GAFFREY & GESTEL
[2020] FCCA 1137
•12 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAFFREY & GESTEL | [2020] FCCA 1137 |
| Catchwords: FAMILY LAW – Interim Parenting – Recovery order application – best interests of children – recovery order made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Goode & Goode (2006) FLC93-286 Marvel & Marvel [2010] FamCA 240 |
| Applicant: | MR GAFFREY |
| Respondent: | MS GESTEL |
| File Number: | PAC 1502 of 2020 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 6 May 2020 |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 12 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Dickson |
| Counsel for the Respondent: | Mr Kenny of Counsel |
| Solicitors for the Respondent: | Rowlandson & Co Solicitors |
ORDERS PENDING FURTHER ORDER
That a recovery order issue for the children X born in 2005, Y born in 2006, and Z born in 2008 (hereinafter referred to as the children), pursuant to section 67Q of the Family Law Act 1975.
That the Marshall of the Court, all officers of the Australian Federal Police and all state and territory police officers be authorised and directed, with such assistance as they require, to find and recover the children and deliver the children to the father, Mr Gaffrey, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.
The children shall live with the father.
The children shall spend time with the mother on alternative weekends from Friday 3:30 PM to Sunday 5 PM, and they shall also spend half the school holidays with her.
The Court appoints an Independent Children’s Lawyer (the ICL) to represent the children in these proceedings.
Leave is granted to the parties and the ICL to issue more than 5 subpoena for production of documents.
The proceedings are listed for mention on 6 July 2020 at 11.30am. The ICL is requested to attend this mention.
The Mother shall cause the children to be delivered to the Father on Sunday 17 May 2020 at 12pm in the foyer of the Town A Police Station.
Direct that the above recovery order lie in the Registry and not issue pending the Mother causing the children to be delivered to the Father pursuant to the above order. Should the Mother fail to cause the delivery of the children to the Father pursuant to the above order, then the recovery order shall immediately issue.
The Father’s costs in relation to the recovery order interim hearing are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Gaffrey & Gestel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1502 of 2020
| MR GAFFREY |
Applicant
And
| MS GESTEL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the determination of the father’s urgent application for a recovery order in relation to the children of the relationship being X born in 2005, Y born in 2006, and Y born in 2008.
The mother opposes the making of such recovery order.
The mother moved with the children to Town B, about 450 km from Town C, on about 20 March 2020. She previously resided in Town C.
The father resides in Town D, near Town C.
Prior to about 20 March 2020 the parties had been facilitating an equal time arrangement for the children, pursuant to the below Orders of 2015.
On about 6 July 2015, by consent, final parenting orders were made in the Family Court of Australia at Parramatta, providing inter alia, that the parties have equal shared parental responsibility for the children; the children live with each parent in a week about arrangement; the children spend school holiday periods equally between each parent; and that neither party be permitted to change the children’s place of residence to any location greater than 25 km from the town of Town C, NSW, without the other party’s written consent.
The mother does not propose to return to Sydney to live if the Court makes the recovery order sought.
There were some submissions made by the parties in relation to whether or not there had been a material change in circumstances since the above 2015 parenting orders. In relation to this issue (see the decision in Rice & Asplund [1979] FLC 90-725) since the above 2015 orders, on the material before the court, there is a significant suggestion that there has been a material change in circumstances, at least by reason of the previously ordered equal time arrangement and the mother’s evidence that she will not return to live in Sydney if the recovery order is made. However, and again, the Court is determining the father’s urgent recovery order application, opposed by the mother, and which course was clearly communicated to the parties’ legal representatives at the urgent recovery order hearing. Various interim parenting orders sought by the mother in her Response can be agitated by her in due course, and following the entry into the proceedings of the ICL, and when more fulsome evidence can be adduced by both parties.
Materials relied upon
The father relied upon:
a)his Case Outline
b)Final orders dated 6 July 2015
c)father’s affidavit filed 27 March 2020
d)Child Inclusive Conference Memorandum dated 23 April 2020
e)Tender bundle of documents (18 pages)
f)Affidavit of the father filed 6 May 2020
The mother relied upon:
a)her Case Outline
b)Response filed 17 April 2020
c)Notice of Risk filed 17 April 2020
d)Affidavits of mother filed 17 April 2020, 20 April 2020, 5 May 2020, 7 May 2020
e)Schedule identifying certain documents produced under subpoena to Town C High School and relevant documents produced under that subpoena (comprising 10 pages of schedule and 175 pages of documents)
f)Schedule identifying certain documents produced under subpoena to Town C Public School and relevant documents produced under that subpoena (comprising 4 pages of schedule and 24 pages of documents)
g)Schedule identifying certain documents produced under subpoena to the male children’s consultant paediatrician Dr E and relevant documents produced under that subpoena (comprising 5 pages of schedule and 20 pages of documents)
h)Streamline schedule “of documents that the respondent mother requires the court to read having regard to the documents produced under subpoena by Town C High School and consultant paediatrician Dr E”.
