purposes of the child spending time with the mother in the Town B area, the mother is to collect the child from school at the conclusion of the school day on a Friday and return the child to the father's home at the conclusion of their time together or to school at the commencement of the school day on a Monday, as applicable.

9. Each parent shall inform and keep the other parent informed of their current residential address, mobile telephone number and email address and shall, so far as reasonably possible, provide not less than seven (7) days’ notice of a change of any such details that must otherwise provide the information within 24 hours of the change occurring.

10. In the event that the child suffers from serious illness or is hospitalised, the parent who is caring for him shall notify the other parent as soon practicable of the nature of the illness or injury and the name and contact details of the health facility or health practitioner who is treating the child.

11. By this Order, any medical or other health professional including any counsellor who treats the child shall be authorised by the parent who is caring for him at that time to provide to the other parent all reasonably requested information about the child relevant to treatment, diagnosis, prognosis and ongoing care.

12. Each party is permitted to obtain from any school or extracurricular activity attended by the child, copies of all reports, photographs, order forms and any other information that the parent may reasonably request of the organisation or group in connection with the child as permitted by law and at their own expense.

13. Pursuant to s.11F of the Family Law Act1975 (Cth), the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference on 29 March 2021 and:

    (a)The parties shall continue to attend at such times, dates and places as the consultant may advise;

    (b)The parties and each of them shall do all things necessary to ensure the attendance of their child the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

    (c)The Family Consultant is requested to provide to the Court and to the parties (unless in the Consultant’s view it is inappropriate to do so), a memo outlining and reporting on:

    (i)Any agreement reached between the parties;

    (ii)The issues raised by the parties and which will require determination by the Court;

    (iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

    (iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

14. The matter is transferred to the Newcastle Registry of the Federal Circuit Court before Judge Costigan at 12 noon on 14 April 2021.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5724 of 2020

MS DALGREN

Applicant

And

MR HAILES

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) in respect of competing interim parenting applications concerning the child Y, born 2011.

2. The applicant in these proceedings is the mother, Ms Dalgren born 1989, and the respondent is the father, Mr Hailes, born 1988.

3. The issue to be determined by the Court at interim hearing is with whom the child is to live with and what time the child should spend with the other parent.

4. There are a few agreed facts between the parents and as far as relevant they are as follows:

   a)The parties commenced cohabitation in or about 2010.

   b)Their only child, Y was born 2011.

   c)The parties separated in or about June 2013 and September 2014.

   d)In or about 2015, the father commenced a relationship with his now wife. They have two children together.

   e)Prior to term 4 in 2020, Y had been attending  Public School in Town A where he had been enrolled since starting kindergarten in 2017.

   f)In or about late September 2020, the father advised the mother that he and Y would be relocating to Town C from 30 September 2020.

   g)On or about 28 September 2020, the mother through her solicitor advised the father that she did not consent to Y relocating to Town C.

   h)On or about 30 September 2020, the father and Y relocated from Town A to Town C.

   i)During term 4 in 2020, Y was enrolled in and attended Public School in Town C.

   j)The parents had agreed that Y spend the first half of the 2020 Christmas School holidays with the mother, and such time commenced on 19 December 2020.

   k)Despite the parents’ agreement that Y return to his father’s home on 9 January 2021, Y has remained with the mother and has not spent any time with the father since 19 December 2020.

Court’s Determination

1. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.

2. Even in such constrained circumstances, the Court is still required to determine the applications before it.

3. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

4. The Independent Children’s Lawyer (“ICL”) submitted to the Court that she has spoken to Y, who has expressed a view that he would like to stay living with the mother in Town A and that he prefers his school in Town A to the school in Town C. The ICL submitted that Y was not “terribly unhappy” about living with the father. There is no independent evidence about the child’s wishes, and his statement to the ICL was made in circumstances where he had been spending the entire school holiday in the mother’s care and had not seen his father.

5. The mother submits that Y has a poor relationship with his stepmother, and that he had been undergoing counselling for a period of six months prior to October 2020. She says further that she was not involved in such counselling. The mother does not explain from whom she learnt that the child was attending counselling and why she was not involved. She has not sought to produce any notes from the counselling service to the Court. The mother also asserts in her evidence, that Y has told her that the father’s wife has been verbally abusive towards him, by calling him a “little shit”.

