GRANT & GRANT

[2017] FamCA 291

FAMILY COURT OF AUSTRALIA

GRANT & GRANT [2017] FamCA 291

FAMILY LAW – CHILDREN – Interim orders – with whom a child spends time – overnight time – where husband seeks overnight time for the parties’ daughter aged 4 – where the wife opposes – where the wife says the child will not cope with separation – where the child already spends substantial time with the father each Saturday and Sunday –where the Court considers the evidence of the family consultant that the child should not have overnight time – where the Court considers it is the best interest of the child to spend overnight time with the husband – Husband’s application allowed.

FAMILY LAW – CHILDREN – Interim orders – international travel – where the wife is an American citizen and seeks to take the children to the United States of America and Country D over the Christmas 2017 holidays – where the husband opposes the application – where the Court considers that the United States of America and Country D are Hague Convention countries – where the Court balanced the interests of the children having a meaningful relationship with the wife’s family and their relationship with the husband – where international travel allowed – Wife’s application allowed.

Family Law Act 1975 (Cth) s 60CC

Andrew & Delaine [2009] FamCAFC 182
APPLICANT:	Ms Grant

RESPONDENT: Mr Grant

FILE NUMBER: ADC 1153 of 2016

DATE DELIVERED: 10 May 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 2 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Jordan & Fowler

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: BBS Lawyers

Orders

it is ordered until further order:

1. That the previous parenting orders be discharged.

2. That the parties each have equal shared parental responsibility for B (“B”) born … 2012 and C (“C”) born … 2016.

3. That until further order the children live with the wife and spend time with the husband as follows:-

   (a)       With B:

   (i)From Monday at the conclusion of the child’s attendance at the Early Learning Centre or school to the commencement of her attendance at the Early Learning Centre or school (and if neither to the wife at 9.00 am) on the following Tuesday commencing Monday 22 May 2017 and each alternate week thereafter;

   (ii)From 10.00 am Saturday to 6.00 pm Sunday commencing 13 May 2017 and  alternate week thereafter:

   (b)       With C:

   (i)     Each Monday and Friday from 9.00 am to 11.00 am.

4. That the wife have leave to remove the children from the Commonwealth of Australia for a period of twenty one (21) days during December 2017 and January 2018 at such times as may be agreed between the parties or as ordered by the Court.

5. That within thirty (30) days of the wife’s intended date of travel she provide to the husband:-

   (a)        an itinerary of travel;

   (b)the address and contact details of each place that the children are to reside in;

   (c)return flights for the children.

6. The wife is restrained and an injunction granted restraining the wife from taking the children to any country other than Country D and the United States of America other than as may be required for transit purposes.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1153  of 2016

Ms Grant

Applicant

And

Mr Grant

Respondent

REASONS FOR JUDGMENT

introduction

1. The parties are the parents of B born in 2012 (“B”) and C born in 2016 (“C”), collectively (“the children”).

2. By Amended Initiating Application Ms Grant (“the wife”) seeks parenting orders that she have the sole parental responsibility for the children, that they spend time with Mr Grant (“the husband”) as may be determined by the Court and that there be orders for property settlement and periodic or lump sum spousal maintenance.

3. The wife also seeks leave to relocate with the infant children to her former home in the United States of America (“USA”).

4. By Response filed 30 May 2016, the husband seeks orders for shared parental responsibility for the children and that B live with the parties on a week about basis and that his time with C is the subject of graduated increase.

5. The husband also seeks orders for settlement of property and does not concede the wife’s entitlement to periodic lump sum maintenance and specifically opposes her application to relocate with the children to the USA.

6. On 22 November 2016 the parties entered into consent orders which provided for litigation funding in the sum of $50,000 to be paid to the wife’s solicitors and until 31 March 2017 the husband agreed to pay interim spousal maintenance in the sum of $7,250 per calendar month.

7. The parties were also able to resolve interim parenting arrangements in respect of the children in that the husband spends time with B on each alternate weekend on Saturday from 11 am to 6.30 pm and on Sunday from 11 am to 6.30 pm and in each intervening week on Thursday from 5 pm to 7 pm.

