ELSEY & WAINWRIGHT

[2020] FamCA 550

FAMILY COURT OF AUSTRALIA

ELSEY & WAINWRIGHT [2020] FamCA 550

FAMILY LAW – CHILDREN – Interim – contested residence – orders made for the child to live primarily with the mother and spend regular time with the father

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Elsey

RESPONDENT: Ms Wainwright

FILE NUMBER: BRC 15493 of 2019

DATE DELIVERED: 2 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 2 June 2020

ORDERS PRONOUNCED: 4 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Wilsons The Family Lawyers

SOLICITOR FOR THE RESPONDENT: Emmerson Legal & Accounting Pty Ltd

Orders made 2 June 2020

1. That these proceedings be adjourned for Case Management Hearing at 9.30am on 4 June 2020 in the Family Court of Australia at Brisbane.

2. That all parties have leave to appear by telephone on 4 June 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 4 June 2020;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

THE COURT FURTHER ORDERS:

Preparation of Family Report

1. That a Family Consultant be appointed by the Senior Family Consultant of the Family Court of Australia Brisbane Registry in this matter to prepare a family report (“report”) pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

2. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children, X born … 2017 and Y born … 2018 (“the children”), and the factors contained in s.60CC of the Act the following opinions should be included:

   (a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

   (b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the children in the future.

3. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

4. That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the children for those appointments (unless otherwise advised).

5. That the Family Court of Australia be responsible for payment of the cost of preparation of the report.

6. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

7. That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone.  For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Release of report

1. That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

2. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)       A Children’s Court;

   (b)       A child protection authority;

   (c)       A State or Territory legal aid authority; and

   (d)       A convener of any legal dispute resolution conference.

3. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

Orders made 4 June 2020

1. That the Orders of Senior Registrar Spink made 8 May 2020 be discharged.

2. The parties have equal shared parental responsibility for major long term issues for the children X born … 2017 and Y born … 2018 (“the Children”).

3. The children live with the mother in Brisbane.

4. The children spend time with the father at all such times as may be agreed between the parents in writing and failing agreement as follows:

   (a)Each alternate Thursday from 10.00am to Monday at 5.00pm commencing today; and

   (c)For seven (7) days during the father’s annual leave provided the father gives the mother one month’s notice of his intention to spend this time with the children.

5. Should the father’s time with the children coincide with the Mother’s Day weekend 2021, the father is to return the children to the Mother at 5pm on the Saturday before Mother’s Day.

6. For the purposes of the Christmas period, in lieu of the time scheduled to commence on Thursday 17 December 2020, the children shall spend time with the father from 12.00pm Queensland time on 20 December 2020 with changeover to take place at B Town until 12.00pm Queensland time on 27 December 2020 with changeover to take place at C Town.

7. That at all times when the children spend time with the father, he shall be substantially present.

8. That for the purposes of the children spending time with the father, unless otherwise agreed, changeovers at the commencement of time on Thursday shall take place at B Town and changeovers at the conclusion of time on Monday shall take place at C Town.

9. That the parents communicate with the children at all reasonable times by telephone and Facetime and unless otherwise agreed in writing between 5.00pm and 6.00pm on Wednesday and Saturday when the children are not otherwise spending time with them.  For the purposes of such communication each parent will:

   (a)ensure that the children are available to receive the telephone call from the other parent and assist the children in facilitating the call;

   (b)arrange for the children to telephone the other parent on the following night between 5.00pm and 6.00pm should for any unforeseen reason the children not have been available to receive the ordered call; and

   (c)respect the children’s privacy when speaking with the other parent and not record or otherwise interfere with the children’s conversations.

10. The parents will advise one another immediately on the children experiencing any medical emergency or significant health event while the children are in their respective care and will provide particulars of any emergency treatment provided to the children and details of the relevant service provider.

11. The parents will advise one another within seven (7) days of any other non-essential medical/allied health treatment provided to the children and will provide the contact details of the relevant service provider/practitioner to the other party.

12. The parties are to give all necessary consents so that the other party may obtain:

    (a)from any day care or school attended by the children from time to time information in relation to the children’s educational progress and other day care or school related activities  and copies of day care or school reports, photographs, certificates and awards, at expense of the requesting party; and

    (b)any and all information required by the other party from the children’s treating medical or allied health practitioner and at the expense of that party.

13. Each party will advise the other of any change of contact telephone number, residential address or email, within twenty-four (24) hours of such change occurring.

14. During the time the children are with either parent, that parent will:

    (a)respect the privacy of the other parent and will not question the children about the personal life of the other parent;

    (b)speak of the other parent respectfully; and

    (c)not denigrate or insult the other parent in the presence of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

15. Either parent is to consult with the other parent and agreement reached before allowing or permitting either or both children to partake in a ‘high risk’ activity.

