Evans & Evans

[2020] FamCA 1106

FAMILY COURT OF AUSTRALIA

Evans & Evans [2020] FamCA 1106

File number(s):	NCC1548 of 2020
Judgment of:	CLEARY J
Date of judgment:	19 November 2020
Catchwords:	FAMILY LAW – CHILDREN – Where the mother unilaterally moved with the children interstate – Where parenting decisions are made unilaterally – Where allegations of sexual, verbal, physical and emotional abuse of the children and mother are made – Where the allegations of harm have not been substantiated – Where the mother  changed her position from being some time for the children with the father to no time – Where the father has not seen the children for eight months – Where negotiations resulted in orders of significance being made by consent, namely that the parents have equal shared parental responsibility for the children, that the mother re-establish a residence for the children in the B Town area and that the father spend unsupervised time with the children – Where the date of return to New South Wales and the time that should follow between the children and the father could not be agreed – Ordered the date of return to be two weeks from the date of these orders – Ordered substantial and significant time between the children and the father
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC, 68B
Number of paragraphs:	32
Date of hearing:	13 November 2020
Place:	Newcastle
Counsel for the Applicant:	Not Applicable
Solicitor for the Applicant:	Hannaway Lawyers
Counsel for the Respondent:	Ms Mifsud
Solicitor for the Respondent:	Women’s Legal Service
Solicitor for the Independent Children's Lawyer:	Sharon Moore Solicitor

ORDERS

NCC1548 of 2020

BETWEEN:

MR EVANS
Applicant

AND:

MS EVANS
Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS THAT:

Further to the orders made by this Court on 2 October 2020 [Orders 3 and 4] and to the orders made by consent on 13 November 2020 with regard to X born … 2013 and Y born on … 2016 (“the children”), the following orders are made pending further order:

Residence in B Town

1.The mother shall re-establish a residence for the children in the B Town area on or before 3 December 2020.

2.The mother shall advise the father in writing (which may include electronic writing) on or before 3 December 2020 of the address of the residence so established.

3.Subject to compliance by the mother with Orders 1 and 2 herein the children shall live with the mother.

4.In the event of non-compliance with Orders 1 and 2 by the mother, then the children shall live with the father until such time as the mother has complied, after which the children shall live with the mother.

Time and Communication

Time

5.The children shall spend time and communicate with the father, as follows:

5.1From 9.00 am to 4.00pm on Saturday 5 December 2020 ;

5.2On Wednesday 9 and 16 December 2020 from 3.30 pm until 9.00 am the following day;

5.3From 9.00 am Saturday 19 December 2020 to 6.00 pm Sunday 20 December 2020;

5.4From 2.00 pm on Friday 25 December 2020 until 2.00 pm 26 December 2020;

5.5Commencing in 2021:

5.5.1From 9.00 am 1 January 2021 to 9.00 am 4 January 2021;

5.5.2From 9.00 am 15 January 2021 to 9.00 am 18 January 2021;

During school terms:

5.5.3From after preschool/school 29 January 2021 to before preschool/school 1 February 2021 and each alternate weekend thereafter recommencing on the first weekend of each school term;

5.5.4On each Wednesday from 3.30 pm to before school the following day commencing Wednesday 10 February 2021 and recommencing on the second Wednesday of each school term;

School holidays:

5.5.5During the first week of each school term holiday (commencing at the end of Term One in 2021) from after school on the last school attendance day until 5.00 pm on the middle Saturday;

In Christmas school holiday periods:

5.5.6Commencing in December 2021 and in odd numbered years thereafter, for the second half of the holiday period from midday on the middle day if there is an odd number of days in the Christmas school holidays, and from 5.00 pm of the first of the two middle days if there is an even number of Christmas school holidays until 5.00 pm on the second last day before school recommences;

5.5.7Commencing in December 2022 and in even numbered years thereafter for the first half of Christmas school holidays from after preschool/school on the last attendance day until midday on the middle day if there is an odd number of days in the Christmas school holidays, and at 5.00 pm of the first of the two middle days if there is an even number of Christmas school holidays;

Special times

5.5.8If the children are with the mother on the morning of Christmas Day pursuant to these orders, then the children shall spend time with the father from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day;