8. The husband spends time with C each Monday from 11 am to 12 pm, each Thursday from 4 pm to 5 pm and each alternate Saturday and Sunday from 10 am to 11 am.

9. The proceedings were transferred to the Family Court of Australia pursuant to the said order.

10. By order of a Registrar made 28 February 2017, the interim proceedings comprising parenting orders and spousal maintenance were adjourned for argument to 2 May 2017.

11. At the commencement of the hearing consent orders were made that provided for the continuation of the spousal maintenance payments to the wife pending a final hearing and the parties agreed to do all things as may be necessary to obtain a USA passport for C which would then be held by the wife’s solicitors in the same terms as they hold B’s passport.

12. The wife filed an Application in a Case on 27 April 2017 seeking leave to remove the children from the Commonwealth of Australia for a holiday between 17 December 2017 and 13 January 2018.  That application is opposed by the husband, but notwithstanding that it was not intended to be dealt with at the hearing, I determined that given the parties had resolved the wife’s application for interim spousal maintenance it was appropriate to hear and determine all outstanding matters being the interim parenting arrangements and the wife’s application to take the children on holiday to the USA.

PROPOSALS OF THE PARTIES

1. The husband proposes that the child B spend overnight time with him on a graduating basis being two overnights in each fortnight until 1 October 2017 and thereafter four overnight periods per fortnight.  Specifically, he proposes:-

   a)That until 1 October 2017;

   i)Each alternate week – overnight time each Monday until the following Tuesday at which time the father will collect the child at 3 pm and deliver the child to the School E Early Learning Centre (“ELC”) or deliver to the wife at 9 am.

   The husband seeks such time in order that it coincides with the time he spends with his daughter, F.

   ii)Each intervening week – time from 10 am Saturday to 6 pm Sunday.

   b)That from 1 October 2017 (which coincides with B’s fifth birthday):-

   i)Each alternate week – overnight time each Monday until the following Tuesday at which time the father will collect the child at 3 pm and deliver the child to the School E ELC or deliver to the wife at 9 am.

   ii)Each intervening week – from the conclusion of school or 3 pm on Friday until 9 am or the commencement of school on the following Monday.

2. At present C spends time with the husband on three occasions per week.  The husband seeks to reduce the frequency to two occasions, but to extend the duration of the time spent from 8 am to 11 am on each Monday and Friday in the alternate week and in the intervening week 9 am to 11 am each Monday and 8 am to 11 am each Friday.

3. The wife does not consider that there has been any significant change in the circumstances of the parties, but more relevantly; the children, that would warrant a change at this stage from the consent order made on 23 August 2016.

4. The husband was born in Adelaide in 1969.  The wife was born in Country D in 1980.  The parties commenced a relationship in 2010 and were married in 2011. 

5. The wife acknowledges that as at the date of the commencement of cohabitation she did not have any assets of value and accepts that the husband had considerable net worth.  On his estimate, approximately $8 million.

6. B was born in 2012.  The wife contends that she was the primary carer of the child and whilst he does not cavil with the wife’s position that she was the primary carer for B and now C, he does not accept that he was “not a significant contributor” to B’s care.

7. The parties separated in November 2014, reconciled briefly, but separated finally on 10 January 2016.

8. The wife alleges that he has some health issues which are exacerbated by alcohol abuse.  The husband disputes the wife’s allegation but has entered into an undertaking on 2 June 2016 in the following terms:-

   I undertake to the Court that: Without admission:-

   I will not consume alcohol for 12 hours prior or during any period of time that my daughter [B] is in my care.

9. It is not suggested by the wife that there have been further concerns in respect of the husband’s alcohol consumption during the time that the children spend with him since giving the undertaking.

10. A further concern of the wife is what she alleges is a propensity by the husband to walk around the house naked in the presence of B and his other daughter F.

11. Whilst she raises concerns that until F was aged 10 the husband often showered with F, she acknowledges that upon her objection the practice stopped and she makes no allegation that the husband has been physically inappropriate with B or F.

12. To a significant extent the current orders made by consent are predicated upon an acceptance by the wife that there is no aspect of the husband’s conduct which presents as a risk to the children.

