Fenton and Fenton
[2010] FMCAfam 684
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FENTON & FENTON | [2010] FMCAfam 684 |
| FAMILY LAW – Children – interim orders – best interests of the children – two daughters – children aged 17 years and 11 years – with whom children should live – accommodation arrangements – alcohol abuse allegations – equal shared parental responsibility – whether equal time with each parent would be in the children’s best interests. |
| Family Law Act 1975(Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Marvel & Marvel (No.2) [2010] FamCAFC 101 |
| Applicant: | MS FENTON |
| First Respondent: | MR FENTON |
| File Number: | SYC 6942 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 June 2010 |
| Date of Last Submission: | 28 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watts |
| Solicitors for the Applicant: | M.J. Woods & Co |
| Solicitors for the Respondent: | Matthews Folbigg Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms Leis |
| Solicitor for the Independent Children’s Lawyer: | Kathryn Renshall |
ORDERS
The Orders made by consent on 8 February 2010 are vacated.
The child [X] born [in] 1993 is to live with the respondent father and is to spend such time with the applicant mother as the child wishes.
The child [Y] born [in] 1999 is to live with the respondent father.
The said child [Y] is to spend time with the mother as follows:
(a)Each alternate Saturday between the hours of 9:00 am and 5:00 pm;
(b)From 9:00 am to 1:00 pm on Christmas Day in 2010;
(c)For one half of each school holiday period at such times as the mother and father shall agree or in default of agreement, for the second half of the school holiday period, commencing at 9:00 am on the middle Saturday and concluding at 5:00 pm on the last Sunday of the school holiday period;
(d)From 5:00 pm to 8:00 pm on the mother’s birthday; and
(e)From 9:00 am to 5:00 pm on Mothers’ Day in each year.
The children [X] and [Y] are to have liberal telephone communication with the mother and the father is to do all things necessary to facilitate the children’s ability to speak to the mother on the telephone at all reasonable times.
For the purposes of giving effect to Order (4) above the mother is to collect the child [Y] from the McDonald’s Family Restaurant at [omitted] in the State of New South Wales at the commencement of the time that the child spends with her and the father is to collect the child from the residence of the maternal grandmother’s residence at the conclusion of the time the child spends with the mother or from such other place as the mother and father shall agree.
The mother is restrained from consuming alcohol at any time when either of the children [X] or [Y] is spending time with her or for a period of twelve (12) hours beforehand.
The mother is not to allow either of the said children to be or remain in the presence of any person who is intoxicated at any time when either of the children is in her company.
Both parties are restrained from speaking to either of the said children about these proceedings or from asking either child with whom she wishes to live.
IT IS NOTED that publication of this judgment under the pseudonym Fenton & Fenton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6942 of 2009
| MS FENTON |
Applicant
And
| MR FENTON |
First Respondent
REASONS FOR JUDGMENT
Application
This is an interim application about the two daughters of the parties, [X], who is nearly seventeen years old, and [Y], who is aged eleven years. At present, [X] lives for some of the time in her grandmother’s residence, with her mother, and some of the time in her boyfriend’s residence. [Y] lives with the father.
There has been some agreement between the parties about where the children should live, including some interim consent orders made on 8th February 2010 and, more recently, some arrangements between the parties at a Child Dispute Conference on 25th June 2010. However, the Independent Children’s Lawyer has concerns about the proper arrangements for the children.
Issues
The issue is whether the two children should live with the father or continue with the present arrangement, which is that [Y] lives with the father and [X] lives with her mother at her grandmother’s residence.
Background
The father’s solicitor, Ms Aloisio, has prepared a detailed Case Outline for the purpose of the interim hearing, which contains a useful chronology. Those parts of the chronology which appear to be controversial have been excluded.
The wife, who is the applicant in these proceedings, was born [in] 1966. The husband was born [in] 1961. The parties were married [in] 1985.
There are four children of the marriage, two of whom are adults:
a)[A], born [in] 1988; and
b)[B], born [in] 1989.