The court has considered all the material relied upon by the parties.
Agreed facts unless otherwise stated
The parties commenced cohabitation in about 2011. They separated in May 2013.
Following separation, the father asserts that the parties agreed to co-parent the children on a week about arrangement.
The father asserts that the final parenting orders made by consent on 6 July 2015 provided for the continuation of a week about arrangement between the parties.
The father asserts that the parties have followed the above final parenting orders until the week of 23 March 2020, at which time the children were to come back into the father’s care. He asserts in his first filed affidavit that he did not see the children since 16 March 2020.
The mother’s affidavit filed 20 April 2020, paragraph 12, states that the father “is spending the next week with the children in circumstances where myself and deliver the children to (the father’s) residence at Town D on Sunday, 19 April, 2020 and they will be returned to me the following Monday in circumstances where it is school holidays and the children do not need to return to school”; it is apparent that the children spent that week with the father and were returned to the mother.
The mother asserts that on 20 March 2020 the Town C property in which she was living was sold and herself, the children, and her new partner Mr F, have been living at Town B since that time.
The mother asserts that she entered into a de facto relationship with Mr F since the making of the final consent parenting orders and they commenced living together in the Town C property in about July 2016 and have been together since that time.
The father asserts that due to behavioural issues, both X and Y have seen a few different child psychologists prior to receiving treatment from the below referred paediatrician.
The father attaches to his affidavit some treatment reports of consultant neurodevelopmental paediatrician Dr E (the paediatrician), in relation to both X and Y. The Court acknowledges that these reports are untested.
The report of the paediatrician dated 28 August 2018, in relation to the child Y, refers to the paediatrician meeting Y “today together with both his parents.” The report refers, inter alia, to this child’s concerning ongoing aggressive behaviour particularly at school but also to some extent at the mother’s house. It is stated that the child at this time is in year 6. The paediatrician stated that Y can be quite oppositional. He states it is not clear whether he might have an ADHD component “particularly as the school notices some issues with concentration and distractibility and he seems to be somewhat impulsive.” The paediatrician suggested that Y be trialed on a low dose of risperidone “to try and mellow his oppositionality and aggressive outbursts and help with his impulse control.”
The next report of the paediatrician annexed to the father’s affidavit is dated 26 November 2018 in relation to the child Y. It states that Y’s meltdowns have improved significantly on the Risperidone. It is stated that after discussion it was agreed to change Y to a different medication as the majority of his meltdowns appear to be triggered by anxiety.
The next report of the paediatrician annexed to the father’s affidavit is dated 26 August 2019 in relation to the child X. The report refers to X being “back for review”. It states, inter alia, that the feedback from his school is that he meets and has difficulty with the majority of the inattentive and impulsive ADHD criteria. It refers to this child’s long history of impulsive and disruptive behaviour and he is also quite oppositional. The paediatrician states that there appears to be no doubt that X meets criteria for ADHD “and therefore both parents have agreed that X trial Ritalin to try and help contain his core ADHD symptoms with a flow on improvement to his oppositionality hopefully”. The paediatrician states that he will also be communicating separately with the school.
The next report of the paediatrician annexed to the father’s affidavit is dated 4 December 2019 in relation to the child X. The paediatrician states he is pleased to report that X has had a very positive response to Ritalin. It states that the school feedback is that X is much more focused and less impulsive and the number of negative incidents and comments is greatly reduced. It states that he is much less impulsive. It states that the school has been very supportive and have given him additional activities outside of the conventional academic ones. It states that his self-esteem and his friendship groups are improving and there is no residual oppositionality. It states that X clearly has some very positive strengths on things that he is interested in. The paediatrician refers to discussion of a range of issues to do with X’s ADHD in the future. It was agreed to leave him on Ritalin and an annual review is planned.
