Grant and Terry
[2007] FMCAfam 1215
•20 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRANT & TERRY | [2007] FMCAfam 1215 |
| FAMILY LAW – Children aged 10 and 8 – interim arrangements for care – presumption of equal shared parental responsibility – father lives in [Y] – mother lives in Adelaide – consideration of section 60CC factors – best interests. |
| Family Law Act1975, ss.60CC, 61DA, 65DAA |
| Applicant: | MS GRANT |
| Respondent: | MS TERRY |
| File number: | ADC 2789 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 20 August 2007 |
| Date of last submission: | 20 August 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 20 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.J. Childs |
| Solicitors for the Applicant: | Legal Services Commission |
| Counsel for the Respondent: | Ms H.A. Leeson |
| Solicitors for the Respondent: | Judith Cocks |
ORDERS
The parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the children [B] born in 1997 and [C] born in 1999.
The said children live with the mother.
The father is to return the child [C] born in 1999 to the mother by 4:00pm on 21 August 2007.
The said children are to spend time with the father whilst he is living in a location greater than 100km from the children’s usual place of residence:
(a)In each of the three short term school holiday periods from 4:00pm on the Friday of the last school term until 4:00pm on the Friday immediately prior to the start of the next school term; and
(b)In the Christmas/January school holiday periods as follows:
(i)In 2007/2008 from 4:00pm on 9 January 2008 until 4:00pm on 27 January 2008 and thereafter in the year 2009/2010 school holiday period and each alternate year thereafter for the last three weeks of the said school holiday period commencing on a date to be agreed between the parties for a period of at least three weeks concluding at 4:00pm on the Friday immediately prior to the commencement of the new school term; and
(ii)In the first half of the Christmas/January school holiday period in the years 2008/2009 and each alternate year commencing at 4:00pm on the Friday of the last day of the school term and concluding after a period of three weeks on the Friday at 4:00pm or at 4:00pm on 6 January, whichever date is earlier.
(iii)for three weekends each school term in Adelaide between 4:00pm Friday and 4:00pm Sunday provided he gives the mother 14 days notice in writing of the weekends;
(c)at any other times as the parties may agree from time to time.
(d)from 10:00am on Christmas Eve, 24 December 2007 until 11:00am on Christmas Day, 25 December 2007.
An injunction issue restraining the mother from allowing the said children to come into contact with Mr C.
The father is to collect the said children from the mother’s home at the commencement and conclusion of the period to spend time with the said children.
The said children are to communicate with their father whilst in the care of their mother.
The said children are to communicate with their mother whilst in the care of their father.
The parties are to advise the other party of their current residential addresses and contact telephone numbers to be used for emergency contact numbers and for any telephone communications between the children and the other parent.
The parties are to advise the other party as soon as possible in the event of any medical emergency or serious injury suffered by either child and do involve the other party as soon as possible in any decisions relating to medical care and treatment of either of the children.
This matter be listed for final hearing before Federal Magistrate Brown on 18 and 19 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 28 January 2008.
That pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 14 December 2007.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
IT IS NOTED that publication of this judgment under the pseudonym Grant & Terry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2789 of 2007
| MS GRANT |
Applicant
And
| MS TERRY |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally, immediately following the interim hearing. As the parties’ competing applications have been fixed for final hearing and a family report ordered, it is appropriate that the reasons be transcribed and released to each of the parties.
This afternoon, I am called upon to make some interim orders to deal with arrangements for the care of two children, [B] who was born in 1997, and [C] who was born in 1999. The parties to the proceedings are the children's parents, their mother Ms Grant and their father Ms Terry.
It is common ground between the parties that they have been separated for some time now. Since they separated, the two children concerned have predominantly lived with the mother, although they have spent regular periods of time with the father. It seems clear to me that both children have a significant relationship with both their parents.
The mother commenced these proceeding on 28 May 2007. There was nothing particularly urgent about her application and it seems to have been given a return date, in the normal course of events, on 2 July 2007. On that occasion it seems that the father had not been served with the application and the matter was adjourned until today.
In the meantime a crisis has arisen. It was a very serious crisis. It was a potentially life-threatening crisis, so far as [B] was concerned. Since that time powerful emotions have been unleashed and the parties' parenting relationship, which seems to me to be a poor one, has got worse.
What occurred is this: [B] became seriously ill with influenza. As is, I think, well known, particularly to the parents of small children, there is in this country, at the present time, an influenza epidemic of some proportions and there is a strain of influenza that is very serious indeed. Unfortunately both children and adults have been affected by it, and unfortunately and sadly both adults and children have died as a result of contracting influenza.
The mother brought another urgent application on 16 August 2007. What she seeks in her affidavit is the simple order that [C] be returned to her care. She filed her application on 16 August and, at her request, it was listed today, 20 August. I have to deal with the matter against that background.
