Donovan and Hargrave
[2010] FMCAfam 1458
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2010] FMCAfam 1458 |
| FAMILY LAW – Children – Interim Parenting Orders – best interests of the children – two boys aged 13 and 10 years living with father – whether children alienated from the mother – equal shared parental responsibility – appointment of Independent Children’s Lawyer – insufficient evidence to place children’s names on the Airport Watch List. |
| Family Law Act 1975, ss.11C, 11F, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L, 68LA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Petrie |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| The Respondent: | In person |
ORDERS
All earlier parenting orders are discharged.
The children of the marriage [X] born [in] 1997 and [Y] born [in] 2000 are to live with the father.
The parties are to have equal shared parental responsibility for the children [X] and [Y].
The mother is to have sole parental responsibility for the day to day care of the [X] and [Y] during the time that they spend with her.
The father is to have sole parental responsibility for the day to day care of the children during that they spend with him.
The interests of the children [X] and [Y] are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.
The parties are to forward copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed seven (7) days.
UNTIL FURTHER ORDER the children are to spend time with the mother as follows:
(a)From directly after school to 7.00 pm each Monday during school term time;
(b)From 9.00 am to 5.00 pm each Sunday during school term time;
(c)From 9.00 am to 7.00 pm each Monday during the school holidays commencing on 27 December 2010;
(d)From 9.00 am to 7.00 pm each Sunday during the school holidays commencing on 2 January 2011;
(e)From 2.00 pm until 7.00 pm on Christmas Day;
(f)From 9.00 am until 7.00 pm on Boxing Day;
(g)For a period of not less than three (3) hours on each of the children’s birthdays;
(h)From 9.00 am to 5.00 pm on Mother’s Day; and
(i)At such other times as the parties may agree.
The father is permitted to take the children out of the Sydney Metropolitan Area for the purposes of a holiday for period of up to 14 days after 3 January 2011 PROVIDED THAT he provides to the mother an itinerary setting out the times and dates of travel and addresses at which the children will be staying.
For the purposes of order (8)(a), the mother is to collect the children from their respective schools once school finishes on a Monday and return the children to the father at the McDonald’s Family Restaurant at [address omitted] in the State of New South Wales.
For the purposes of Order (8)(b) to (i) inclusive, the mother is to collect the children from the father and return the children to the father at McDonald’s Family Restaurant [address omitted].
Both parties are restrained from denigrating or criticising the other parent or any member of the other parent’s family in the presence or hearing of the children or from permitting any third person to do so.
The mother may communicate with the children or either of them by telephone each Tuesday, Thursday and Saturday between the hours of 6.00 and 7.00 pm and the father is to do all things necessary to permit the children to receive telephone calls from the mother during that time.
The mother may communicate with the children by email at all reasonable times.
In the event that either parent is unable to care for the children during the times when the children would be in that person’s care, then that parent is to advise the other parent and give the other parent the option to care for the children during the relevant period.
The parties must within twenty-eight (28) days notify the children’s school or schools of the mother’s name and contact details.
The father must within twenty-eight (28) days authorise the children’s school or schools to provide to the mother at her request copies of all school reports, newsletters, notification of school photographs and other information normally provided to parents on a regular basis.
The mother is permitted to attend the children’s schools for the purpose of parent teacher interviews and school events at which parents normally attend.
The parties are to give each other seven (7) days written notice of any proposed change to their home address and telephone contact numbers.
The parties must notify each other as soon as possible if either of the children suffers any serious medical emergency or illness whilst in their care.
Neither party is permitted to use any physical discipline on the children.
Neither party is permitted to interrogate the children about events or conversations that occur in the household of the other parent.
The parties are restrained from removing the children from the schools which they are presently attending without the consent of the other or order of the Court.
The mother must within fourteen (14) days deliver any passports relating to the children to the Registrar of the Federal Magistrates
Court at the Sydney Registry of the Court at 97-99 Goulburn Street Sydney to be held until further Order of the Court.
