Green and Green

[2018] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREEN & GREEN [2018] FCCA 2214

Catchwords:
FAMILY LAW – Interim parenting – mother unilaterally changed children’s school and moved suburbs – whether or not children should return to their former school – parenting arrangements.

Legislation:

Family Law Act 1975 s.65DAA

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Morgan v Miles (2008) Fam LR 275
U & U (2002) 211 CLR 238
Goode & Goode (2006) FLC 93-286

Applicant: MR GREEN

Respondent: MS GREEN

File Number: MLC 8320 of 2018

Judgment of: Judge Harland

Hearing date: 10 August 2018

Date of Last Submission: 10 August 2018

Delivered at: Melbourne

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Trim

Solicitors for the Applicant: Schembri & Co Lawyers

Counsel for the Respondent: Mr Mort

Solicitors for the Respondent: Berger Kordos Lawyers

ORDERS

1. The proceeding is adjourned for Mention Hearing on 15 August 2018 at 9.00am. 

2. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

   The parents have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2009 (“the children”).

3. The parents forthwith do all acts and things to re-enrol the children at School A, and to cancel the children’s enrolment at School B.

In the event the mother returns to Suburb D:

1. The children live with the mother and the father on an equal week about basis pending further order.

2. If the mother wishes to live in the former matrimonial home at Property A, (“the former matrimonial home”) she have sole occupation of that property.

In the event the mother does not return to Suburb D:

1. The children live with the father.

2. The children spend time with the mother on alternate weeks from after school on Thursdays until before school on Monday.

THE COURT ORDERS, BY CONSENT, THAT:

1. The children spend half of all school holidays with each parent as agreed in writing and failing this on a week about agreement.

2. If the children are in the care of the father on the following occasions, the children spend time with the mother as follows:

   (a)On Mother’s Day from 6:00pm the day before Mother’s Day to the commencement of school the day after Mother’s Day;

   (b)On the children’s birthday as agreed between the parties, and failing agreement for a period of 3 hours on a school day and for a period of 4 hours on a non-school day;

   (c)On the mother’s birthday as agreed between the parties, and failing agreement from 4:00pm until 7:00pm on a school day and from 10:00am until 2:00pm on a non-school day;

   (d)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in even numbered years commencing in 2018;

   (e)From 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years commencing in 2019; and

   (f)On other such special occasions as agreed between the parties in writing.

3. If the children are in the care of the mother on the following occasions, the children spend time with the father as follows:

   (a)On Father’s Day from 6:00pm the day before Father’s Day to the commencement of school the day after Father’s Day;

   (b)On the children’s birthday as agreed between the parties, and failing agreement for a period of 3 hours on a school day and for a period of 4 hours on a non-school day;

   (c)On the father’s birthday as agreed between the parties, and failing agreement from 4:00pm until 7:00pm on a school day and from 10:00am until 2:00pm on a non-school day;

   (d)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in odd numbered years commencing in 2019;

   (e)From 3:00pm on Christmas Day until 3:00pm on Boxing Day in even numbered years commencing in 2018; and

   (f)Such other special occasions as agreed between the parties in writing.

4. Each parent is to have reasonable telephone time with the children during the times that the children are in the care of the other parent between the hours of 6:30pm and 7:00pm, or at such other times as the parties may agree.

5. Each party keep the other party informed, by way of text message, of any accident or injury to a child or the children while in their respective care, advising the nature of the injury and providing the name and contact details of any medical practitioner attending upon the child/children.

6. Each party forthwith enrol in and complete a post-separation parenting course.

7. Each parent engage in counselling regarding their personal issues.

8. The father file an amended initiating application joining property issues, affidavit, and financial statement on or before 7 September 2018.

9. The mother file a response, affidavit and financial statement on or before 5 October 2018.

AND THE COURT NOTES THAT:

A.If the father’s work commitments mean that he is physically unable to care for the children during their scheduled time with him, he shall be permitted to rely upon his mother for assistance in this regard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8320 of 2018

MR GREEN

Applicant

And

MS GREEN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The father filed an urgent application on 23 July 2018 seeking orders requiring the parties to do all acts and things to re-enrol the children at School A and thereafter that the children live with each parent on a week about basis.  The mother opposes that application.  She seeks that the children remain at School B and that the children live primarily with her and spend alternate weekends with the father. 