A further report of the paediatrician annexed to the father’s affidavit is dated 4 December 2019 (with handwriting “should be 24 February 2020”) in relation to the child X. The paediatrician states that X continues to do well at ADHD. He is concentrating well in the paediatrician has continued him on Ritalin. The paediatrician states that he is arranged to speak to the school to make sure X has been adequately supported.
A report of the paediatrician annexed to the father’s affidavit is dated 24 February 2020 in relation to the child Y. The paediatrician states that the feedback from school is at Y is concentrating poorly and that he is impulsive and anxious. It refers to him under achieving somewhat academically and is the class clown. It refers to Y being still on the medication fluoxetine which helps his anxiety “there are still a lot of pressures in the family.” The paediatrician states that it would be reasonable to try Y on Ritalin to get into focus better and be less impulsive. He states that quote hopefully this will have a flow on effect to his schoolwork and his behaviour generally, “and we will be getting off the fluoxetine over the next few months.” The paediatrician states that he has asked the parents to let him know how things go, and if there is a positive response to the Ritalin, the medication will be changed to long acting Concerta.
The mother’s tender bundle of documents, inter alia, annexes a report from a psychologist Dr G, in relation to the child X dated 29 July 2016. There is an earlier report from a paediatrician Ms H dated 23 May 2016 in relation to the child X.
The mother’s tender bundle of documents contains a confidential email from the father to the paediatrician of 3 September 2018, in which the father asserts, inter alia, that the mother has an aggressive approach to the child Y. He asserts that Y cannot handle this “which in my opinion is a cause of some of his anger issues, as he quite often experiences this at her house.”
The mother’s tender bundle of documents contains a referral from a GP to the paediatrician dated 13 August 2018 stating, inter alia, that the father has finally agreed to an assessment of the child Y due to an escalation of disruptive behaviour at school.
The mother’s tender bundle of documents contains an email from the father to the paediatrician dated 13 February 2019, inter alia, requesting another repeat prescription for the child Y’s medication. The email asserts that on 9 February 2019 there was an argument between the mother, her partner and the child Y.
The parties and children were interviewed by the family consultant on 23 April 2020.
The father asserted to the family consultant, inter alia, that there had been occasions when X and Y had told him that the mother’s new partner had been physical with them and throwing things at them and push them against a wall and that the mother had hit them. He asserted that the children had told him that the mother and her new partner had yelled at them excessively and discipline them over minor things. He asserted that the mother had tried to gain access to Z’s telephone and broke it when she refused to share her password.
The mother asserted to the family consultant that the father had told the children that he may not be able to afford to travel to see them if they live on the Region J, and that she thereby had concerns about the children’s emotional well-being with the father. She stated that she did not have any concerns with the children’s physical safety with the father and confirm that the children had good relationships with him.
The mother asserted the family consultant that she consumes two alcoholic drinks per day, and will consume 10 to 12 alcoholic drinks over the weekend. She said that she has been intoxicated in front of the children that she does not think that this was an issue for them.
The father asserted to the family consultant that over time, after the 2015 consent orders, the parties coparenting relationship deteriorated. The mother asserted the family consultant that shortly after separation the parties relationship was terrible and the father would film her or record her and turned the children against her.
The mother asserted the family consultant that she moved to the Region J because you wanted to live there she thought was close enough that the children could continue their relationship with the father. She added that X and Y may have benefited from a fresh start in attending a new school where they could build new social connections that were not affected by the history of behavioural difficulties and damaged peer relationships.
The mother confirmed to the family consultant that she does not have any social family connections on the Region J, and is not in employment there. When asked by the family consultant, the mother confirmed that the father did not expressly provide his consent for the children to relocate.
The father asserted the family consultant that he has never consented to the children living in Town B. He stated that he does not know why the mother moved there and his knowledge, she does not have any connections there.
The father asserted the family consultant that he considers that X and Y’s behavioural issues have improved since they had been medicated, and also as they have matured. He indicated that X has had social issues at his school, and he would be willing to consider him changing schools of this will assist him. The mother asserted the family consultant that she considered that both these children had benefited from medication.
The family consultant stated that the parents had agreed that it may be in the child X’s best interests to change schools.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] as has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Section 67U of the Act provides that in proceedings for a recovery order, the Court may, subject to s67V, make such recovery order as it thinks proper.
Section 67V of the Act provides that in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have meaningful relationships with both parents and would benefit from a continuance of those relationships.
