Dodd and Clare

[2013] FCCA 795

FEDERAL CIRCUIT COURT OF AUSTRALIA

DODD & CLARE [2013] FCCA 795

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – relocation – best interests of the children – parental responsibility.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS DODD

Respondent: MR CLARE

File Number: SYC 3828 of 2011

Judgment of: Judge Scarlett

Hearing date: 4 July 2013

Date of Last Submission: 4 July 2013

Delivered at: Sydney

Delivered on: 4 July 2013

REPRESENTATION

Solicitor for the Applicant: Ms Weber

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the Respondent: Mr O’Connor

Solicitors for the Respondent: AJ & Associates Lawyers

Independent Children’s Lawyer: Ms Rutkowska

Solicitors for the Independent Children’s Lawyer: Gonzalez & Co

ORDERS

UNTIL FURTHER ORDER:

1. All earlier parenting Orders are discharged.

2. The Amended Application for Interim Orders filed on 24 May 2013 is dismissed.

3. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2005.

4. The children [X] and [Y] are to live with the Father.

5. The Mother is to spend time with the children as follows:

   (a)For one half of each of the Queensland school holidays as agreed between the parties and in default of agreement the first half of each school holiday period in odd numbered years and the second half in 2014 and even numbered years from then on;

   (b)For one weekend during each of the school terms as arranged by the parties from 5:00pm on the Friday evening to 5:00pm on the Sunday evening;

   (c)By telephone at all reasonable times including but not restricted to:

   (i)the Mother’s birthday;

   (ii)each of the children’s birthdays; and

   (iii)Mother’s Day.

   (d)On such other occasions as the parties shall agree.

6. For the purpose of the Mother’s time with the children as set out in Order (5)(a), the children are to spend time with the Mother in Sydney and the Father will pay the cost of the children’s return air travel between Bundaberg and Sydney.

7. For the purpose of the Mother’s time with the children as set out in Order (5)(b), the Father must pay for the Mother’s return air travel between Sydney and Bundaberg.

8. In the event that either child suffers an illness or injury requiring hospital treatment or specialist medical treatment, the party in whose care the children are at the time must inform the other party as soon as is reasonably practicable and, in any event within six (6) hours.

9. The Father must sign all documents necessary to authorise the Principal of the children’s school to provide to the Mother on a regular basis copies of school reports, newsletters, information about school photographs and other material usually provided to parents of children attending at school.

10. The parties are required to attend upon a Family Consultant at a time and place to be notified for the purpose of interviews for the preparation of a family report as provided by s.62G(2) of the Family Law Act 1975.

11. The Independent Children’s Lawyer is granted liberty to apply on seven days’ notice.

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

1. The application before the Court is an interim application by the Mother of the two children, [X] and [Y], which would involve the Father returning the children from Queensland, where they have relocated, back to New South Wales. 

2. The position is that the Mother, in fact, would seek that the children would live with her.  The Father has put to the Court that if the children were required to return to Sydney that he would not be able to relocate back with them and that would necessitate the children living with the Mother.  However, he opposes that because he claims that the children have been primarily in his care and the evidence seems to suggest that that is the case, at least since the end of 2011.

3. The Father claims that it is in the children’s best interests to remain living with him. He claims that he relocated to Queensland for economic reasons.  He was casually employed in Sydney but his work, involved in a business venture [omitted], has provided him with a regular source of income. 

4. It is the Father’s contention also that the children have settled well in their new home and have settled well into their school at [B] State School and that they do not wish to return to Sydney.  It is the Father’s view that the children prefer to live with him rather than their mother.

5. The Mother is of the view that the children’s views should not be given any great weight and that is a submission echoed by the Independent Children’s Lawyer, and that is due to their ages.  It is also inappropriate for children of the ages of these two children, being ten and eight, to be in a position to make such decisions. The Mother is also critical of the Father for the relatively low weight he appears to place on her parenting ability. 

