Dodd and Clare

[2016] FCCA 2049

FEDERAL CIRCUIT COURT OF AUSTRALIA

DODD & CLARE [2016] FCCA 2049

Catchwords:
FAMILY LAW – Children – Parenting Orders – residence – where father relocated residence of children to Queensland – two children aged 12 and 10 years – best interests of the children – views of the children considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Dodd & Clare [2013] FCCA 795

Applicant: MS DODD

Respondent: MR CLARE

File Number: SYC 3828 of 2011

Judgment of: Judge Scarlett

Hearing dates: 17-19 June, 8-10 October 2014

Date of Last Submission: 10 October 2014

Delivered at: Sydney

Orders pronounced: 26 June 2015

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the Respondents: Mr O'Connor

Solicitors for the Respondents: AJ & Associates Lawyers

Counsel for the Independent Children's Lawyer: Mr Fermanis

Solicitors for the Independent Children's Lawyer: Gonzales & Co

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage X born (omitted) 2003 and Y born (omitted) 2005.

3. The children X and Y are to live with the Father.

4. The children X and Y are to spend time with the Mother as follows:

   (a)On the third weekend of each school term from immediately after school on Friday until before school on the following Monday;

   (b)On the sixth weekend of each school term from 6:00pm on Friday (Queensland time) until 2:30pm (Sydney time) in Sydney;

   (c)For the entire Children’s actual school holidays at the end of Terms 1, 2 and 3 commencing from the Tuesday at 5:00pm immediately after the conclusion of the school term until the Friday at 5:00pm immediately prior to the commencement of the school term;

   (d)For half of the long school holidays in the Christmas/New Year holiday period as agreed by the parties and failing agreement:

   (i)In even numbered years from the conclusion  of school until 5:00pm on the midpoint of those holidays;

   (ii)In odd numbered years from 5:00pm on the midpoint of those holidays until 5:00pm on the Friday immediately prior to the commencement of Term 1;

   (e)On the Mothers’ Day weekend each year from 6:00pm on the Friday (Queensland time) until 2:30pm on Sunday (Sydney time);

   (f)For the (religion omitted) festivals from after school (or in the event that the children are not at school that day from 3:00pm) on the day before the relevant (religion omitted) festival begins until before school (or in the event that the children are not at school that day until 9:00am) on the day after that particular (religion omitted) festival ends; and

   (g)At such other times as the parties may agree.

5. The Mother’s time with the children in accordance with these Orders is suspended for the entire weekend of Fathers’ Day in each year.

6. The parties are to communicate with the children each Tuesday and Thursday at 7:00pm when the children are in the care of the other party with such communication to be including but not limited to Skype, telephone, webcam or Facetime. The party with whom the communicating children are living at the time must facilitate the communication with the other party and give the children privacy whist they are communicating with the other party. For the purposes of this Order, when the children are living with the Father the time will be according to (Queensland) time. When the children are otherwise spending time with the Mother in accordance with these Orders the time will be according to Sydney time.

7. For the purpose of the Mother’s time with the children in accordance with Order (4)(a) above the Mother is to collect the children from the children’s school at the conclusion of school on the Friday and return the children to the Father at his residence on the Sunday.

8. For the purposes of the Mother’s time with the children in accordance with Orders (4)(b), (4)(c), (4)(d), (4)(e), (4)(f) and (4)(g) above the children will fly by domestic airline between Sydney, Brisbane and return, unaccompanied on a flight scheduled so as to depart as near as possible in time to the said times of commencement and conclusion of the Mother’s time and the Father is to pay and arrange for the flight from (Queensland) to Sydney and the flight from Sydney to (Queensland).

9. The parties are restrained by injunction from criticising or denigrating the other party in the presence or hearing of either of the children or permitting any other person to do so.

10. The parties are restrained from discussing these proceedings or showing or releasing any Court document relating to these proceedings to any other person or organisation except a part to these proceedings or their legal advisers.

11. The parties are restrained by injunction from discussing with either or both of the children any allegations or disclosures made in these proceedings and use their best endeavours to ensure that other people do not do so.

12. The parties must keep each other informed of their current residential address, landline and mobile telephone numbers and email address and advise each other of any changes within twenty-four (24) hours of that change occurring.

13. Each party must inform the other party within six (6) hours or as soon as reasonably practicable of any medical or other emergency relating to the children and provide all necessary authorities to the other party to attend on that emergency.

14. The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend upon and authorise the practitioner or hospital to provide to the other party at his or her request and expense any information or reports concerning the children provided that this Order is sufficient authorisation to do so.

15. Both parents are entitled to attend all events involving the children, including but not limited to:

    (a)Sporting fixtures;

    (b)Extra-curricular activities that allow for attendance by parents special or religious functions that the children are to attend or to which parents are invited;

    (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions and the parent who has the children in his or her care on the day of that event or activity will be responsible for the children’s day to day care at that event or activity and the transportation of the children to and from that event or activity unless the parties agree otherwise.

