Garant and Garant

[2013] FCCA 841

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARANT & GARANT [2013] FCCA 841

Catchwords:
FAMILY LAW – Interim parenting orders – significance of mature children’s views.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA & 65DAA

Applicant: MS GARANT

Respondent: MR GARANT

File Number: DGC 906 of 2013

Judgment of: Judge Phipps

Hearing date: 22 May 2013

Date of Last Submission: 22 May 2013

Delivered at: Dandenong

Delivered on: 22 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Moore

Solicitors for the Applicant: Borchard & Moore

Counsel for the Respondent: Mr Manuel

Solicitors for the Respondent: Waters Lawyers

ORDERS

1. THAT paragraphs 1 and 4 of the order made on 21 May 2013 are discharged.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. The children X born (omitted) 1998 and Y born (omitted) 2002 live with the husband.

2. The children spend time with and communicate with the wife:

   (a)Every alternate weekend from after school Friday to before school Monday commencing 31 May 2013;

   (b)Every Wednesday from after school until 7.30pm commencing 29 May 2013;

   (c)One week in the second term school holidays commencing from after school on the last day of term to 5.00pm on week later;

   (d)By telephone or electronic means in accordance with the children’s wishes;

   (e)Otherwise as agreed.

3. The children’s living with the husband commence this day.

4. That it is noted that this matter remains listed on 8 August 2013 for Mention.

5. That pursuant to ss.65DA(2) and 62 of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Garant & Garant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 906 of 2013

MS GARANT

Applicant

And

MR GARANT

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The application concerns two children, X born (omitted) 1998 and Y born (omitted) 2002.  The application was commenced by the wife on 16 April 2013 with her application and affidavit.  The husband filed a response and affidavit and both parties have filed financial statements as well.  The husband filed his on 15 May 2013.  The first court date was 21 May 2013.  On that day there were some consent interim orders made and an order made for the parties and the children to attend a Family Consultant on the same day.  That has happened and the Family Consultant, Mr N, gave an oral report.

2. The parties signed minutes of consent orders and made interim orders for the children to live with the wife and for the parties to have equal shared parental responsibility.  The orders provided for the parenting plan made on 1 May 2013 be discharged and the children spend time and communicate with the husband from after school on Friday to Sunday on each alternate weekend thereafter, Wednesday after school to 7.30pm, one week in school holidays and telephone time on Tuesdays and Thursdays. 

3. The children were living with the wife but the situation has now changed so far as proposals are concerned because of a recommendation from the Family Consultant.  The wife’s proposal is that those orders should remain as interim orders.  The father’s proposal is that they should be reversed, that is on an interim basis the children should live with him and spend alternate weekends and time each Wednesday or time during the week with their mother.  This has come about because of the Report of Mr N.

4. The brief background is that the parties married on (omitted) 1992 and separated under the one roof on 10 January 2013.  When the wife swore her affidavit on 10 April 2013, the parties were still together under the one roof.  The wife then left the home and there were intervention order proceedings initiated by the police. 

5. There had been earlier intervention order proceedings by the father.  What is relevant is perhaps best described in terms of Mr N’s reporting on his discussions with the parties.  He met first with the father.  The father described a relationship between the parties which was a quiet one.  There are no allegations of family violence and no allegations, according to the father, of quarrels, although I note that the mother’s affidavit is critical of the father’s behaviour.  The significant thing is that the husband told Mr N that he suspected the wife of having an affair.

6. At the suggestion of a friend or a workmate, he placed a tracking device on the wife’s car.  The wife found it and reported it to the police.  That led to the police and the maternal grandparents attending at the family home where the children had remained with the husband after the wife had left.  Without going into the detail of what was said to Mr N, the children went to live with their mother at the maternal grandparent’s house and police took out intervention order proceedings which were eventually settled by mutual undertakings.

7. That was the state of things on 21 May 2013.  On the other side, the wife suspects the husband of having an affair or using the services of prostitutes.  The husband believes that she placed a tracking device or a tracking application or app on his phone.  He says that because he would be at different places and the wife would ring him and say that she knew where he was.