The two younger children are the subject of this application. [X] was born [in] 1993 and [Y] was born [in] 1999.[1]
[1] Some documents filed have given [Y]’s date of birth as [omitted] 1999.
It is not in dispute that the mother has had a problem involving drinking alcohol to excess, which led initially to the parties’ attending counselling.
In March 2008 the mother was charged with driving with the high range prescribed concentration of alcohol in her bloodstream and in October of that year she was disqualified from holding or obtaining a driver’s licence in New South Wales for a period of three years.
On 26th October 2008 the mother was charged with an assault on the parties’ son [A] whilst intoxicated. She was refused bail.
The parties separated on 29th October 2008.
On 17th December 2008 the mother commenced a period of full-time rehabilitation at [omitted] in New South Wales. She remained there until September 2009.
In the meantime, the father moved out of the former matrimonial home at Property T and moved to his current residence in [K] with the younger child [Y].
The mother resided at Property L with her mother.
On 16th November 2009 the mother filed an application seeking interim and final parenting orders.[2] The interim orders sought, in summary, are that:
a)[X] is to live with the mother; and
b)[Y] is to live with the father and spend weekends and periods of time during the school holidays with the mother.[3]
[2] The Orders sought are somewhat confusing, as they are contained in two annexures headed “Final Orders sought by Application (sic) Father” and “Interim Orders sought by Application Father”. Even more confusingly, the final orders sought refer only to a child named [S], who is not mentioned in any of the mother’s affidavits.
[3] There is also an ancillary order referring to the mysterious [S] which is not relevant to this decision.
On 14th January 2010 the father filed a response seeking property orders and final and interim parenting orders. The interim orders sought by the father can be summarised briefly as:
a)[Y] is to live with the father;
b)[Y] is to spend alternate weekends and half the school holidays with the mother, plus Christmas Day, Mothers’ Day etc; and
c)The mother is to be restrained from consuming alcohol while the children are in her care and for 12 hours beforehand.
On 8th February 2010 the parties entered into consent orders providing that:
a)[Y] would live with the father;
b)[Y] would spend alternate weekends, half the school holidays and times on Christmas Eve, Christmas Day, Boxing Day and Mothers’ Day with the mother; and
c)The mother was restrained from consuming alcohol 12 hours before and during the time when [Y] was in her care.
On 22nd February 2010 the mother filed an amended application. In that document she sought property orders in addition to parenting orders. The parenting orders sought were to the effect that both of the children would live with her and spend alternate weekends with the father, along with half the school holidays.
The parties agreed to interim property orders on 1st March 2010 relating to the sale of the former matrimonial home at Property T.
On 8th March 2010 the parties attended a child dispute conference. That same day I ordered that the children should be independently represented.
The parties attended a further child dispute conference on 25th June 2010, this time a child-inclusive conference. At that conference they decided that [X] would decide for herself where she would live and how much time she would spend with each parent. They also decided that [Y] would spend from Friday after school until Sunday at 6:00 pm with the parent with whom she does not live, and would spend half of the end of term school holidays with each parent, and at Christmas she would spend the first half of the holidays with the father and the second half with the mother.
The Family Consultant also noted that:
·[X] presented as a mature 16 year old making suitable choices in her life.
·The father intended to remain living in [K].
·The mother was planning to move to [C] with her new partner.
·The mother acknowledged that she is an alcoholic.
·The child [Y] liked her new school and got on well with the father’s new partner.
·[Y] loves sport and likes playing soccer every weekend.
·[Y] said she enjoyed spending time at her grandmother’s place and got on well with her mother’s new partner.