13. The wife alleges that the husband commonly resorts to poor or offensive language in front of the children and is derogatory towards his ex-wife in the presence of the children and from time to time, F.  The husband contends that the wife’s allegations are a fabrication and his relationship with his former wife is civil and they have been able to negotiate and implement a parenting arrangement in respect of their two children.

14. Each of the parties allege that the other displays aggressive behaviour from time to time.  It is likely that any aggression displayed by each of the parties emanates from a high level of conflict that has developed following the breakdown of the relationship.  The wife is keen to relocate back to the USA whereas the husband views the wife’s motives as an attempt to disrupt and interfere with his relationship with the children.

15. Their current relationship is marred by mutual distrust.

LEGAL PRINCIPLES

1. I am required to make parenting orders that promote and facilitate the best interests of a child or children and in doing so must place substantial weight on the importance of maintaining a meaningful relationship with each parent.

2. The resolution of any allegation as to risk is always subservient to a determination of what is in the child’s best interests having regard to the primary and additional considerations as set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), but giving proper recognition to the interplay between s 60CC(2) and s 60CC(2A).

3. Unless satisfied on the balance of probabilities, the Court should be reluctant to make a finding as to the veracity of any allegation that may be made.

4. I am not obliged to consider each and every factor pursuant to s 60CC but rather, to consider those factors that are relevant to the determination of what would constitute the best interests of these children, as against the competing claims of the parties.

5. The issues between the parties are made more complex by the age of the children and in particular C.

6. The husband argues that in respect to B it is a natural progression that there should be overnight time and he reports that the child requests to spend more time with him.  The husband concedes that his time with C must of necessity be limited, but he considers that there would be advantages to the child in spending more time with him than the current order which provides for three periods in each week each for one hour duration.

7. The wife is not prepared to concede that overnight time should be introduced.  She is mistrustful of the husband and concerned that the child does not have sufficient emotional stability and resilience to cope separating from her.  She argues that the Court needs to look carefully at the individual functioning of each of the children and that whilst there remains a high level of conflict, B’s interests will not be well served by overnight time.

8. In respect of C, the wife continues to breastfeed the child and accordingly, time with the husband must be limited.  It is not her stated intention to seek any reduction in the husband’s time with C, but rather, holds the position that greater frequency but of lesser duration best suits the child at this age.

REPORT OF THE FAMILY CONSULTANT

1. An order was made on 11 October 2016 for the parties to attend an assessment of the parenting arrangements in respect of the children and for a family report to be provided.

2. The interviews were conducted in January and February 2017 and a report dated 24 February 2017 appears as annexure “A” to the affidavit of the wife’s solicitor filed 28 February 2017.

3. The structure of the report has been conducted “from a psychological perspective” and purports to take into account legislation and in particular, the additional and primary considerations pursuant to s 60CC of the Act.

4. Whilst the report is presented as a “expert opinion”, the family consultant notes that there are limitations to the opinion as expressed in that it is not considered to be a forensic assessment of allegations of child protection or criminal matters, that it is an opinion that is based upon information as provided and on the assumption that the parties are truthful and that it is a “snapshot” of a family’s circumstances at a particular point in time.

5. In interview the wife acknowledged the importance of a relationship between F and B and that they express affection towards the other.  The orders sought by the husband seek to coincide his time with B, in particular to times that F spends with him.

6. The observations of the family consultant of the parties with the children is expressed at page 6:-

   Both parents were gentle, affectionate and kind in their observed interactions with [the children].  During his session with the girls, [the husband] commented that [C] was hungry as she was crying, and with the writer’s subsequent encouragement took [C] to [the wife] in the car park to feed.  [C] remained unsettled and [the husband] again with encouragement, took her for a walk outside, subsequently reporting that [C] had fallen asleep immediately. 

7. The family consultant obtained feedback from B’s ELC.  The report was that she had a good relationship with the staff and was eager to please.  She had established friendships, but was observed to have difficulty to separating from her mother.

8. The Caregiver Teacher Report Form, the ELC responses and the DSM-Oriented Scales placed Bas having anxiety difficulties at a clinical range.  She was however functioning normally in respect of other scales.  On the empirically based scales her functioning was reported to be within the normal clinical range. 