Should the children remain in the mother’s primary care in Town B, and spend time with the father as proposed by the mother on an interim basis, there is a significant risk that the children’s meaningful relationship with the father will be detrimentally affected. This is because Town B is some 450 kms distance from the father’s residence in Town D, it will be impracticable for the parties’ former equal time arrangement to resume, and there is also a significant risk that the father will not be able to spend substantial and significant time with the children should the mother remain living in Town B with the children.
In this context the Court takes into account the children’s views expressed to the family consultant, inter alia, that they wish to either resume the equal time arrangement in Sydney (Y and Z) or in the case of X, to live with the father in Sydney and spend alternate weekends with the mother, should she return to Sydney.
The family consultant had stated that it is not considered possible that the children could maintain spending substantial time with the father if they relocated to the Region J, as the distances would be considered excessive. She stated that as they have lived in an equal time arrangement since 2015, is also likely that their relationships with the father would have diminished if they were unable to continue living with him as they were previously, due to the geographical distance. She opined that the distance was also likely to raise serious practical issues for the children to be able to maintain their relationships. The Court takes into account these statements of the family consultant, whilst acknowledging that her Memorandum is untested.
Counsel for the mother indicated the court at the interim hearing that if the court made the proposed recovery order sought by the father, the mother would propose to spend time with the children every second weekend and half the school holidays. In such circumstances, assuming such time could be practically facilitated (noting that the evidence is sparse in this context), there would be a reasonable prospect of the children’s meaningful relationship with the mother being maintained.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The parties each make allegations of family violence the one against the other. The mother make significant allegations in relation to the father filming her on certain occasions. The father concedes filming the mother on at least two occasions, although he alleges that it this was for the safety of the children. The mother asserted to the family consultant that she did not have any concerns with the children’s physical safety with the father confirmed the children have good relationship with him. The mother does assert concerns about the children’s emotional well-being with the father.
The court observes that the mother does not propose to return to Sydney to live, which may well assist in ameliorating the risk of conflict between the parties occurring in the presence of one or more of the children. There is a significant suggestion on the material before the Court that the reduction of conflict between the parents in the presence of the children, or any one of them, would be conducive to the children’s emotional well being (for example, see the school counsellor’s report of 21 February 2018 stating, inter alia, “Parents remain hostile, openly criticise the other in front of the children.”)
In the view of the court, there will be no unacceptable risk of harm posed to the children in returning to the father’s primary care, should the recovery order be made, again noting the mother does not intend to return to live in Sydney should the recovery order be made. In this context, the court takes into account, in particular, the children’s views in relation to the father and his partner, the father’s (supported by the mother) historical actions in having X and Y obtain medical treatment (including the prescription of medication for each boy) for their behavioural and other difficulties, the apparent subsistence of the equal time arrangement post separation until recently, and the father’s allegations as to the children’s behaviour in his household.
The mother contended at the interim hearing, inter alia, that the co-parenting relationship was virtually non-existent. She contended that her move to the Region J with the children was in their best interests because, in particular for X and Y, they needed a circuit breaker (or a fresh start as she had asserted to the family consultant) and attend a new school on the Region J by reason of their significant behavioural difficulties at their old schools in Town C including damaged peer relationships. She contended that she had a plan for the children, in particular X and Y, being, inter alia, a fresh start on the Region J, with a new school, new surroundings and friends. She contended that the father had no plan for the children should the recovery order be made.
The material before the court relating to X and Y’s adverse behaviour at the Town C schools, and elsewhere, over a significant period of time, is concerning. Inter alia, the court refers to the boy’s disruptive behaviour at school, disrespectful conduct, and other antisocial behaviour. There have been suspensions from school on occasion.
However, there is a significant suggestion, on the material before the court, that the father, supported by the mother, has sought to take steps to deal with these difficulties of X and Y. In particular, through the engagement of medical practitioners and assistance from their school. It is apparent that such medical treatment and review of X and Y is ongoing, in particular through the paediatrician. The father asserts, inter alia, that the child X has worked as a school café volunteer and would continue that work if returned to Sydney. The Court observes the reference to a positive academic achievement for the child X on 20 March 2020 from his school. The father asserts that the child Y has friends in Sydney and in this regard the Court refers to Y’s comments to the family consultant about his friends.