It is the father's position that, over very many years, he has had concerns about the mother's ability to care for these two children.
His concerns came to a head when [B] was hospitalised in Adelaide.
I should say that the father, who is a self-employed [animal] trainer, currently lives in [Y] in Victoria with his present partner and two of his other children. When he learned about [B]'s illness he came to the hospital in Adelaide and ultimately [C] returned with him to [Y] and she is still there.
That is the bare bones of the matter. It is far more complicated than that from both parties' points of view. Today the parties will be aware that I have not seen either of them in the witness box. I have not seen either of them answering difficult questions that may be posed by counsel for the other party. Today I have only heard submissions from counsel and I have read affidavits, which both of the parties have prepared.
Where there are disputes of fact, between those affidavits, it is very difficult, if not impossible, for me to resolve which of the parties' accounts of what has occurred in the past is correct. It is very difficult for me to form impressions of what the parties are like as parents and people. Sadly, they are both very critical of the other.
From the mother's point of view, it is her position that she says that she has attempted to facilitate the children spending time with their father, but she has been confronted with the children being returned late to her care and other difficulties of that kind.
The father is very critical of the mother for her parenting of both children. [B] is a child with some special needs. He suffers from a disorder called central processing disorder. He also has dyslexia, and those difficulties are likely to cause him to have problems at school.
It is the father's position that the mother is hell-bent on excluding him from having any meaningful involvement in the children's lives; that she lacks insight into [B]'s special needs and how they can best be catered for; and that she has moved address often and, as a result, changed the children's schooling to their mutual detriment. He is also critical that the mother, in the past, has allowed the children to come into contact with a person who was charged with some serious criminal offences involving abuse of children.
He also complains that [C] has been bullied at school and the mother has not taken her complaints seriously. It is also his position that [C], over some time, has strongly suggested that she wishes to live with him, most recently in the Christmas school holidays of 2006 and 2007, and again in April and July of this year; but he has been able to persuade her to return on each occasion.
The father also complains that the mother was tardy in informing him that [B] was seriously unwell. Then she tried to fob him off, by telling him it was not necessary for him to come to Adelaide, and it was only when things had reached the point where [B] had been transferred from the [Z] Medical Centre to the Women's and Children's Hospital, she informed him that he should come to Adelaide, but only when she really had no alternative.
It is his position thereafter that, in those difficult circumstances, it was clearly appropriate that [C] should be cared for by him, but the mother was resistant to that and was obstructive. At any event, regardless of what the position is – and the mother, I should say, deposes that the father was emotionally volatile, when he came to the hospital and difficult to deal with - there was an unpleasant incident between the parties at the hospital.
I am not in a position to definitively determine whether one party was more to blame than the other. It is, I think, my apprehension at this stage, although I cannot positively make this finding, that over some years, the parties have a poor and mistrustful relationship with one another, and in such circumstances have difficulty in conveying information between them.
As I say, the father's view of the mother is essentially negative. He has little good, if anything, to say about the mother, so I suppose it is hardly surprising that the parties do not have a good relationship with one another.
At any event, there was an unfortunate incident between the parties. The police were involved. It is the mother's position that the father effectively decamped with [C] from the hospital. The father has a different view. He says that the police, trying to keep the peace between the parties at the hospital, allowed him to leave with the child. He left with [C] on 12 August. He took her to his home in [Y] and he has enrolled her at school in [Y]. I have a letter from the [M] Primary School, which indicates that she was indeed enrolled on 13 August and is apparently well settled there.
As one perhaps would imagine, the father speaks of the advantages of everything to do with his household and his current partner and he is supported by the principal of the [M] Primary School.
On the other hand, it is the mother's position that the father acted precipitately and unilaterally and, by taking [C] so far away from her, who has been her primary and predominant carer for many years, has demonstrated his contempt for her and demonstrated his lack of insight into the responsibilities of being a parent.
The mother’s case is that although the father is critical of the mother for not consulting with him in the past about the children, he is just as guilty of poor parenting practice by his action in removing [C] to [Y].
Notwithstanding this is an interim hearing and the evidence is incomplete, I still have to make a decision. The father's position is that the children should be united in his care and live with him in Victoria. The mother's position is that [C] should be returned to her care forthwith and I should make orders for both children to live with her and spend time with their father, as she proposes in her initiating application, during school holidays.
I turn to the legal principles which I have to apply in the case. Whatever I decide, I have to be satisfied that the arrangements are likely to be in the best interests of the children concerned. In this regard, I have to consider a number of matters in the Family Law Act, particularly at section 60CC. There are primary considerations and additional considerations.