6. The father’s evidence is entirely silent in respect of the counselling which Y has been attending, except that during submissions, the Court was advised that it was not conceded that the purpose of the counselling was as stated in the mother’s evidence. Both the father and his wife give evidence that Y has a strong and positive relationship with his stepmother.

7. The mother does not seem to assign any value, through her evidence or submissions, to the sibling relationships Y has in his father’s home. The father’s case is that Y is strongly attached to his siblings.

8. On the evidence, the Court is not able to make any findings about the quality of Y’s relationship with his stepmother. However, there is no evidence which would suggest that if the relationship is poor like the mother asserts, that Y is placed at an unacceptable risk of harm when in the father’s care. The mother does not raise any concerns about Y’s relationship with his stepmother prior to the move to Town C (except to the extent that she says he attended counselling and submits on this basis that there were problems in the relationship, which have not been articulated).

9. The mother has been in a relationship for the past twelve months. She does not give any evidence of residing with her current partner, despite a number of her affidavits being relied upon in these proceedings. Her partner however, says that they have been living together for 10 months. There is no evidence of Y’s relationship with the mother’s partner. The father submits to the Court that he was not aware until reading the partner’s affidavit filed two days before the interim hearing, that the mother was cohabiting with her current partner.

10. The mother raises concerns about the care which has been provided to Y between late September 2020 and early December 2020. She asserts in essence that the child is not looked after properly, that he was not being supervised properly, that his hygiene needs are not being met, that his health is not being looked after and that his overall physical and emotional needs are not being met. She says that the reason why she did not return him to the father’s care in early January 2021, was because of her “concerns over what had been occurring at Town C since Mr Hailes relocated”.

11. These concerns appear to be new and similar concerns and have not been raised in relation to the father meeting Y’s needs prior to the move to Town C. This is notable, given that on the mother’s evidence, since 2018, Y was spending at least half of each week and half of each school holiday period living with the father. What the mother says in her evidence is that on the one occasion when she visited the father’s home (on an unstated date) she was concerned about the state of mess and uncleanliness on that occasion.

12. The father raises concerns about the mother’s capacity to be available to care for Y on a full-time basis. He submits that prior to his move to Town C from the date of separation, he has always been available to care for Y and indeed that he was the primary carer.

13. The father outlines in his affidavit some problems which he raised with the mother in early 2018 about her lifestyle choices, and that there were different arrangements in place for a while for Y’s care as a result of these concerns.

14. In addition, the father raises some concern about illicit substance use by the mother as a result of what he and his partner have been told by third parties. The evidence does not support an order for the mother to be subjected to any form of drug testing, although these may be appropriate actions for the mother to take on her own volition given the issues raised in the proceedings.

15. The parties are significantly in dispute as to the post-separation care arrangements for Y, with the mother asserting that the parties cared for Y on a close to equal shared care arrangement, whilst the father asserts that he has been Y’s primary carer and that the mother was unreliable and would often not spend time with Y despite agreements that she do so.

16. Noting that the parents are not in agreement as to the care arrangements for Y prior to September 2020, and given that the evidence remains untested, the Court is not in a position to make any findings of fact about such contested issues.

17. However, even on the mother’s evidence, the father was significantly involved in Y’s day to day care, including before and after pre-school and school, even when he was not spending the night at the father’s home, and on weekends. The mother says that the child support agency assessed the father as having 57% of Y’s care in 2019.

18. The mother says in her evidence about the Public School in Town A:

    There have been instances recently which have resulted in me not receiving any phone calls from his teachers regarding Y’s progress and reports. When I have chased the school up about this, it (sic) became aware that they were led to believe that the stepmother was Y’s mother and that my contact details had been removed from the school’s data base. At no time have I requested that I not be contacted by the school or that my details be removed.

19. There is no evidence in the mother’s case from the school. While corroborating evidence is not necessary per se, in circumstances where the enrolment form lists the mother’s details, it is difficult to reconcile what the mother says with other evidence in the proceedings. What the mother’s evidence does however, is that it points to a likelihood that the mother had very little interaction with the school and Y’s teachers, and thus through her own lack of interaction, was not readily identified by the school as Y’s mother.