The court observes that the child X was assessed by the paediatrician as meeting the criteria for ADHD. In relation to the child Y the paediatrician opined in his report of 28 August 2018 that it would seem that Y can be quite oppositional but it was not clear whether he might have an ADHD component which would need later clarification. The paediatrician in his later report of 26 November 2018 referred to Y’s meltdowns appearing to be triggered by anxiety.
The paediatrician prescribed medication for both X and Y. He reported, in relation to X, that he had positive responses to medication. In relation to Y, the paediatrician’s report on 24 February 2020 stated that Y was still having certain difficulties, including concentration, impulsivity and anxiety and that a change in medication was reasonable to implement. The court observes that the child Y told the family consultant that he feels like the medication did assist him.
The court should state that the documentary material from the boys’ school is not uniformly negative in relation to the boys. For example, semester school reports for each boy over about the last two years contain positive comments in relation to them, in respect to certain subjects. Further, there is reference in these documents, albeit on limited occasions, to insight and remorse being displayed by the boys in relation to their behaviour. As to the school’s efforts to assist the boys in managing their adverse behaviour at school, there is some documentary material relating to the school considering (for example on 13 March 2019, being a suspension resolution meeting in relation to the child Y, with the father and the principal of the school being present) strategies to assist Y, such as anger management. And there is a helpful letter from the then deputy principal dated 26 July 2019 addressed to the school staff as to how the staff might optimally deal with the X’s adverse behaviour (“The key thing with X is that if he does become angry or aggressive, the time to talk to him is not at the time of the incident. If you allow him to reflect, he is able to consider what he has done, what he should do next time and how he can repair the situation. Essentially, if you back him into a corner “he will come out fighting”, and the opportunity for him to reflect on his behaviour is unlikely to occur.”)
In the context of this continued medical treatment for X and Y, the court refers to the children’s wishes to return to Sydney, as expressed to the family consultant. Further, in relation to the child X, he told the family consultant, inter alia, that he would like to resume sports and would be open to changing schools but in the father’s local area. Should there be a change of schools for X this might assist with the issue of bullying which the mother contends has been an issue for X, though it is not clear that it would. In relation to the child Y, he told the family consultant of “all the effort he has put into his friendships in Sydney”.
The court should state that there is a significant suggestion, on the material before the court, that X and Y’s behavioural and other difficulties have been in existence for a significant period of time. For example, the court refers to the report of the Town D Public School in relation to the child X when he was 11 years of age in year 6, referring to possible ADHD and/or oppositional Defiance disorder (see the mother’s schedule of subpoenaed notes in relation to the paediatrician). The psychologist report of Dr G dated 29 July 2016 in relation to X, for example, refers to X’s difficulties applying psychological skills from the treatment. The child Y first attended upon the paediatrician on 28 August 2018.
It is not without relevance to point to the historical nature and extent of X and Y’s behavioural difficulties, together with X’s diagnosis of ADHD and the paediatrician’s treatment and comments in relation to Y, when considering the mother’s contention that it is in their best interests that they have a fresh start on the Region J, with, inter alia, a new school and relationships.
The mother asserts, inter alia, in relation to the move to the Region J with the children, that X and Y began attending the Town A High School in person from 9 AM to 12:50 PM on 4 May 2020 (including daily attendances), have made positive comments to the mother in that context, and asserts that the children have benefited from their move with the mother to the Region J. She further asserts in her most recent affidavit of particular measures taken in relation to the boys in relation to Town A High School including a mentor. Yet, apart from the mother’s assertions and contentions in this context, there is no significant evidence before the court, expert or otherwise, to the effect that there is a real prospect that X and Y’s behavioural and other difficulties, particularly in the school arena, may or will be significantly ameliorated by attending the Town A High School, even with the particular measures asserted to have been taken by the mother in relation to that school (such as provision of a mentor) and/or living in their new locale on the Region J. The court observes that the boys’ present school, inter alia, has counselling and would offer sporting opportunities, and the court also refers to its discussion above in relation to the boys’ school’s responses to the boys’ difficulties at school, by reference to the documentary material before the court.. Again, it is not without relevance that the boys’ school at Town C, for example, has organised extracurricular activities for the eldest child X with the café volunteer work.
The court observes that the paediatrician’s rooms are at Town K. The paediatrician has been treating X and Y since about the second half of 2018. Whilst the mother may well be able to facilitate consultations between the paediatrician and X and Y, there probably is a practical benefit to these children living relatively close to the offices of their paediatrician, in particular for face-to-face consultations.