16. That the time the children spend with the father will proceed in accordance with the limitations as directed by the relevant State and Federal Governments of Australia in relation to COVID–19.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elsey & Wainwright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 15493 of 2019

Mr Elsey

Applicant

And

Ms Wainwright

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The application comes before me today by way of an application for review of a decision made by Senior Registrar Spink on 7 May 2020 arising from an interim hearing and submissions completed by 20 April 2020.  An application for review is a hearing de novo in accordance with the Family Law Rules 2004, and I approach the matter on that basis.

2. The history of this matter is not particularly controversial.  The father is currently 39 years of age; lives in D Town and works in a family business.  In the past, his activities, which are now more managerial, have required him to undertake some travel.  At times, his travel has been, it seems, facilitated by plane.

3. The mother is 34 years of age, currently living in Suburb J, a suburb of Brisbane.  She works in an administrative position currently, having obtained employment since moving to Brisbane for a company that has connections in the F Region (where the maternal grandmother lives) but also a head office in Suburb K.

4. Whilst the father currently works full-time approximately 50 hours a week, the mother’s work commitments are less, in the region of two to three days a week.  The parties, after commencing the relationship in 2014, married in 2017 and were blessed with two children, X born in 2017, who is now approximately two and a two half years of age, and Y born in 2018, who is 19 months of age.

5. It does seem that tensions arose in the relationship in late 2018, at which time the mother was still living in Suburb J as she preferred to give birth to the child Y in Brisbane and had taken up residency under a tenancy in that area.  The father was travelling a lot for work, but the mother did return with the children to D Town in January 2019.  I am told that although the parents have a home available to them in D Town, it has been the subject of renovations for well over 12 months.  They have, as a result, been living in a farmhouse on the father’s uncle’s property.  The quality of the farmhouse, the mother says, is not good.  Be that as it may, the parties separated in June 2019 when they were living on the uncle’s home on the farm.

6. Between June and November 2019 the parties, without the benefit of any legal orders, were able to organise regular time between the father and the children, generally, each alternate weekend Friday to Sunday and, appropriately, two periods a week on the Tuesday and Thursday for about two hours.  I am satisfied on the evidence that the mother had indicated a desire that she wished to move back to Brisbane with the children – having both lived and worked in Brisbane; having spent some four months there around the birth of Y and having a number of friends who she felt close to in Brisbane.

7. The father, as early as 9 July 2019 through his solicitor, had indicated to the mother he opposed her relocation with the children.  The mother asserts in her material that she believed the father in fact consented to her relocating, and that is an issue in dispute.  In or around November 2019, post-separation, the mother was exploring rentals and employment in the town of C Town.  C Town is approximately one and a half hours travel from D Town.  That might have been a good option however, I am told that the mother’s employment opportunity fell away and that, therefore, between October and November 2019, she lived primarily in the home of her mother in the F Region.

8. Although the father commenced property proceedings on 19 December 2019, on 21 September 2019 the mother confirmed to the father that she had moved to what she described as her new home in Suburb J.  The father spent about a week with the children from 27 December 2019 to 2 January 2020, and during that period, it appears, the mother took steps to move furniture from the D Town home the family had previously occupied, to Suburb J.  It is clear that all these actions that I have described have significantly increased the tensions between the parties such that on 10 January 2020 the father commenced parenting proceedings, the focus of which was that the children return to the D Town area, preferably, as is clear from his material, with their mother so that arrangements for regular time between the children and the father whilst living with the mother could be recreated.

9. The mother has indicated a preference to live in Brisbane and, in fact, through her solicitor today, indicates to the Court her intention to remain living in Brisbane and working as she is now with the support of, she says, her family and friends even if the Court would order, as is the father’s primary position, that the children live with him in D Town.  The views that the parents are expressing at this time will be the subject of, no doubt, further examination and assessment as a result of a family report I propose to order today, with interviews not likely until around August or so.

10. When the then competing parenting applications first came before Registrar Brooks on 28 January 2020, the Registrar ordered for changeovers to occur at G Town and alternate weekend time to occur between the children and the father from 3.00pm Friday to 3.00pm Monday.  Sadly, it seems that the tensions between the parties did not reduce.  I refer in the material to some, what could only be described as, inappropriate and abusive emails by the mother towards the father, the most telling being the one sent on 27 March 2020.  If that were the mother’s true position and what she felt of the father of her children – and that was found to be the case – that is a real concern in this matter.  Nonetheless, the mother says she regrets some of her communications and the style of communication, and that is a matter for another day.