9. When asked about her primary concerns, the wife said she could not trust the husband and believed that he would lie about his activities with the children.  Accordingly, until the children were at an age when they could self-report, she believed it was necessary for her to be protective of the children until they were older.

10. Whilst the husband considered that the wife was “over protective” in her parenting, he did not raise any particular concerns about the wife’s ability to care for the children other than his view that she was not prepared to promote or support their relationship with him.

11. The family consultant recorded the views of the parties in respect of the conflict in their relationship and the presence of family violence.  The wife considered that the husband had been abusive, particularly in relation to his view that she was motivated by a property settlement.  The husband denied that he made such an assertion.

12. The family consultant viewed the Child Dispute Conference Memorandum to the Court as depicting B having been exposed to a high level of conflict.

13. Whilst the report could only have been directed to interim issues given that shortly after the order was made the proceedings were transferred to the Family Court, the family consultant presumably was asked to consider the effect on the children, but in particular C, if the wife was to relocate the children to the USA.  The family consultant considered that it would be potentially harmful from a “psychological perspective” for the children to be permitted to relocate at this stage on the basis that a relationship between C and the parties had not yet developed to a point where it could be maintained by non-personal communication.

14. The observations of each of the parties with the children were entirely favourable.  The family consultant considered that what was required at this stage was stability and consistency of care and in relation to C, there was some support for an extension of time namely, an increase to two hours and then possibly three hours, but to accommodate the wife’s breastfeeding routine.

15. The family consultant had little doubt that B could manage an introduction to overnight time, but she considered that without there being an improvement in the co-parenting arrangements, there may be attendant risks to the child.  The basis of the family consultant’s concern is the possibility that each of the parties would not be able to regulate their behaviour and conduct in respect of the other party in the presence of the child and that placing the child “at risk of influential questioning by either or both parties” must be seen against the context of significant conflict.

16. It is suggested that the parties attend appropriate parenting courses and that they engage in co-parenting counselling sessions.  It appeared important to the family consultant that the person engaged for co-parenting counselling be experienced and skilful because of the family consultant’s considerations of an imbalance between the parties arising out of the perceived wealth of the husband and the lack of income and asset-base of the wife.  It is also relevant that the wife has no family support in Australia and only at best a modest social support network. 

17. It is not clear to me what investigation the family consultant undertook in relation to the perceived financial imbalance.  It may be that she was not made aware of the provision of funds both by way of litigation funding and ongoing spousal maintenance.

18. The family consultant also did not consider the disadvantage to B in particular of an increase to overnight time in circumstances where the allegation of conflict is viewed differently by each of them.  It is clear that the parties experienced unhappy differences whilst together and it may well be that mistrust continues to exist, particularly in circumstances where the wife seeks to relocate with the children at an age where the husband does not consider that his relationship with C has been appropriate formed.

1. Ultimately I am obliged to make orders that I consider are in the best interests of the children and in determining that outcome I am assisted by the comments of the family consultant.

2. In considering the evidence given by a family consultant and in particular the weight that should be attributed to that evidence, I have regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to recommendations of a family consultant:-

   [72]It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight.  Departure from an expert report in such circumstance requires careful consideration by a trial Judge.  However, the ultimate decision still must be that of the trial Judge.  The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 …

3. Whilst a family report is of assistance and will carry weight, in the circumstances of this case I consider that it is to the benefit of B that she commence overnight time with the husband.

4. The significant consideration is to make orders that will foster and promote a meaningful relationship between the children and the father.  B will be five years of age in October 2017 and there is no suggestion by the parties or the family consultant that the child is not psychologically or emotionally ready to spend overnight time with the husband.

5. It is not suggested that there is some indicator that would assist in understanding when the conflict between the parties (if it exists) would reach what might be described as an acceptable level.

6. The parties appear to relate tolerably well with each other.  Whilst there is a dispute as to the extent to which the husband was involved in B’s ELC, it is the wife’s position that there is no impediment and that the husband has free and unfetted access to the child’s teachers and those that assist her.

7. The husband currently enjoys unsupervised time.  It is difficult to comprehend what difference there is in this case to the child spending substantial unsupervised time during the day with the husband, but that in some way overnight time is not supported.