Again, the father and the mother indicated to the family consultant that a change of school for X would be helpful for him. X is open to the idea. Should the recovery order be made, the parties can seek to agree upon a new high school for X. The court proposes to appoint an ICL which potentially can assist the parties in this process. The court has not overlooked the mother’s contentions in relation to a lack of alternative school availability for the child X, however, in the view of the court, this issue can be explored in a more fulsome manner, from an evidentiary perspective, in the near future, again noting the parties’ agreement in this context at the Child Inclusive Conference.
The court refers to the children’s statements expressed to the family consultant, which are further discussed below in relation to the views of the children. The Court refers to their wishes, inter alia, to return to Sydney.
The court has a concern in relation to the children’s statements to the family consultant as to their concerns raised in respect to the mother and her new partner. For example, the court refers to the children’s adverse statements in relation to the mother’s new partner, including statements as to conflict between X and Y and the mother’s new partner, and statements as to constant arguments between the mother and her new partner. The Court is concerned with Y’s statements to the family consultant that “it feels like (the mother) is constantly annoyed with him. He said that she blames him when she argues with Mr F, and he does not know why.” In this context the court refers to the mother’s concession that there has been at times heated conversations, where her new partner has supported her, in relation to disciplining and setting boundaries for X and Y. The Court also refers in this context to the father’s allegations that he has observed inappropriate disciplining of the child Y by the mother.
In this context of the children’s wishes to return to Sydney and their comments to the family consultant in relation to the mother and her new partner, the court takes into account the statements of the family consultant that the children appeared to share a closer relationship with the father and had raised some concerns about the mother and her new partner.
As discussed below, in relation to the children’s views and statements to the family consultant, the court acknowledges that the family consultant’s memorandum is untested and that the parties are in dispute as to the children’s views.
Nevertheless, on the material before the court, and taking into account the children’s views and statements to the family consultant, discussed above and below, the court has a concern that should the children remain living with the mother and her new partner on the Region J there is a significant risk that they will experience emotional harm. On the material before the court, there is a significant suggestion that the children’s emotional well-being will be enhanced by returning to Sydney.
The mother asserts that one or more of the children will suffer significant mental harm should they be required to return to Sydney. In this context, again the Court refers to its discussions and views expressed above, the views and statements of the children expressed to the family consultant, and the material relating to the paediatrician (whilst acknowledging that the paediatrician’s reports remain untested).
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court refers to the children’s views stated to the family consultant at the CIC.
The youngest child Z, who presented as a polite and thoughtful girl, stated, inter alia, that if she had to live primarily with one parent, she would prefer to live primarily with the father. She stated that she did not want to live primarily with the mother on the Region J, as she did not want to spend more time with the mother’s new partner. She said that she also does not want to spend less time with the father.
She stated that she does not have a good relationship with the mother’s new partner, and she tries not to acknowledge him. She stated that he is really rude to her and her brothers, he yells at them and the mother a lot. She indicated that there had been conflict between her brothers and the mothers new partner. She stated that she has seen the mother’s new partner throw a T-shirt at Y, and she has seen the mother push her new partner.
This child raise no concerns about the father’s new partner, and said that she has a good relationship with her.
This child stated that the mother has slapped her and slapped her brothers, the father only yells at them, but this is rare. She stated that the mother speaks negatively about the father, but the father does not speak negatively about the mother.
The child Y, who presented as thoughtful and sensitive boy, became upset during the interview with the family consultant and cried. He stated the family consultant that the mother had said that they had moved to the Region J for “a better lifestyle”, but he noticed that the mother’s new partner was still aggressive.
Y stated that all the effort he put into his friendships in Sydney feels like a waste of time, it is going to move to the Region J. He stated that he feels like medication did assist him. He stated that he used to play sports, but did not do so in the last two years, because the mother said that they would be moving. He stated that he would like to return to playing sports.
This child stated that he has a good relationship with the father. He stated that he does not feel scared of the father, and he also likes his partner.
Y stated that he and the mother sometimes “bump heads” and it feels like she is constantly annoyed with them. He said that she blames in which he argues with her new partner, and he does not know why. Y said that he would like it if the mother changed her attitude towards him and accepted him for who he is.
This child reported that he sometimes gets along with the mother’s new partner, but sometimes does not. He said that they both yell at each other and call each other names.
This child stated that he found the previous week about arrangement “fine”, but he sometimes wanted to remain with the father because he was worried that the mother was going to pack them up in the middle of the night and leave, and he would not see the father again.