·The Family Consultant also noted:
There does not appear to be any information to suggest that it would be in [Y]’s best interests for her to change residence at this stage.[4]
[4] Family Consultant Memorandum to Court 25 June 2010 page 3
The Independent Children’s Lawyer’s Proposal
Notwithstanding the agreement of the parties referred to in the Family Consultant memorandum, the Independent Children’s Lawyer proposed that the Court should make interim orders to this effect:
a)That both children should live with the father;
b)That [X] spend liberal and frequent time with the mother as the child wishes;
c)That [Y] spend alternate Saturdays or Sundays with the mother depending on her sporting activities, from 9:00 am to 5:00 pm, but not overnight, and other times as the parties agree;
d)That both children have liberal telephone communication with the mother;
e)That the mother be restrained from consuming alcohol during and for 12 hours before the time when either child is with her;
f)The children should spend Mothers’ Day with the mother;
g)Arrangements for handover between the parents; and
h)An order restraining the parents from discussing these proceedings with the children or asking them where they want to live.
The Mother’s Proposal
Counsel for the mother, Mr Watts, told the Court that his client was of the view that there had been an agreement between the parties at the child dispute conference and was prepared to consent to orders in terms of that agreement.
The Father’s Proposal
It was originally the father’s position that he would consent to orders along the lines of the matters agreed to at the child dispute conference, but on hearing the proposal of the Independent Children’s Lawyer, his solicitor, Ms Aloisio, told the court that he supported the orders sought by the ICL.
Evidence
Each party had filed an affidavit on 25th June.
In her affidavit, affirmed on 25th June 2010, the mother acknowledged that she had experienced “problems with alcohol”[5] and was being treated by a psychologist and her local doctor.
[5] Affidavit of Ms Fenton 25.6.2010 at paragraph [2]
The mother deposed that she was “not drinking” and annexed a copy of a urine test for the presence of alcohol, to which she had voluntarily submitted on 11th June 2010.
The mother also deposed that:
a)The father had allowed [X] to reside with her mother whilst she was in rehabilitation in order that she could continue at her present school;[6]
[6] Ibid at [5]
b)The father lived 53 kilometres from [X]’s school, which would probably require the child to take two buses and two trains to get to school;[7]
[7] Affidavit of Ms Fenton 25.6.2010 at [6]
c)She acknowledged that there were too many people living in her mother’s house, where she lives, but explained it by saying that she had to accommodate the parties’ son [A], his partner and her son, after the father had had them evicted them from the former matrimonial home;[8]
d)The mother and her mother were also compelled to allow the parties’ other son [B] to live in the house as he could not afford to pay rent and the father would not assist him;[9]
e)The son [A] and his partner and her child recently moved to other accommodation;[10]
f)It was the father’s decision to remove [Y] from her old school and enrol her in a school near to his new residence;[11]
g)The mother has difficulty in taking [Y] to sporting events because she has no driver’s licence or a registered vehicle;[12]
h)She is moving to [C] in the near future to live with her new partner, one Mr S, who has developed a strong relationship with both girls and they have formed “a loving bond with him”;[13]
i)They will live in a two-bedroom unit;[14]
j)[X] does not wish to live with her father because she cannot get on with his new partner, Ms T;[15]
k)[X] will remain living with her grandmother at Property L during the week and live with the mother on weekends; and
l)She has agreed with the father that [Y] would stay with him for the first week of the school holidays and spend the second week of the holidays with her.[16]
[8] Ibid at [9] – [10]
[9] Ibid at [10.c]
[10] Ibid at [11]
[11] Ibid at [13]
[12] Ibid at [14]
[13] Ibid at [15]
[14] Ibid at [17]
[15] Ibid at [19]-[20]
[16] Ibid at [24]
In his affidavit sworn on 24th June 2010, the father deposed that:
a)[Y] lives with him and his partner Ms T and her daughter [T] in a three-bedroom home where [Y] has her own room;[17]
[17] Affidavit of Mr Fenton 24.6.2010 at paragraph [6]
b)When [Y] returns from staying with her mother she stats that she is happy to be home and that it is “hectic there”;[18]
[18] Ibid at [7]