8. A significant part of Mr N’s evidence is, or his report, is what the children told him.  X is fourteen and a half.  She has a firm view that she wishes to live with her father.  The parents are both employed and the employment pattern was that the wife worked during the day, the husband worked a night or late afternoon shift, a shift which finished around about midnight.  Both the children said to Mr N that there was a period of time for a month or so earlier this year after the separation under the one roof the mother would come home from work, shower, dress and would go out. 

9. X said the mother said she was going to her parents.  X did not believe this because she believed that the way the mother was dressed was not consistent with her merely visiting her parents.  Another aspect of what the husband said to Mr N was that he believed that his wife spent much of her time on the computer and would only go to bed shortly before he arrived home, about midnight or after midnight.

10. The wife believes that the husband would go out with a group of male work colleagues.  That they had a practice of going to strip clubs and to brothels.  There is considerable distrust between the parties.  There is no doubt that the husband did place a tracking device on the wife’s car, that is acknowledged.  Both children describe their father as caring for them.  They both feel comfortable with him and they are both uncomfortable in their grandparents’ home.  They are sharing a bedroom and a queen sized bed.  X is fourteen and a half years old and Y is 10 years old.  Mr N said he asked Y what happened, for instance, if one of them was getting dressed.  He said his sister would ask him if she was getting dressed to look in the other direction and Mr N said that siblings of this age and sex it is quite undesirable that they should be sharing the same bed.  At best, they should have separate beds, and a much better solution is for them to have separate bedrooms.  That is probably a temporary arrangement and something can be done about that if the children remain at the grandparents’ house.

11. What comes forcefully from Mr N’s evidence is the strong views of the children.  They wish to live with their father.  It is fair to say they are strong views and both gave Mr N reasons for those views.  Mr N considers them to be rational reasons.  The parties have both filed affidavits.  The wife’s affidavit describes herself as the principal carer for the children.  I need to refer briefly to the provisions of the Family Law Act 1975 (Cth). The parties are agreed that there be an order for equal shared parental responsibility and there is nothing in the material at the moment which would rebut the presumption in s.61DA and s.65DAA therefore applies, which requires me to consider that notwithstanding what the parties’ are proposing, that to consider equal time or substantial and significant time, whether that would be in the children’s best interests or reasonably practicable but neither party is proposing equal time. They have virtually mirror proposals as far as reasonably practical is concerned. Their current residences are quite close together, yet they plainly have difficulties in communicating. The evidence shows significant distrust of each other.

12. I must therefore refer to the best interest considerations. Section 60CA makes that the paramount consideration. Section 60B sets out of the objects of the Family Law Act 1975 (Cth) which I need to bear in mind and then s.60CC has the considerations for determining what is in the children’s best interests.

13. Either proposal would promote the benefit to the children of having a meaningful relationship with both parents.  For the second primary consideration there is no relevant evidence.  Of additional considerations, the views expressed by the children are obviously very significant in this case.  X is fourteen and a half years of age and she has a clear view and clear reasons for preferring to live with her father currently.  Y is 10 years of age and therefore that little bit younger and so less emphasis can be placed on his views, although he has the same view as X.

14. The next consideration is the nature of the relationship of each child with each of the child’s parents.  Mr N’s evidence, the relationship with the father at the moment is a strong one.  The children feel comfortable with him.  They both felt that their mother was the one who told them what to do rather than the softer approach of their father.  They are uncomfortable in their grandparents’ house.  At the moment, at least, there would appear to be a better parental relationship between father and children than mother and children, I emphasise at the moment.

15. The only other relevant matter I need to refer to is the capacity  to care for the children.  Both would appear to have that capacity.  This is a case where there are children with strong views, one fourteen and a half years old and one ten years old and they must, particularly with the fourteen and a half year old, be the deciding factor.  Indeed at the moment, if the children stayed with their mother in circumstances where they want to live with their father, it might damage their relationship with their mother, rather than satisfy the primary consideration and the objects of the acts of promoting a meaningful relationship with each parent.

16. Perhaps the parties did not anticipate the strong views of the children.  So far as the time is concerned, Mr N recommended alternate weekends and some time each week in the mid-week.  X said to Mr N that she would like to see her mother once a fortnight, overnight on Saturday.  Mr N has recommended more than that, and the benefit is it will help maintain and promote her relationship with her mother without straining it. The midweek time I think is essentially conceded.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Phipps.

Date:  18 July 2013