This child stated that when they initially moved to the Region J, he thought it was a holiday, but when he realised that they had moved he became upset and was worried he would not see the father again.
This child stated that living on the Region J would be horrible because he loves the father “so much”. He said that he would prefer the mother return to Sydney and he returned to living in an equal time arrangement.
This child stated that he has been physically disciplined by the mother, and she has punched him and slapped him.
The Child X , presented as a polite, reserved boy.
He stated to the family consultant that the mother had been talking about relocating for a while, and he believe she wanted to move so that he and Y could have a fresh start. He said that he did not really want to move far away.
X stated that he has had significant social issues, and he would be teased about his previous poor behaviour. He said he does not have any friendships, although he has had significantly less problem behaviour recently. He said that he has previously been involved with sports, which he would like to resume. He also indicated that he would be open to changing schools, but in the father’s local area.
X said that he has a good relationship with the father, and feels like he understands him. He said he also has a good relationship with the father’s partner.
X said his relationship with the mother has sometimes been up-and-down but recently has been good. He raised concerns that she can become angry easily when she is drinking alcohol, which he said that she does often. He said that he does not talk to the mother much about problems.
X stated that he and the mother’s new partner get along well together sometimes, but he can sometimes be rude and start an argument he does not get his own way. He said that he does feel scared of the mother’s new partner, as he has previously pushed him and clenched his fist at him, and he does not know what he will do.
X said that he used to think the equal time arrangement was reasonable, because it allowed him the same time with each parent. He said however, that sometimes it was hard because the mother had high expectations and was not flexible. He indicated that he would probably feel differently if the mother’s new partner was not present, and the mother and her new partner’s arguments are constant and boring.
X stated that he would prefer to live in Sydney and spent alternative weekends with the mother, if she returned to live in Sydney.
X stated that he does not think his parents will ever get along, and he does not think it is healthy for him and his siblings to see his parents argue or be disrespectful. He said that the mother speaks negatively about the father and his partner.
There is a suggestion in the documentary material from the boys’ school that, in relation to the child X, in about early May, specifically 7 May 2019, he was experiencing anger by reason of the mother stating that she will be moving “up to Region J”.
In relation to the child X, the father’s tender bundle, page 8, relating to Town C High school, refers to this child coming to the school counsellor on 18 February 2020 and telling her that the mother “has sold the house and he has 35 days left at Town C. He was on the verge of tears and is very unhappy to be moving…. He wants to stay with Dad but Mum won’t let him. He doesn’t like the kids at Town C but doesn’t want to move either.”
The children are aged 15, 13 and 11.
The Court acknowledges that the report of the family consultant is untested and that there is a factual dispute between the parties relating to the views of the children as to which residence they would prefer to live. The court notes the mother’s assertions that she believes the father has influenced the children in the lead up to the child inclusive conference. Nevertheless, the Court would observe that the family consultant did not express any reservations as to their views. And moreover, she stated that at the children’s ages and developmental stages, the court could place significant weight on their views, particularly the child X’s, and the court does so.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations. The father asserts that there are extended family members who live in Sydney and its environs, and that when there are family gatherings the children tell him of their enjoyment.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties would appear to have each taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties appear to have maintained the children whilst they were in each parties’ respective care post separation.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Should the children remain living on the Region J, with the father remaining living in Sydney, there are practical difficulties as to the extent to which the children can spend time with the father. The Court refers to its discussion above under the meaningful relationship primary consideration.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion on the material before the court that both parties cannot meet the intellectual needs of the children. The parties are in dispute as to the issue of whether each party is able to optimally meet the emotional needs of the children. The court refers to its discussions above under the need to protect primary consideration, particularly in relation to the children’s statements to the family consultant relating to their experiences in each parent’s household.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The court refers to its discussions above under the need to protect primary consideration, including in relation to the nature and extent of the boys’ behavioural and other difficulties.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations. The court refers to its discussion below in relation to the mother’s actions in moving to the Region J with the children. There has been at times, inter alia, significant disputation between the parents in the presence of one or more of the children, and their ability to communicate with each other in relation to the children consistently has been unsatisfactory (see the CIC Memorandum).
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is not possible to meaningfully consider this additional consideration at this very early stage in the proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The mother contends that if the recovery order is made, the father will not be able to adequately care for the children, inter alia, because of his employment obligations. In this regard, the court refers to the mother’s affidavit filed 7 May 2020.