11. Having been listed for an interim hearing and having heard written and oral submissions, Senior Registrar Spink, for Reasons delivered on or about 7 May 2020, made orders that the parties have equal shared parental responsibilities; that the children live with the mother and that, essentially, the children spend time with the father each alternate week from Friday at 9.00am to Monday at 5.00pm.  This is, effectively, in real terms, four days a fortnight.  The Senior Registrar made other orders relating to changeover, including at order 6 that changeovers occur at H Town airport, clearly reflective of an intention that the father would, for each alternate weekend, travel by plane from D Town and return to D Town.

12. As he was perfectly entitled to do, the father filed an application for review on 18 May 2020, and it is that application that is before me today.  Consistent with directions of the Registrar, further updated material has been filed.

Competing proposals

1. Consistent with the authorities, such as Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637, the Court should identify the competing proposals. The father’s primary proposal is that the children return to live with him in D Town, and if the mother does not return, then the father says that the children should spend time with the mother from 9.00am Friday to 5.00pm Monday as well as other special days and longer periods as set out in his amended case outline filed 29 May 2020. If the mother was to return to live in D Town, then the father would agree to the children remaining in her primary and for him to have extensive time similar to that which occurred before the mother left D Town.

2. The mother’s proposal is that the children live with her in Suburb J.  The mother, through her solicitor today, has indicated to the Court that if the children are required to return to D Town, then she would not return to D Town - she would remain in Suburb J.  It may be that the position of the mother is a little uncertain and may have taken the father by surprise.  The mother’s proposal is that if the children live with her in Suburb J that the father’s weekend time be from 11.00am Friday to 10.00am Monday.  The mother also has proposals in relation to changeover, including if the father is flying.

3. It seems, therefore, that the two primary competing proposals are that the children live with the father in D Town and spend time with mother, who will remain living in Suburb J, or that the children live with the mother in Suburb J and spend time with the father, who will remain living in D Town.  I did not enquire of Mr Wilson, who appeared for the father today, about the father’s capacity to move to Brisbane.  It seemed absolutely apparent from his material that he is gainfully employed, as he has been for some time in the family business in D Town and he is in some way keeping an oversight over the renovations of the former matrimonial home.  He has no desire to move to Brisbane to live.

Principles

1. Having so identified these primary competing proposals, in many respects, this case is now more of a competing residence application than what might be commonly called a “relocation application”, which, in any event, is only a form of competing residence application when it is all said and done.  In my view, the best interests of the children are not met by the parents living nearly 500 kilometres apart.  Children the age of the children in this case require more frequent interactions and time with their parents, especially where their parents can, as these parents can, offer to the children a level of care that in all the circumstances is appropriate, loving and child-focused.  Thankfully, at this stage, save for some allegations about the behaviour of parents in emails, there are no significant risk issues which arise for consideration under section 60CC(2)(b).

2. Furthermore, it is clear that the children will benefit from having the opportunity of forming and maintaining a meaningful relationship with both of the parents.  Again, I make the point that living 500 kilometres apart does not really provide the Court with optimal arrangements.  During the course of submissions orally today with the respective representatives of the parties, I offered an alternative, particularly in relation to alternate weekend time.  I make the observation that irrespective of where the parents might meet between D Town and Suburb J, the children will be engaged in the total journey.

Agreed facts

1. I take into account the following what seemed to be undisputed facts:

   a)The father has resided in D Town for a significant period of time.  He is gainfully employed in that region, although travel, including by plane, is required from time to time.  The father says he can work from home and manage his work arrangements to care for the children.  The father says that his usual hours are around 50 hours a week, although my impression is, and the mother says, that he often works longer than that;

   b)The mother, since moving to the Brisbane suburb of Suburb J, has within the last two months gained employment in Suburb K, which is near L Town.  Since living in Suburb J from the end of 2019, she has availed herself at times of childcare for the children three days a week currently Tuesday, Wednesday and Thursday.  It seems to me, therefore, that the mother uses the Monday and Friday of each week as the time she gets to spend with her children, which is important.  However, when she is only working two or three days a week, it may be possible for her to so alter her hours to accommodate the arrangements I propose to make on an interim basis; and

   c)Both parents offer suitable opportunity for care to the children, although both, if they are the full-time carer with another parent some 500 kilometres away, would want to available themselves of day-care, and in the mother’s case some assistance from family and friends.  Although there is no evidence from these people as to their availability.  I note in this regard that the maternal grandmother lives in the F Region, some one hour travel from the mother’s Suburb J home.