By way of primary considerations, firstly I have to consider the benefits of the children having a meaningful relationship with both of their parents and secondly I have to consider the need to protect the children concerned from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
This is not a case where it is easy for the children to be cared for in a shared care arrangement because the parties live so far apart. As I said earlier, I am satisfied that the children have a meaningful relationship with both their parents and it is clear that they have spent extended periods of time in the care of them both.
I have to consider the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The father suggests that the mother is a neglectful parent.
I think, in this regard, it is of some moment that his concerns arise in the context of [B]'s illness. It seems that his longstanding discontent about the mother has come to the surface as recently as July of this year. Following the school holiday period, he was willing to return the children to the mother's care.
It is the thrust of his complaint that he does not believe that the mother has responded properly to [B]'s very serious illness, particularly that he alleges that [B] was left at home unattended when the mother was away with [C] and; that the mother was slow to respond to the illness.
At this stage, on the basis of the evidence before me, particularly the lack of medical evidence and the fact that it is clear that the child was admitted to hospital, I am not persuaded that I can make any definitive findings about that matter.
By way of additional considerations, I have to consider any views expressed by the child or children concerned. The father says that [C] is expressing strong views. It is, of course, not unknown for children to say one thing to one parent and another to another parent.
I have to consider [C]'s maturity and the context of those purported views. I do not think at this stage that [C]'s views - which of course are in dispute, I suspect, between the parties – should be definitive or determinative in this matter. I reach this view because of the conflicted nature of the parties’ relationship with one another.
I have to consider the nature of the relationship of the children with each of their parents. As I have already said, I consider that they have a significant relationship with both their parents.
I have to consider the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. The father is critical of the mother. The mother is critical of the father in this regard also.
I think there is some strong indication that the father did act unilaterally, in the heat of the moment when he took [C] to [Y]. As I say, I am concerned about the behaviour of both parents at the hospital when [B] was ill. That this unfortunate incident occurred causes me grave concern.
I have to consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents or any other child. The father was, in the heat of the moment, I suspect, content to take [C] to [Y], away from the mother and also from [B]. Now he wants the children reunited in his care, far away from where they previously lived.
I think, in this case, the fact that the two children concerned have lived in their mother's care for a very significant period of time is something to which I can have significant regard. The parties are not recently separated. They have been separated for some time. That, in my view, is the most significant factor in this matter and is one in favour of the children concerned living in the arrangement, which has more or less been in place, since the parties separated some years ago now.
Both parties are critical of the other's insight as a parent and capacity to parent these children. Again, in that context I think it is significant that the father waited for this crisis to bring his application. As I have already indicated, I do not think I am in a position to make any determinative findings about the father's criticisms of the mother at this stage. I note however that they are not supported by any other person or any other evidence.
I appreciate that these proceedings have been brought quickly against a background of urgency. Both parties, I think, are critical of alleged violent behaviour of the other, particularly at the hospital in August, but I do not think these are considerations that should be to the forefront of the court's mind at this stage.
In this case, before I make any parenting order, I have to consider the presumption that is contained in section 61DA of the Family Law Act. It is to be presumed that it is in a child's best interests for his or her parents to have equal shared parental responsibility for that child.
The presumption is rebutted by reasonable grounds that cause the court to believe that family violence or abuse has occurred, or that it would not be in the best interests of the children concerned for there to be equal shared parental responsibility. At the interim stage the presumption is rebutted if the court does not think it would be appropriate for it to be applied.
In this case, notwithstanding the difficulties between the parties, it is the case that both are, I think, vitally interested in these two children, and up until this stage they have been able to make arrangements between themselves for the care of these two children. In these circumstances, I do not think the presumption is rebutted in this case.
Therefore, pursuant to section 65DAA, I have to consider the children spending either equal time or substantial and significant time with both their parents.
In determining whether it should be equal time or substantial and significant time, I have to consider issues to do with the children's best interests and reasonable practicality. In this case, given the distance between the parties' homes, I do not think it is reasonably practicable for there to be either an equal time arrangement or substantial and significant time arrangement.
For the reasons I have already expressed, I have come to the conclusion, at this interim stage, that the two children concerned should live with the mother until the final hearing of the matter and accordingly that the father should return [C] to the mother. I propose that her return should occur quickly.
It is, I think, appropriate that arrangements be made for the two children to spend significant periods of time with their father during the school holidays. The mother has proposals, in her application, for the father to spend most of the October school holiday and a period of time at the longer school holiday.
I am also going to make an order that the father be at liberty to spend time with the children in Adelaide on three weekends each school term, if he gives appropriate notice to the mother.
I do not think it is reasonably practicable for these two children to be driving between [Y] and Adelaide on alternate weekends, particularly as this has not been their practice up until this time.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 20 August 2007
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