5.5.9If the children are with the father on the morning of Christmas Day pursuant to these orders, then the children shall spend time with the mother from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day;

5.5.10If the children are with the mother pursuant to these orders, then on the children’s and the father’s birthdays, the children shall spend time with the father from after school until 6.00 pm if on a school day, and from midday until 6.00 pm if on a non-school day;

5.5.11If the children are with the father pursuant to these orders, then on the children’s and the mother’s birthdays, the children shall spend time with the mother from after school until 6.00 pm if on a school day, and from midday until 6.00 pm if on a non-school day;

5.5.12The children shall be with the father from 9.00 am on Father’s Day until before school on the following Monday, and with the mother from 9.00 am on Mother’s Day until before school on the following morning.

6.Changeover to be at preschool/school or otherwise at McDonald’s B Town located on C Street, B Town and at such other places as agreed between the parties.

Communication

7.The children shall communicate with the other parent by telephone or electronic communication or skype at any time between 6.00 and 6.30 pm each Tuesday and Thursday during school holiday periods, with the parent with whom the children are not living or spending time to initiate the telephone call, and the other parent to ensure that the children are available to speak with the calling parent in privacy.

8.The mother shall do whatever is necessary to ensure that the children are made available to spend time and to communicate with the father in accordance with these orders, including but not limited to, delivering the children to the father at changeover.

9.The father shall do whatever is necessary to ensure that the children communicate with the mother in accordance with these orders.

Restraints

10.The parties are restrained from criticising or making derogatory statements about one another in the presence or hearing of the children or permitting the children to remain in the presence of any third party who is doing so.

11.The parents are each restrained from changing the residence of the children to any place outside of the B Town area without the prior written consent of the other parent.

12.Both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.

13.Each party is at liberty to attend the said children’s school for the purpose of any function or activity normally attended by the parents.

14.The mother is restrained from permitting the children to spend time or communicate with Ms D for any reason.

15.Both, or either one of the parents shall re-enrol X at F School and are thereafter restrained without the prior written consent of the other parent from changing the enrolment.

16.The parents shall communicate via email or text message or App about parenting or property issues but shall only communicate face to face about those issues if there is prior agreement in writing to do so.

17.The parties or either of them may provide to the Local Court determining the AVO on 18 December 2020 a copy of these orders and affidavits in these proceedings if required by the presiding magistrate.

18.Order 4 of the orders made on 2 October 2020 is varied to read:

[4.]      Each parent is restrained from discussing the Family Court proceedings with the children, showing the children any documents relating to the proceedings in this Court, in the Local Court or in relation to welfare authorities and in the event that any welfare complaint is made by a child about the other parent, the parent receiving the complaint is to notify the relevant State authorities without herself/himself questioning the child.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

CLEARY J:

1. These are competing applications for parenting orders by the parents of two children, X, age seven, and Y, age four.

2. The parties separated on 4 February 2020 after a relationship of 11 years.  They are not yet eligible for divorce. 

3. The children have lived with the mother since the separation of the parties.  That arrangement was as a result of the circumstances of separation and not by agreement between the parties.  The circumstances include there being an Apprehended Violence Order (“AVO”) in place for 12 months for the protection of the mother from the father obtained in April 2019, although the parties continued to live together until February of 2020.  The obtaining of that AVO and its subsequent extension will likely be an issue if the matter proceeds to final trial.

4. Each party submits that he or she was the primary carer of the children. 

5. In May 2020, without notice to the father, the mother moved with the children away from Town to G City in Victoria.  The mother had allegedly in the previous months enrolled X in a Victorian school.  If that proves to be the case, it was not a spontaneous decision by the mother to move away. 

6. On 15 May 2020, the father filed an application for parenting orders in the Federal Circuit Court (“FCC”).

7. On 28 June 2020, the mother’s Response and Notice of Risk was filed.  It referred to sexual, verbal, physical and emotional abuse of the children and of herself by the father.  X had by that time been interviewed by the child abuse agency.  No allegations were made by the child and the matter was not substantiated for harm.

8. On 28 June 2020, the mother filed her Response.  Her proposed orders were premised on the children continuing to live with her in G City, Victoria.  Her proposal was either if the children were found to be at risk of harm in the care of the father, then four visits per year supervised in a contact centre. 