Discussion

1. At this age, time with the parent should be, in my view, optimised if possible.  Children quickly get into institutional care through day-care, kindergarten and then school where they – as they grow older – must, of course, by requirements of law as well as common sense, spend their mid-week time or their non-weekend time.  Therefore, it is common to try and maximise the opportunity for children to spend time with their parents before they start more rigorous pre-schooling or school, and it is these opportunities which often create the bonds that can last a lifetime.

2. When I explored with Mr Wilson on behalf of the father what the mother’s arrangements would be if she returned to D Town against her wishes (and in circumstances where I would not be prepared to make a coercive order), it became apparent that the father indicated that she would be likely to return to the uncle’s farmhouse but that no offer as to maintaining her beyond child support or otherwise assisting her to live in that region where she has no other close family support was part of his proposition.  Although the mother, with some now six months of living in Brisbane has set up some support and employment, she is able to do so, it seems, without there being any current need for her to seek spouse maintenance from the father.  Whether that changes in time, I do not know, but currently, there is no application or orders for spouse maintenance.  The mother has settled in Suburb J.  She has been the primary carer of these children.

3. By dint of the history, which is –

   a)she gave birth to them;

   b)the father has always been in full-time employment;

   c)up until separation, there were periods when the father was away for significant periods of time certainly between October and November 2019; and

   d)since the unilateral move, if that is what it is, to Brisbane, or certainly away from D Town, the mother has been the primary carer,

   in my view, for children of this age, and in particular, Y, who is still requiring a settled environment because of his sleeping patterns and general needs of a young child, I would be loathed to interrupt the primary care arrangements of the mother on an interim basis.

4. However, I believe the opportunity exists because of the situation of each parent to maximise the opportunity for the children to spend time with their father, which, although the practical difficulties of travel cannot be totally ignored, could, I think, allow the children to spend each alternate weekend from 10.00am Thursday to 5.00pm Monday with the father.  I would be prepared to hear further submissions about changeover locations on that arrangement.

5. If this order is put in place and the father is substantially present during those periods, as the order will provide, then this provides the children with a wonderful opportunity to spend time with the father.  Ultimately, if the father continues to press for the children to live primarily with him, then that foundation for at least a relationship to support such an arrangement has been created, but it is not the reason I am doing it.  I am doing it because the mother, it seems to me, notwithstanding it is only six months since she left D Town, has settled in Brisbane, wishes to remain there, has friends and support emotionally, has employment and economically can survive where there would be, in my view, some difficulties on the current evidence for her doing so in D Town.

6. So for those Reasons, the order of the Court will be, essentially, that the children spend each alternate weekend from Thursday morning to Monday afternoon with the father.  The reason I say Thursday to Monday is I take account of the fact that if the mother wished to spend some time with her mother on the Wednesday night so as to allow a Thursday drop-off to the father, then that could break the visit, allow the children some time to spend with the maternal grandmother and still allow the mother some time to return to Brisbane for work.  Alternatively, the same could occur on the Monday evening after return of the children to the mother.

7. The Court will order equal shared parental responsibility as the parties seek.

8. With such an order for equal shared parental responsibility, the Court would be required to consider whether an equal time regime or a substantial and significant time regime is in the best interests of the children and reasonably practicable.  In my view, equal time regime is not reasonably practicable.  In my view, the regime which I have set out, which would also include special days and some period of time over holidays – even though the children are not currently at school (it may be based around the father’s availability for holidays), is reasonably practicable and in the best interests of the children.

9. Now that I have set the parameters of the time, I will give the parties an opportunity to discuss how they might effect changeovers effectively in the best interests of the children.  I make the observation again that the premise is not what is convenient to these parents or what is less convenient to these parents.  Whether the children fly or go by car, it is a significant distance and time impost upon the children relating to travel from Suburb J to D Town and D Town to Suburb J.

10. I do not have currently before me clear evidence of how the sleeping patterns of Y might change, but as he gets older, of course, they will change.  I would expect the parties, who are focused on their children, now having set the parameters, to consider where changeovers can occur which is in the best interests of the children bearing in mind the travel they must incur.

11. I propose to adjourn this matter until Thursday, 4 June 2020 at 9.30am to hear any further submissions as to the form of orders so as to give the parties an opportunity to try and reach some agreement as to the form of orders, and if not, I will consider submissions at 9.30am on Thursday and pronounce such orders consistent with these Reasons as might be appropriate.

12. I will today, however, so as not to delay the matter further, require the preparation of a s 62G family report, at the cost of the Court. Whether the matter is heard by this Court or the Federal Circuit Court of Australia, in the end, will be a matter that will need to be considered by someone else.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 June 2020.

Associate: 

Date:  17 July 2020