20. The father asserts that in early 2020, together with his wife, he had a number of conversations with the mother about a proposed move to the Area E of New South Wales. The father says, as is reflected in his text messages to the mother, that the parties had reached an agreement that Y would move with the father (and the father’s family). The father also says that the mother indicated that, if Y moved, she would also likely move to that area.

21. The mother says that there was no such agreement in early 2020 or at all. What she does say is “On 11 September 2020, Mr Hailes and I attended mediation… which was initiated by Mr Hailes to discuss some ‘issues’ about relocation and other matters. No agreement was reached at this mediation…”

22. It is therefore clear that the mother was aware in early September 2020 that the father was intending to relocate. There is an available inference from her evidence that she was not opposed to Y relocating at the time of mediation, and that the reason for the mediation was to discuss arrangements for time. Although the inference is available, it is not drawn. It is not imperative for the purposes of the Court’s determination of the interim issues, that there be any determination of whether or not there had been an earlier agreement between the parents as to Y’s proposed relocation. Even if there had been, it is clear that as at late September 2020, the mother’s position as communicated through her lawyers, was that she did not agree to such a move.

23. However, the mother’s solicitor’s letter of 28 September 2020 must be read and understood in the context of what occurred at the time that the letter was sent.

24. The parents were at that time communicating via text and making arrangements about when Y was to come into the father’s care. During these discussions, which are reproduced in the mother’s affidavit, starting on or about 25 September 2020, there is a clear inference that the mother was aware that the father had been going to Town C on the weekends. The father then enquired whether the mother had received his letter, which he then forwarded to her on Saturday, 26 September 2020. The letter was dated 19 September 2020, and advised that Y would be moving with the father on 30 September 2020, to start school in term 4 in Town C.

25. After being provided with a copy of the father’s letter on 26 September 2020, the mother remained entirely silent as to what is contained therein until her solicitor sent an email to the father on Monday, 28 September 2020. Between the time a copy of the father’s letter was provided to the mother on 26 September 2020, and the mother’s solicitor’s letter, there appears to be an implied acquiescence by the mother to the father’s proposal as a result of test messages exchanged by the parties during that closed period. The father said to the mother in two text messages sent on the morning of Sunday, 27 September 2020:

    Well the 30^th is my last day of work, then I intend on leaving that afternoon after I pick him up. Can you guarantee I will get him back on Wednesday.

    Hello, I need a guarantee that I am going to get Y back on my last day the 30^th or I will be unable to bring him back today as he has had a big week saying goodbye to his friends and is starting at School C in term 4 and I cant (sic) jeopardies his schooling. He has also expressed to me numerous time over the last week that he is excited to start his new school.

26. The mother did not respond to either of these two text messages except to ask what time the father would be dropping Y to her. There is then a further short exchange and then in answer to the father’s further request “Can I have your word that you will give him to me at 3:00pm on Wednesday?” the mother replies with “No worries”.

27. It must have been clear to the mother that the father was intending to take Y to Town C on 30 September 2020, yet not once did she say anything during this text exchange which might have indicated to the father that she did not agree to the course proposed.

1. What followed next was the mother’s solicitor’s email of 28 September 2020, which in unequivocal terms set forth the mother’s position that she did not agree to Y relocating from Town A.

2. On 30 September 2020, shortly prior to Y coming into the father’s care, a further text exchange occurred between the parents:

   Mother (at 12.36pm):     Hello, Y will be ready for pick up at 3pm from my house. I will need to verify that you will not be relocating his place of residence from the Town A Regional Council Area, as per my recent legal correspondence.

   Father (at 3:09pm):        … Can you send Y out please as per our agreed arrangement on Sunday please.

   Mother:… I am still awaiting a response as per my last message.

   Father:My position hasn’t changed as to our original agreement. I have made plans with Y for the remainder of the week and would appreciate being able to follow through with them please.

   Mother:We never had an agreement other than shared custody – I expect him back in my care on Monday at 3pm as per our mutual ongoing agreement.

3. The father picked Y up and took him to Town C, where he remained living until 19 December 2020. Y attended the local public school and he spent time with the mother for his birthday in Town B and for the weekend of 20-22 November 2020 in Town A.