16. The Father must authorise and keep authorised any school that the children may from time to time attend to supply the Mother at her expense school reports, school photographs, school newsletters and any other information that the school may from time to time supply to parents and authorisation will be deemed effected by the Father providing to any school a copy of this Order.

17. The Father and Mother are each to ensure that the other parent is informed of:

    (a)any illness or injury suffered by the children whilst the children are in their care necessitating a visit to a doctor or hospital;

    (b)any medication that has been prescribed for the children;

    (c)any social, school or religious function that the children are to attend; or

    (d)any other matter relevant to the children’s welfare.

18. The Independent Children’s Lawyer is discharged at the expiration of twenty-eight (28) days after the date of this Order.    

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3828 of 2011

MS DODD

Applicant

And

MR CLARE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of two children, X aged 12 and Y aged 10, for orders that the children should return to live in Sydney with her. The children are currently living in Queensland with their father.

2. The Father, who has re-partnered, seeks that the children should remain living with him in Queensland where he now runs a (business omitted).

Background

1. The parties were married on (omitted) 2002 and separated under one roof at the end of March or the beginning of April 2009. They finally separated physically o 16^th November 2010.

2. There are two children of the marriage.

3. The parties’ son X was born on (omitted) 2003 and their daughter Y was born on (omitted) 2005.

4. Each of the parents has re-partnered.

5. From the middle of 2012 onwards the Father was telling the Mother that he wished to move to Queensland. The children were spending more time with their father and, in March 2013, he moved to Queensland against the Mother’s will.

6. The Mother commenced proceedings on 3^rd April 2013.

7. On 4^th July 2013 I heard an Application for interim parenting orders but declined to order that the Father should return the children to live with their mother in Sydney. I ordered that until further Order the children would live with the Father and spend time with the Mother during school holidays and on one weekend each school term.

8. There were allegations of family violence during the marriage.

9. I ordered that the children’s interests should be independently represented by a lawyer under s.68L of the Family Law Act 1975 (Cth). I ordered a Family Report.

The Family Report

1. The Family Report was completed on 1^st October 2013. The Family Consultant interviewed the parents, the Father’s new wife and the Mother’s partner, Mr H. She also interviewed the children.

2. The children were very clear in their views that they wanted to keep living with their father in Queensland:

   Y said that she prefers living with her father ‘because Mum doesn’t let me do things by myself but Dad does. Like the dishes. I can make things by myself but Mum doesn’t let me. Dad looks after me but he lets me do things by myself”

   Y expressed a desire to keep the current arrangements for spending time with her mother.[1]

   [1] Family Report page 17 paragraphs [52]-[53]

3. Again:

   X reported that the move to Queensland has been fun. He said that he really likes his new school and he has made some good friends. He said that he is looking forward to playing rugby league next year.

   X said that he enjoys doing things like going to the beach, the park and the movies.[2]

   [2] Family Report page 17 at paragraphs [55]-[56]

4. The Family Consultant said in her evaluation:

   On balance, the relocation to Queensland of the children is supported. It is imperative that the children spend a substantial amount of time with (the mother).[3]

   [3] Ibid at [74]

Submissions

1. Counsel for the Applicant Mother and the solicitor for the Respondent, not surprisingly, made submissions supporting the cases of their respective clients. The Independent Children’s Lawyer supported the children remaining living with their father in Queensland and spending time with their mother, noting the children’s expressed view.  

Applications for Parenting Orders

1. A Court deciding whether to make parenting orders should consider not only s.60CA of the Family Law Act 1975 (Cth), which requires the Court to regard the best interests of the children as the paramount consideration, but also ss. 60B, 60CC, 61Da and 65DAA of the Act.

2. I have considered all of those matters.

Conclusions

1. It is hard to move away from the view that the children are settled and happy living with their father and step-mother in Queensland. They expressed positive and enthusiastic views to the Family Consultant about their life and activities. They would be unlikely to react positively to an order requiring them to return to live with their mother in Sydney.

2. S.60CC(3)(a) of the Family Law Act 1975 requires the Court to consider:

   any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

3. I consider that it is quite clear that these children are of sufficient maturity and level of understanding, noting the evidence of the Family Consultant, that the Court should give the children’s views significant weight.

4. The clear views of the children, while not the only factor, amount to a deciding factor in reaching the conclusion that it is in their best interests to remain living with their father in Queensland and spending a significant amount of time with their mother.

5. This is a matter where it is in the children’s best interests for the parents to have equal shared parental responsibility for them. I have considered the matters under s.65DAA and I am satisfied that equal time with each parent would not be reasonably practicable due to the tyranny of distance.

6. I will order that the children spend as much time with their mother as can be reasonably arranged, particularly during the school holidays, so that they will be able to maintain a meaningful relationship with her,

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 22 July 2016