The father, for his part, in his affidavit filed 6 May 2020, asserts and alleges that his employer of some 17 years has agreed to give him flexibility and to permit him to work from home. The father asserts and alleges in that affidavit that with the flexibility afforded to him by his employer he will be able to care for the children if they were to come back into his care on a full-time basis.
The father annexes to his affidavit what he asserts is the current NSW Department of Education advice downloaded from the Department of Education website relating to different phases of children’s return to school under the current Covid19 situation, and which the court takes into account in this context.
The father also annexes to his affidavit a letter from his employer dated 6 May 2020 which states, inter alia, that the father was previously afforded a flexible working arrangement following his separation from the mother which the employer was more than happy to agree to. The letter states that since then the arrangement has worked very effectively. The letter from the employer goes on to state, “More recently with the Covid19 situation, (the employer) have needed to implement working from home arrangements, which we have done for two of our three drafts people with (the father) remaining at the office. Due to Mr Gaffrey’s position as a professional, these flexible working arrangements can be adapted for (the father) if he is required to work from home to provide support for his children. We have always found (the father) to be honest, trustworthy and reliable, and find no reason as to why this wouldn’t continue in a work from home situation… (The employer) are happy to provide a more flexible arrangement in order to keep (the father) as a valued employee.”
This letter from the employer remains untested. Nevertheless, the court takes the employer’s letter into account, together with the father’s assertions of flexible employment arrangements, and is of the view that there is a reasonable prospect that the father will be able to adequately care for the children should recovery order be made. As to the issue of WiFi that the mother alleges, such an issue could be addressed by the father, from a practical perspective, should the need arise, whether by reason of his working from home or because of the children’s educational or social needs. In this latter context, the mother does not point to any practical impediment to Wi-Fi being established in the father’s home.
The mother contends that the father waived in his approval and/or opposition to the mothers move with the children to the Region J. This is disputed by the father.
The Court observes the mother’s statement to the family consultant that the father did not expressly provide his consent for the children to relocate.
The Court observes that the father’s solicitors wrote to the mother’s solicitors on 12 March 2020, communicating the father’s lack of consent with the children being relocated to the Region J. Those solicitors requested from the mothers solicitors, “urgent confirmation that your client acknowledges the objection to a relocation and that she will follow the usual process of seeking court approval before taking any logistical steps in that regard.” Again, it would appear that the mother has taken the children with her to the Region J on about 20 March 2020.
The Court would observe, again, that the final consent parenting orders of 6 July 2015 provided that neither party be permitted to change the children’s place of residence to any location greater than 25 km from the town of Town C, NSW, without the other party’s written consent. The court would further observe, in this context, that there is a significant suggestion, on the material before the court, that the mother had been contemplating such a move for a significant period prior to late March 2020. In the father’s tender bundle of documents, for example, an email from the principal of Town C Public School dated 11 June 2019 to Legal Services, corporate, refers to the principal having been advised in writing by the mother that she was taking her daughter out of the school and enrolling her in a public school located north Town L. The principal also refers to the mother having also communicated that she will be enrolling her sons in Town A school.
Respectfully, in view of the above 2015 orders relating to the parties remaining living within a certain area in Sydney, the mother should have approached the court for permission to relocate to the Region J with the children before she did so in March 2020.
A submission was made by the mother that the fact that the father returned the children to the mother’s care recently was inconsistent with his application for a recovery order. This submission is not accepted noting the above reference to the mother’s affidavit filed 20 April 2020, paragraph 12, the 2015 parenting orders relating to school holidays, and including the father’s prosecution of his proposed recovery order application in this Court.
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children and proper to make the father’s proposed recovery order.
It will be in the best interests of the children to make interim orders that they spend time with the mother on alternative weekends from Friday 3:30 PM to Sunday 5 PM, and that they also spend half the school holidays with her; such orders are consistent with the submission made by the mother’s counsel when asked what time the mother would seek to spend with the children should the recovery order be made. In circumstances where the Court makes such time-with order, it will be in the children’s best interests to make an interim order that they live with the father.
The court proposes to appoint an ICL to represent the children. The court will relist the proceedings before the court for mention in about six weeks time to enable the ICL to enter the proceedings. Again, the ICL can potentially assist the parties in relation to a possible change of school for the child X. The ICL could also potentially assist the parties in relation to further strategies to assist both children in managing their behaviour.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 12 May 2020
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