4. The mother commenced proceedings on 26 October 2020, seeking inter alia, that the matter be listed at short notice, an application which was not granted. The father filed a response on 24 November 2020. The first listing of the matter was on 25 November 2020, when a number of procedural orders were made including, listing the matter for interim hearing on 27 January 2021.

5. It is a poor reflection on the mother that in the face of the competing and unresolved interim parenting dispute, which was to be heard on 27 January 2021 and despite the parents’ agreement that she do so, she had failed to facilitate Y spending any time with the father during the Christmas school holidays just passed, and that she retained the child contrary to the parties’ agreement.

6. This has resulted in a situation where on the mother’s evidence, Y who had been living with the parties in an almost equal shared care arrangement until September 2020, and then with the father for a period of two plus months (whilst having the opportunity of spending time with the mother) has been denied a face to face relationship with his father.

7. The mother did not explain in her evidence (nor were any submissions made about the matter) as to why she has failed to facilitate any form of face-to-face relationship between Y and his father, and Y and his siblings in the father’s home.

8. While it can equally be said that it is a poor reflection on the father that he relocated Y’s residence in the face of the mother’s opposition communicated to him on 28 September 2020, on his evidence he did so in light of an earlier agreement.

9. The father’s actions prior to the move appear, at least prima facie, to be consistent with his evidence about an agreement reached with the mother in early 2020. The father’s wife and two other children went ahead of the father to Area E in August 2020, the father applied for and accepted a position in Area E and the father resigned from his position in Town A with notice. It is inferred from the mediation and the text discussions between the parties that the mother was aware of the father’s preparations for the move at least as at early-mid September 2020. Indeed, there is no evidence of any direct communication from her to the father prior to 28 September 2020, where she makes her objection to the relocation known.

10. It is clear that even with the relocation which the mother objected to as at 28 September 2020, the father has facilitated time between Y and the mother, and had at all times proposed that such time be facilitated.

11. The Court is well aware that the length of time that it will take for the matter to be determined on a final basis will likely mean that the interim arrangement will be in place for a significant period of time, possibly 12-18 months[1].

    [1] Further depending on if and when a family report is ordered

12. This is a finely balanced case.

13. On the one hand, if Y remains in Town A he will continue to attend the same school he attended for almost four years, he will likely continue to have the same circle of friends he has had and he will continue to live in the home of his mother which has been familiar to him for some years. He will, on the mother’s proposal, have the benefit of some time with the father and also by extension, his siblings. However, the mother has failed to facilitate any face-to-face time between Y and the father since 19 December 2020, and she has acted contrary to an agreement reached between the parents about Y being returned to the father on 9 January 2021. While a cynic might view such actions as opportunistic, the mother has provided an explanation for her actions which is yet to be tested.

14. On the other hand, if Y returns to live in Town C, he will continue to attend the same school he attended for one term in 2020, he will likely continue to develop his new friendship groups, and he will continue to live in the home of his father which is not entirely new to him. He will, on the father’s proposal, have the benefit of time with his mother. The Court accepts that the father will facilitate the time proposed, including any additional time when the mother might otherwise be in the Town B area.  

15. What mostly tips the balance, ever so slightly in the father’s favour, is the mother’s failure to facilitate face-to-face time between Y and the father during January 2021. This is in light of the mother’s actions in reneging on the parent’s agreement which was not communicated to the father until the day they had agreed that Y would return to the father’s care, all whilst these proceedings were on foot and awaiting the interim hearing.

16. In addition to other matters discussed earlier overall, what also adds to the balance in the father’s favour, are Y’s relationships (which must be assigned some value) with his siblings and the total denial of those relationship by the mother since 19 December 2020 to the date of the interim hearing, except through some telephone calls or X-box chat.

17. In circumstances where Y will be living with the father in Town C, it is appropriate that the matter be transferred to the Newcastle Registry of the Federal Circuit Court of Australia. The Court appreciates that this issue was not canvassed with the parties at interim hearing, but it is an order that is nonetheless appropriate and procedural in nature only. It is a registry which is closer to the father’s residence, and while further away from the mother’s residence, a registry which may have child dispute service resources more readily available than the Parramatta Registry.

18. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 3 February 2021