The application is adjourned to 18 January 2011 for further mention at 11:30 am.
IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders by the mother of two boys aged 13 and 10 years to spend time with them. They live with their father, who claims that they are “scared” of her.
Orders Sought
The mother seeks interim orders:
a)That the parties have equal shared parental responsibility for the boys;
b)That the parties have sole responsibility for the boys when the boys are with each party;
c)That the children live with the father;
d)That the children spend time with her:
i)From 5.00 pm on Saturday until 9.00 am Tuesday in each week, with the exception of the last weekend in each month, which is to be with the father;
ii)From 2.00 pm on Christmas day until 5.00 pm on Boxing Day;
iii)From 5.00 pm on Saturday 1 January to 9.00 am Tuesday 18 January 2011;
iv)On the children’s birthdays for not less than three hours;
v)From 9.00 am to 5.00 pm on Mother’s Day;
vi)For half of the school holidays from the end of Term One in 2011; and
vii)At such other times as the parties agree.
e)That changeover between the parties be at the McDonald’s Family Restaurant at [address omitted], New South Wales; and
f)Other ancillary orders.
The father seeks interim orders that:
a)The children should live with him;
b)The parties should have equal shared parental responsibility for the children;
c)That each party should have day to day care and control of the children when the children are in their care;
d)That the mother spend time with the children from 4.00 pm to 7.00 pm each Monday, except during public holidays and school holidays, and at agreed times on the children’s birthdays;
e)That the mother is to return the children’s passports to the father;
f)That the mother is restrained from removing the children from Australia and that their names be placed on the Airport Watch List; and
g)Other ancillary orders.
Areas of Agreement
The parties agree that:
a)they should have equal shared parental responsibility for the boys;
b)each one should have responsibility for the day to day matters of the boys’ when the boys are spending time with that party; and
c)the boys should live with their father.
Issues in Dispute
The parties are in fundamental disagreement about the amount of time the boys should spend with their mother. The father claims that the mother virtually abandoned the boys and they are now scared of her and, in effect, alienated from her.
The mother claims that the father has attempted to shut her out of the boys’ lives, even to the extent of nominating his new wife as the children’s mother on the records of the children’s school.
Background
The applicant mother was born [in] 1971. She is 39 years old. The father was born [in] 1969. He is therefore 41 years old. Both parties are of Vietnamese origin but reside permanently in Australia. They were married in Vietnam on [date omitted] 1993.
The mother is a [occupation omitted] who operates two [businesses]. The father is a [occupation omitted].
There are two children of the marriage, both boys. [X] was born [in] 1997 and [Y] was born [in] 2000. [X] is 13 years old and [Y] is 10 years old.
The parties separated under the one roof on 24th December 2006, according to the father,[1] and “approximately 1 ½ years prior to physical separation”, according to the mother.[2] They separated physically when the father left the matrimonial home on 2nd April 2010, according to the mother[3], or about 2nd February 2010, according to the father.[4]
[1] Affidavit of Mr Hargrave 8.12.2010 at paragraph [10]
[2] Affidavit of Ms Donovan 2.11.2010 at paragraph [3]
[3] Ibid
[4] Affidavit of Mr Hargrave 8.12.2010 at [11]
The parties were divorced in 2009.
The children commenced living with the father on 2nd July 2010. The father says it was “as agreed” because of the mother’s extensive working hours.[5] The mother claims in her affidavit that the father retained the children without her consent and did not return them until 16th July 2010. The children remained with her until 23rd July 2010.[6] The mother claims that the father then took the children and she did not see them again until 19th August 2010. The father took them back to his home on 20th August and the mother deposed that she had not seen them again up until the time she completed her affidavit to commence these proceedings.[7]
[5] Ibid at [14]
[6] Affidavit of Ms Donovan at [[12]-[13]
[7] Ibid at [15]-[21]
The mother claims that the children do not return her telephone calls.
The father has since remarried. His new wife has three children from two previous relationship, one of whom, a girl aged 8 years, lives with them full time. The older two children spend time with them on a regular basis.