8. If the concern is of further denigration by each of the parties towards the other in the presence of B then that can most certainly occur within the confines of the current arrangement where the children are in the wife’s primary care.

9. There is also a level of artificiality in respect of the current arrangements which see the child spending Saturday and Sunday with the husband but not overnight.

10. A further difficulty is the extent of transitions between the children and each of the parties.

11. In circumstances where it is not suggested that the child would not be able to emotionally cope with overnight time, the distinction is one of duration rather than between overnight time and time spent during the day.

12. It must also be remembered that the husband seeks to ensure that his daughter F is present in his home when he spends time with B.

13. Accordingly, I propose to order that B spends time with the husband each alternate weekend from 10 am Saturday to 6 pm Sunday and in the intervening Monday from the conclusion of ELC to the commencement on the following morning commencing 22 May 2017.

14. I do not consider it appropriate to significantly extend the time that the husband seeks to spend with C to three hours on each occasion.  The family consultant considers that two hours can be appropriately accommodated and on that basis, the time that he spends with the child is likely to be more meaningful in terms of the different activities that he can engage in.

15. I propose to order that C spend time with the husband on each Monday and Friday from 9 am to 11 am.

16. Whilst the parties have had a dispute as to handover, they have reached agreement that it will occur in the lobby of the wife’s apartment block.

OVERSEAS HOLIDAY

1. By her Application filed 27 April 2017, the wife seeks leave to remove the children of the marriage from the Commonwealth of Australia between 17 December 2017 and 13 January 2018 for the purposes of a holiday.  The husband opposes the wife’s application.

2. The purpose of the proposed trip is to spend time with the wife’s family in City G and City H and with her father in Country D.

3. The parties have agreed that both children should hold USA passports.

4. The wife proposes that if the husband is in City H in January 2018 then the children can spend time with him.  The husband has not considered his intention to be in City H as suggested by the wife.

5. Both the USA and Country D are signatories to the Hague Convention.  In determining whether to allow the wife to remove the children from the Commonwealth of Australia, I should have regard to the following factors:-

   (1)The degree of risk that the departing parent will not return.

   (2)Whether the country of travel is a signatory to the Hague Convention on child abduction and the likelihood of deviation to a non-Convention country.

   (3)The financial circumstances of both parties.

   (4)The extent of any security that should be required to realistically entice a person removing the children to return and to adequately assist the party remaining in Australia to take action for the return of the children.

6. The husband has significant financial resources.  It could not be said that any security bond would be required in order to assist him in pursuing the wife should she not return.  Accordingly, a security bond would not be required for the purposes of enticing the wife to return the children.

7. The wife has made an application for property settlement.  Whilst the orders have not been particularised, the matter in which the proceedings have been conducted and the extent of the litigation funding as required suggests that her claim will be significant.  Clearly that would be put at risk if she fails to return to the jurisdiction.

8. The wife has property of modest value in City H and her mother resides in that property.

9. It seems to me that there is no good purpose served in seeking security be given by the wife.

10. There is no evidence that suggests the wife has any connection with any other country other than Country D and the USA.  Whilst her father resides in Country D, the primary focus of the wife is her family in City H and City G.  I consider the risk of the wife removing the children to a non-Hague Convention country to be remote.

11. The wife should be permitted to remove the children from the Commonwealth of Australia for the purposes of a proposed holiday to Country D and the USA. 

12. The wife proposes the holiday to be for one month duration. It is also to occur over the Christmas period. The wife’s application must be considered pursuant to s 60CC of the Act. A meaningful relationship is important and particularly so in respect of C given her age.

13. The husband asserts that he was not able to spend time with the children over Christmas in 2016 and the wife’s proposal would see a repeat of that in 2017.

14. The wife has not made any travel plans as yet and accordingly her arrangements are flexible.

15. Whilst I think it reasonable that the wife be permitted to remove the children from the jurisdiction, subject to any agreement between the parties, the period of absence should be restricted to 21 days as striking a reasonable balance between the benefits that will inure to the children in spending time with the wife’s family, but to reduce the impact of the children’s separation from the husband.

16. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 May 2017.

Associate:  P. M Malone

Date:  9 May 2017