9. If the father was found not to represent a risk of harm, then some school holiday time.  Her affidavit of 27 June 2020 referred to incidents which had concerned the mother, including her assertion that she had seen the father sexually abuse the children and to have had inappropriate sexual contact with them.  That aspect of it, the mother asserting that she had seen sexual abuse of the children by the father taking place, will also, no doubt, be a matter for exploration in final trial.[1]

   [1] Affidavit of the mother, filed 28/06/2020, par 73.

10. On 30 June 2020, the proceedings came before the FCC and were transferred to this Court immediately for consideration for allocation into the Magellan Protocol, and the appointment of an Independent Children’s Lawyer (“ICL”). 

11. Thereafter, X was apparently interviewed by Victorian Police, probably in September 2020.

12. On 24 September 2020, the mother filed an Amended Response proposing both interim and final orders that she have sole parental responsibility for the children, that they have no time with the father, and that there be an order pursuant to section 68B of the Family Law Act 1975 (Cth) for a protection of the children and herself from the father, together with some property orders.

13. The perspective of the mother, or at least her instructions to lawyers, had, therefore, changed from there being some time for the children with the father to no time at all.

14. On 2 October 2020, the interim applications came before me in a Magellan duty list.  It was apparent that there was material sought by subpoena which was not available to put before the Court.  Further, the matter was complex and the affidavits were voluminous.  An order was made for the matter to be heard by me on 13 November 2020 as an interim hearing.

15. Orders were made on that day, pending further order, restraining the parties as follows:

    [3]Each party is restrained from taking any decision about the long-term issues of parenthood without the prior written consent of the other parent, other than in a medical emergency where the children or either of them have to be taken to hospital.

    [4]Each parent is restrained from discussing Family Court proceedings with the children, showing the children any documents relating to the proceedings in this court, in the local court or in relation to welfare authorities, and in the event that any complaint is made by a child about the other parent, the mother is to notify the Victorian authorities without herself questioning the child. 

16. The orders made today are further to those orders made in October 2020 with some variation to Order 4 referring to both parents and to state authorities, not only Victorian authorities. 

17. On 13 November 2020, the matter proceeded.  Both parties were present and legally represented, the mother by counsel.  There was an ICL. 

18. Negotiations were underway between all parties and continued on the morning of that day.  Orders of significance were able to be made by consent, namely:

    [1]The parents shall have equal shared parental responsibility for the children, X born in 2013 and Y born in 2016 (the children”).

    [2]The mother shall re-establish a residence for the children in the B Town area with the timing to be defined.

    [3]The father shall spend time with the children unsupervised at times to be defined. 

19. The orders which follow represent some orders generally agreed to as to the conduct of the parties, but where the date of return to New South Wales and the time that should follow between the children and the father could not be agreed.

20. There were further negotiations on the timing of return and the parenting arrangements.

21. The matter proceeded then by way of submissions on areas of difference.  Each party submitted a proposed Minute, and those documents were marked as follows: exhibit 1, the Minute for the mother, and exhibit 2, a Minute of Order sought by the father.  The Minute of the mother was, to some extent, drawn from the position of the father in his proposed Minute of Order which had been annexed to his Case Outline document of 12 November 2020.  That Minute of Order came with sets of alternative orders, and it was the final set of alternate orders that the mother referred to in agreeing to some orders proposed.  That Minute of Order will become exhibit 3. 

22. The ICL generally supported the position of the father, that is, that the mother return with the children to live in the B Town area, and that there should be forthwith substantial and significant time between the children and the mother.

23. The father had proposed that the children live with him and that he perhaps would collect the children from Victoria.  Those orders have not been made.  The orders consist of 18 paragraphs and can be summarised in this way:

    ·That further to the earlier orders referred to, the mother is to re-establish a residence for the children in the B Town area on or before 3 December 2020.

    ·The mother is to advise the father in writing, which can include electronic writing, on or before that date, of the address of the residence established.

    ·Subject to compliance by the mother with those two orders, the children will live with the mother.  

    ·In the event of non-compliance with Orders 1 and 2 by the mother,  then the children shall live with the father until such time as the mother has complied, after which the children shall live with the mother.