The mother commenced this application on 3rd November 2010. The application was originally returnable on 31st January 2011 but, after review, was given the return date of 12th November 2000. The applicant was legally represented on that date, and the father appeared unrepresented.
An order was made that the parties should attend a Child Dispute Conference with a Family Consultant, under the provisions of s.11F of the Family Law Act. The conference was reportable under s.11C of the Act.
Interim parenting orders were made, providing that the mother was to spend time with the children from 4.00 pm to 7.00 pm every Monday.
The parties attended the Child Dispute Conference on 15th November 2010. The Family Consultant Memorandum to the Court showed that no agreement was reached about anything. The father offered the mother time with the children from 4.00 pm to 7.00 pm on Thursdays, which the mother said that she could not take, due to her work commitments.[8]
[8] Family Consultant Memorandum to Court 15.11.2010
The Family Consultant noted that there were significant child protection allegations, with each parent claiming that the children are scared of the other parent, and recommended that:
a)An independent children’s lawyer should be appointed; and
b)A Family Report should be prepared for the final hearing.
The parties attended Court on 21st December 2010 and an interim hearing took place.
The mother relied on her affidavit of 2.11.2010. The father, who appeared unrepresented, relied on his affidavit of 7th December 2010.
Submissions
Counsel for the applicant mother, Ms Petrie, submitted that the presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility could not be rebutted (Family Law Act, s.61DA). She submitted that the mother should be spending significantly more time with the children than was the case, and pointed out that the mother deposed in her affidavit that she did not have to work on Sundays and could take Sunday off if she wanted to. Further, the children’s maternal grandmother would be visiting Australia from Vietnam in early January and would be staying for six months.
The children needed to have a meaningful relationship with the mother, she submitted.
The father submitted that the children were scared of their mother, who, he claimed, interrogated them about the events that occurred in the father’s household. He to ld the Court that he had tried to initiate contact between the children and the mother, but without much success.
It was put to the father, who agreed, that during school term time the mother could pick the children up from school in the afternoon when she was spending time with them, rather than collecting them from the father’s home. The father also agreed that the Court should make an order that the children should spend all of Mother’s Day with the mother.
The father told the Court that he was planning to take the children away on a road trip during the school holidays and was also planning to take the children away for a holiday in Bali or New Zealand.
The father also took the view that the mother had abandoned the children and they were consequently unwilling to spend time with her.
Relevant Considerations
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The court determines what is in children’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
I have done so in this case.
The Court must also consider the presumption in s.61DA of the Act that it is in the children’s best interests for their parents to have equal shared parental responsibility, and consider whether that presumption should apply in the particular circumstances (see Goode & Goode[9]). In this case, there is no issue that the parties should have equal shared parental responsibility. The parties have each sought that order and, notwithstanding the mutual allegations that the children are “scared” of the other parent, I am satisfied that it is in the children’s best interests to make that order.
[9] [2006] FamCA 1346; (2006) FLC 93-286; (2007 36 Fam LR 422
These are interim proceedings, and there is a significant between the evidence of the parties. It does not follow that, having made an order until further order that the parents should have equal shared parental responsibility for the children, the Court will necessarily make that same order after a final hearing. Indeed, s.61DB provides that:
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
If the court decides that it is in the best interests of the children for the parents to have equal shared parental responsibility, the Court must look at the considerations in s.65DAA(1), which requires the Court to consider:
a)Whether the children spending equal time with each of the parents would be in their best interests; and
b)Whether spending equal time with each of the parents is reasonably practicable.
I have considered those matters, but I am not satisfied that the evidence before the Court is sufficient to find that it is in the children’s best interests for them to spend equal time with each parent. The evidence about the children’s wishes is conflicting.
The Family Consultant recommended that an independent children’s lawyer be appointed. There is provision to do so under s.68L of the Family Law Act. The criteria for making such an appointment are set out in the landmark judgment Re K[10]). They include:
a)Cases involving child abuse, whether physical, sexual or psychological;
b)Cases where there is an apparently intractable conflict between the parents; and
c)Cases where the child is apparently alienated from one or both parents.