6. The Court must weigh up the fact that the Father has relocated the children’s residence to Queensland without the consent of the Mother against the Father’s contention that the children have been primarily in his care and that if they were to return to the care of their mother they would not be nearly as well looked after and that they would not have the stability of an established routine and the attention given to their schooling and their meals that he can provide.

7. There is some evidence of family violence in the past which, indeed, led to one matter of assault occasioning actual bodily harm being dealt with without a conviction being recorded and a fine being imposed for a common assault.  The Court found the offence proved and it is not an acquittal, far from it.  It is certainly put that those matters of family violence are in the past and not relevant.  I would comment, of course, that two incidents of family violence are two incidents too many and the Court takes a very serious view. 

8. The Court must consider the primary considerations in section 60CC(2) and must weigh up the benefit to the children of having a meaningful relationship with both of their parents against the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

9. Subsection (2A) makes it clear that the need to protect the children from harm must be given the greater weight. In all parenting matters the Court is required by section 60CA of the Family Law Act to regard the best interests of the children as the paramount consideration. The Court determines what is in the children’s best interests by having regard to the primary considerations in subsection 60CC(2), to which I have already referred, and the additional considerations in subsection 60CC(3).

10. The Court must also, when making a parenting order, pay heed to the requirements of section 61DA of the Family Law Act, particularly the requirement under subsection (1) that:

    The Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.

11. That presumption does not apply in cases of abuse or family violence, and it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility. In interim proceedings such as this the Court has regard to subsection (3) of section 61DA which provides that the presumption of equal shared parental responsibility would apply unless the Court considers that it would not be appropriate in the circumstances for that presumption to be applied when making that order.

12. If, of course, the Court makes a parenting order that provides that children’s parents are to have equal shared parental responsibility for them, the Court must consider whether the children spending equal time with each of the parents would be in the children’s best interests, and reasonably practicable. 

13. If both of those requirements are met the Court must consider making an order to provide for the children to spend equal time with each of the parents. 

14. If the Court does not make such an order, the Court is required, under subsection 65DAA(2) of the Family Law Act, to consider whether the children spending substantial and significant time with each of the parents would be in the children’s best interests, and whether such an arrangement would be reasonably practicable and, if it is, consider making an order to provide for the children to spend substantial and significant time with each parent.

15. In my view, bearing in mind that these are interim proceedings, the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility, should apply and I propose to order accordingly. 

16. I am not, however, satisfied that, in the circumstances where the Mother intends to continue living in Sydney and the Father intends to continue living in the State of Queensland, that it would be reasonably practicable for the children to spend equal time with each of their parents, or that it would be reasonably practicable for them to spend substantial and significant time with each of their parents, and that is brought about by the very distance between the residences of the parents.

17. Overall, the Court must consider the best interests of the children.  I am not satisfied on any interim basis that it is in these children’s best interests to make an order removing them from the care of their father and placing them in the care of their mother.  There are arrangements in place which have been made for the Mother to spend time with the children and, indeed, they have been doing just that over these school holidays, which are part of the Queensland school holidays. 

18. I am conscious of the fact that the children have, on the evidence as it appears before me, spent most of their time in the care of the Father, certainly since about the end of 2011 or it may be earlier.

19. The Court is not in a position on an interim basis to make conclusive findings of fact when evidence conflicts because it is not in a position to test the evidence of the parties, and this has been referred to in the well known decision of Goode & Goode[1].  I am not satisfied that it is in the best interests of the children to order that their residence should be relocated back to Sydney. 

    [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

20. I propose to order that they will remain living where they are for the time being, until the matter can be decided at a final hearing when a full Family Report under the provisions of section 62G of the Act will be available. Accordingly, I make the following orders until further order.

21. What I propose to do is bring the matter back to Court for mention in approximately four months’ time as it will take that amount of time for a Family Report to be made available due to the resources available to the Court, and I am conscious of the fact that it is likely that a family consultant based in Queensland will be tasked to prepare the report.  So I will look at a date in November to bring the matter back for mention, and I am suggesting Tuesday 5 November if that is a date that would be convenient to the parties’ lawyers.  I will excuse the parties if they are represented on that day. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  12 July 2013