c)[Y] is progressing well at school and plays soccer each Sunday, but is only able to play on alternate Sundays as the mother refuses to take her to soccer or Little Athletics;[19]
[19] Ibid at [8]-[9]
d)[Y] has a close relationship with his partner Ms T and her daughter [T];[20]
[20] Ibid at [12]
e)[X] attends school at [M] where she is in Year 11, but has told him that “she struggles to study” at her mother’s residence because of the noise and lack of space;[21]
f)[X] spends time with him as she wishes and she has “a close relationship with Ms T, [T] and [Y]”;[22]
g)There are still five adults living at the living at the mother’s home;[23]
h)[Y] has told the father that when she stays at the mother’s home she is required to sleep on the lounge, on a mattress on the floor or, occasionally, in a double bed with her mother;[24]
i)[X] stays at her boyfriend’s home for approximately two nights a week because there is insufficient room for her to study and have her own privacy at her mother’s home;[25]
j)[X] had asked the father about staying at his home due to difficulties in her mother’s home;[26]
k)The parties’ son [A] drinks alcohol to excess and becomes intoxicated on frequent occasions;[27]
l)The mother continues to drink alcohol;[28]
m)[Y] is unable to do her homework when staying at her mother’s home as there is nowhere for her to study;[29] and
n)[X] decided not to move out of her mother’s home as a result of speaking to her grandmother.[30]
[21] Ibid at [13]
[22] Ibid at [14]-[15]
[23] Ibid at [17]
[24] Ibid at [21]
[25] Affidavit of Mr Fenton 24.6.2010 at paragraph [22]
[26] Ibid at [26]-[29], [31], [42]
[27] Ibid at [32] – [33]
[28] Ibid at [34]-[38]
[29] Ibid at [40]
[30] Ibid at [49]-[50]
The Relevant Law
In deciding whether to make a 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 the child’s best interests by considering the matters set out in s.60CC of the Act. The primary considerations are set out in s.60CC(2):
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from abuse, neglect or family violence.
Additional considerations are set out in s.60CC(3) and include any views expressed by the child, subject to the child’s maturity and level of understanding, the nature of the child’s relationship with parents and other persons, including grandparents, the willingness and ability of each parent to encourage a close relationship with the other parent, the likely effect of changes in the child’s circumstances and the capacity of each parent and other person to provide for the child’s needs.
In any interim hearing, the Court must consider whether the presumption in s.61DA of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility does apply (Goode & Goode[31]). This must be considered even if it is not argued by the parties at the hearing (Marvel & Marvel (No. 2)[32].
[31] [2006] FamCA 1346; (2006) FLC 93-286
[32] [2010] FamCAFC 101
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the court must consider whether it is in the best interests of the child to spend equal time with the child (s.65DAA).
Considerations
The concerns for the children expressed by the Independent Children’s Lawyer are that:
i)[X] should live with the father because the mother’s household does not make adequate provision for her to study or to have the necessary privacy for a child who is about to turn 17 years of age; and
ii)[Y] should not only continue to live with her father but she should not stay overnight at her mother’s residence, again due to lack of space for study and the provision of privacy.
There is some evidence of [X]’s wishes through the father’s affidavit material, but Ms Leis of counsel has expressed the concern that neither [X] nor her sister have been willing to express a firm preference because they are not comfortable about appearing to choose between their parents.
There is evidence that [Y] enjoys playing sport, especially soccer, and that her mother is not in a position to take her on a Sunday, as she does not have a driver’s licence or access to a car.
The mother’s counsel has raised arguments about the fact that the father’s home is in [K] and [X]’s school is in [M], which is a considerable distance away, involving her in lengthy travel to and from school. It appears to me that the mother’s imminent move to [C] to live with her new partner does not assist the mother’s argument, as [C] and [M] are hardly neighbouring suburbs.
There is no evidence that it is in [Y]’s best interests to change her residence from her father’s home to her mother’s home.
To my mind, there are two issues that dominate the consideration of what is in the best interests of the children.