[10] (1994) 17 Fam LR 537; FLC 92-461
Where an independent children’s lawyer is appointed, s.68LA(2) prescribes that the independent children’s lawyer[11] must:
a)Form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
b)Act in relation to the proceedings in what the independent children’s lawyer believes to be in the best interests of the child.
[11] Commonly known as the ICL
Conclusions
There is a conflict in the evidence that makes it difficult, if not impossible, for the Court to make findings of fact. I am certainly of the view that it is in the best interests of the children for their interests to be independently represented by a lawyer, and I will make an order to that effect, requesting Legal Aid NSW to assist in this regard. The children, at the ages of 13 and 10, are of an age where they speak freely to the ICL and express a view, to which the Court would have some regard. At the moment, the Court has no independent evidence of the children’s views, or the children’s maturity, other than their chronological ages, and levels of understanding in order to ascertain what weight should be given to those views.[12]
[12] See s.60CC(3)(a)
The primary considerations for the Court are:
a)The benefit to the children of having a meaningful relationship with both of their parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are allegations of harm by way of neglect made by the mother that the children are not being properly fed, that their homework is not being done, and that they are being left alone for long periods without adult supervision.[13]
[13] Affidavit of Ms Donovan 2.11.2010 at [60]
The father raises allegations of violence by the mother in grabbing the child [Y] by the hair and twisting his ear with great force, amongst other things.[14]
[14] Affidavit of Mr Hargrave 7.12.2010 at [24]
The father alleges that the mother has abandoned the children, whilst the mother claims that the father has attempted to exclude her from the children’s lives. In particular, she claims that the father has excluded her from decision-making by:
a)Unilaterally changing the children’s schools;[15] and
b)Notifying the Principal of [C] Public School that the fathers’ new wife was [Y]’s mother.[16]
[15] Affidavit of Ms Donovan 2.11.2010 at [44]
[16] Ibid at [47]
The father claims that the mother has refused to see the children when he has asked her to.[17]
[17] Affidavit of Mr Hargrave 7.12.2010 at [32] and [34]
There is sufficient evidence to form the view that the children may be alienated from the mother, but whether that is of her doing or part of a conscious act by the father is difficult to say. Clearly, the children need to be independently represented. I am of the view that they should see their mother more than for just three hours per week, and I note that the mother does not have to work on Sundays. She can spend time with the children then, and she can spend more time with them on Mondays during the school holidays.
The children’s maternal grandmother will be visiting Australia from early January, and it would seem to be important for the children to have some time with her during her stay (see s.60CC(3)(b)(ii)).
There are question marks over the relationship of the children with their mother (s.60CC(3)(b)(i)), the willingness and ability of the father to facilitate and encourage a close and loving relationship between the children and their mother (s.60CC(3)(c)), the capacity of each parent to provide for the children’s needs (s.60CC(3)(f)), and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents (s.60CC(3)(i)).
There are allegations of violence towards the children, albeit relatively low-grade (s.60CC(3)(j)), but no family violence orders in place (s.60CC(3)(k)).
It is a relevant consideration that the father has remarried since separation and his new wife has children of her own, who interact with these children (s.60CC(4A)). It would be expected that the new wife would be on affidavit for a final hearing and would be interviewed for the purposes of a Family Report.
The mother seeks an order forbidding the father from removing the children from removing the children from Australia and an order placing their name on the Airport Watch List maintained by the Australian Federal Police. The only evidence in support of these orders comes from the mother’s fears expressed in paragraphs 61 and 63 of her affidavit. The mother may have these subjective fears, but there is no objective evidence in support of those fears, and I am not satisfied that I should make such orders. The children’s passports can be surrendered to the Court.
Orders placing the names of children on the Airport Watch List should only be made on reasonable grounds.
The situation can be reviewed in January, before the children commence school, once an Independent Children’s Lawyer has been appointed.
I certify that the preceding fifty (500) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2011