    ·Time and communication starts in a gradual way commencing with a whole day on Saturday 5 December 2020, and progressing in a way that is set out in the orders.

    ·There is provision for weekend time, school term holidays, Christmas holidays and special occasions.

    ·There are orders for communication, with the children to communicate with the other parent during school holidays, on Tuesdays and Thursdays between 6.00-6.30 pm.

    ·There are restraints on the parties’ conduct in terms of criticising or making derogatory statements in front of the children and from changing the residence of the children to outside the B Town area without the prior written consent of the other parent.

    ·Provision for the parties to have access to information about the children’s progress at school.

    ·A restraint on the mother from permitting the children to spend time or communicate with Ms D.

    ·Provision for both or either of the parents to reenrol X at F School and a restraint on changing that without the written consent of the other parent in the context of equal shared parental responsibility.

    ·The parents to communicate via email or text message or app, but face to face if there is prior agreement in writing to do so.

    ·The parties or either of them may provide to the Local Court on 18 December 2020 a copy of these orders and affidavits in the proceedings if required by the presiding magistrate.

    ·Order 4 of the orders made earlier on 2 October expressly sets out where there is a change to the order referring to both parents or either of them receiving a complaint of a welfare character from a child, not questioning that child and referring the matter to the State welfare authorities.  

24. The orders were made in that way for the following reasons.

25. Order 1 - the mother proposed that she return with the children to live in The B Town area by commencement of the school term 1 in 2021, around January 27.  The father proposed that the children be delivered to him on 23 November 2020 at H City Police Station, and, thereafter, live with him until the mother relocated to The B Town at the end of January 2021, or whenever she did.  The ICL was generally supportive of the father’s proposal, although with a little more latitude in the timing of return.

26. I have concluded that the mother having conceded properly, in my view, that the children should return to live in The B Town, there is no benefit to the children in delaying that return for a further two and a half months.  There is, in fact, detriment to the children.  They have not seen the father since March 2020.  Eight months is a long time for children aged seven and four, particularly where they have moved away from everything that was familiar to them, including their school, their friends and their other activities. 

1. New South Wales has predicted opening its border with Victoria on 23 November 2020.  It may be a very busy day to be travelling.  The children should travel with the mother, not be handed to the father at a police station or at a McDonald’s restaurant or anywhere else with this change back to living in New South Wales.  They have already had the relationship with their father disrupted.  It should not be restored in the context of a disruption in the relationship with the mother.  The children need time with both parents consistently.  Accordingly, a period of two weeks from the date of these orders being delivered today has been allowed.

2. The mother has known at least since 13 November 2020 when she agreed that the children should return, but probably before that date, that she would be returning with the children to The B Town.  Provision has been made for the children to live with the mother, provided she is compliant with the orders.  On behalf of the mother, it was submitted that the children should be able to finish the school year in G City and enjoy those end of year activities.  A greater benefit for X will be a return to enrolment at her old school, to reconnect with her teacher and friends, and to participate in end of year activities there. 

3. The mother submitted that X should not return to that school.  Order 3 of the October 2020 orders is directed at unilateral decision-making.  The parties have agreed to share equally in parental responsibility, which requires them to consult with each other, inform themselves that as best they can, and come to a position on any such decision.  They will be able to consider any change over the Christmas school holiday period based on whatever the reasons are that the mother wishes to enrol X elsewhere.  The father himself may have the view that the child should be enrolled at a different school.  There is insufficient information about why a change would be made.

4. Finally, the children will be able to spend time with their father this Christmas, as well as with their mother, and during the school holidays in short periods.  The parents are to communicate in the way prescribed by the order.  The father’s preference was to also be able to speak face to face, but the mother was not ready to do that.  Hence the order has been made that there must be agreement in writing before such discussions take place.  It should certainly never be the case that discussions about changes to arrangements with the children should take place at changeovers or in the presence of the children. 

5. It is likely that the next step, if the matter progresses in the Courts, would be the ordering of a Family Report, but I do not propose to make that order yet.  Rather, to give some time for the orders to work and for the parties to reflect on the compass of their disagreement after the return of the children to New South Wales is complete.

6. Orders are made accordingly.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate:

Dated:       19 November 2020