The first issue is the mother’s alcoholism. The mother has an admitted history of drinking to excess that has led to her being an inpatient at the [omitted] Centre for approximately ten months and has brought her under notice of the New South Wales Police. She is currently a disqualified driver as a result of a drink-driving conviction.
There are allegations that the mother has relapsed and has consumed alcohol since her release from [omitted centre], but the evidence is not such that I am satisfied that I can make a factual finding to that effect. The mother’s admitted alcoholism , for which she is undergoing treatment, would not be sufficient in the circumstances to warrant either changing [X]’s residence or refusing to allow [Y] to stay overnight at her mother’s home.
The question of accommodation is, to my mind, the factor that should dictate where the two girls should live. The father’s residence would allow [X] to have both space and privacy. She is currently in Year 11 and would have a significant scholastic workload. In a home with three bedrooms and a study, she should be able to have either a room of her own or, at least, a room she shares with her sister. A room of her own would be preferable.
The father would need to consider making appropriate arrangements for [X] to go to and from school in safety without spending an inordinate amount of time travelling. He may have to make specific arrangements to drive her to school. That is a matter for him.
The mother’s proposal would have [X] spending weekends in a flat at [C] with her and her new partner, of whom little is known, although the mother deposes that he has already formed a “loving bond” with both girls in what would appear to be a relatively short acquaintance. [X], on her mother’s proposal, would remain living with her grandmother during the week. There is no evidence that she has other than a good relationship with her grandmother, but it would seem to me to be preferable that [X] should live with one of her parents. If she lives in her father’s residence, she will live with her sister as well, which appears to me to be preferable.
I propose to order that [X] is to reside with her father until further order. As she is about to turn 17, I am satisfied that [X] can make her own arrangements about seeing her mother, but the father will need to ensure that she is able to speak to her mother by telephone whenever she wishes to do so.
[Y] will continue to live with her father until further order. The mother’s proposal to move to a two-bedroom home unit with her new partner may well prove to be a suitable arrangement, but I would be reluctant to order that the child spend time there overnight during the school term without further evidence about what arrangements can be made for her. [Y] is likely to have homework to do on weekends, and the accommodation at her father’s home, where she has her own room, seems to me to be more conducive to arrangements for her to study.
In addition, [Y]’s sporting commitments, both with soccer and Little Athletics, can be more easily met whilst living at her father’s home. It is uncontroversial that the mother has difficulty in getting [Y] to sport on the weekend as she is not permitted to drive a car. If [Y]’s soccer games are on Sundays, it is clearly in her best interests for her to be at her father’s place on Sundays.
I am not so persuaded that [Y] should not spend overnight time at her mother’s residence during school holidays. Presumably, she would not have schoolwork or sporting commitments during the school holidays. There is no evidence to suggest that it is not in the child’s best interests to have a close relationship with her mother.
The mother will have to make sure that she does not consume alcohol when either of her children is with her or for twelve hours beforehand. It would be detrimental to either child’s interests to spend time with her mother whilst she is intoxicated or hung-over.
The parents must not discuss these proceedings with the children, although commonsense dictates that certain administrative arrangements such as preparation of a Family Report and interviews with the Independent Children’s Lawyer must obviously be talked about. It should be made clear, however, that it is the Court that has made the decision as to where these children will live between now and when the final hearing is decided.
Turning to the question of equal shared parental responsibility, there is a presumption under s.61DA of the Act that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The evidence is contested and, because the court has not had the ability to have that evidence tested by cross-examination, I am not satisfied that I should make a factual finding that the presumption does not apply or that it is inappropriate for the presumption to apply. That is a matter that can be more properly considered on a final hearing.
However, I have considered whether it is in the best interests of the children to spend equal time with each parent and I have decided that it is not, for the reasons above.
I propose to order a Family Report under s.62G of the Act for the purpose of final hearing, which will take place early next year. The parties may wish to make submissions as to what particular matter should be considered, although it seems clear that the mother’s alcoholism, accommodation arrangements for the children, and the children’s relationship with their parents’ new partners would all be relevant.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1/7/2010
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