3. Both parents seek that the parties exercise equal shared parental responsibility on both an interim and final basis.  The father is 41 years old and the mother is 33.  They married on 2005 and they have two children:  [X], aged 8, who is in Year 3 and [Y], aged 7, who is in Year 1. 

4. There are several factual issues in dispute between the parties in this matter which the Court is unable to determine on an interim basis and, with this respect, I will refer to the Full Court’s decision of Redmond & Redmond [2014] FamCAFC 155. The Court cannot determine issues of contested fact in an interim hearing, nor can it ignore allegations that parties make. Examples of the issues in dispute between the parties include when the parties separated, the level of the father’s involvement in caring for the children and his interest or otherwise in decision-making for the children with respect to school, allegations the mother makes about the father being domineering and controlling, and allegations of family violence.

5. What is clear from the material is that the mother has been unhappy in the relationship for some time and that she is the one who wanted to separate whilst the father did not.  The parties give different dates for the separation, including different dates in their own material which reflects the fact that, like in many cases, the process of separation between the parties is not something that has happened in a clean matter over a single day. 

6. For part of the time since they separated, the parties have lived under the one roof and what is very clear is that they had different perceptions about the status of their relationship during this time. This is not uncommon and it is also not uncommon for parties who are going through the process of separation to be in very different emotional states with respect to these issues.  It is an incredibly distressing and stressful time for both parties. 

7. The father says in his affidavit that they separated on or about 1 July 2018.  That is clearly not correct.  The mother says they separated under the one roof on 10 January 2018 and then says they separated on a final basis in around February 2018. She says it was then that she decided that there was no prospect of them reconciling and it was around that time that the father stopped paying his income into the joint account and they started sharing their expenses. 

8. What is apparent from the evidence is that the parties told the children together that they were separating.  There was some dispute between the parties exactly what they told the children this but certainly at that time it was the father’s understanding, based on the mother’s own indications, that the children would remain attending School A until at least until the end of the year. 

9. Exhibit A is a series of text messages that the mother relies on in support of her case. In these messages there are discussions about her desire to move to Suburb E, where she says she has family support, and certainly point to the fact that the father was aware of this desire.   However that does not take away from her own evidence with respect to discussions that took place after that date where she indicated she would stay in Suburb D for six months so the children could stay at their school until the end of the year. What is clear, and the mother does not deny this, is that she unilaterally changed the children’s school without informing the father and it was that action that caused the father to commence the urgent proceedings.

10. The parties and children were seen by a family consultant who gave evidence in Court on Tuesday of this week.  The matter came before me again today with some further material filed.  I am not going to go into the issues with respect to the filing of affidavits addressed in the course of discussions with counsel during submissions today and made earlier in the week, and I am mindful that I have several interim hearings to deal with today.  The benefit of the matter having been adjourned to today is it has enabled me to consider carefully the material that the parties have filed when weighing up what is a clearly difficult situation.

11. The children have attended school in Suburb D since they started school, as I noted before [X] is in year 3 and [Y] is in year 1,  and the parties have lived in the Suburb D area for some years.  The paternal grandmother lives close by and both parties acknowledge that she has provided them with practical support in taking the children to and from school when the parents have been unable to do so.  It is also not disputed that the children have a close and loving relationship with her. 

12. It is the mother’s case that her relationship with the paternal grandmother has now broken down given the separation and the issues that she has raised in her affidavit.  The paternal grandmother says that she remains available to assist both parties.  It is understandable that the mother would be reluctant to seek her assistance given the recency of the events and the bitterness that has clearly ensued given the impact of the unilateral change of the children’s school, and that is something that the family consultant refers to as well. 

13. The mother characterises her move to Suburb E as a relocation.  She says it is 41 kilometres from Suburb D and the mother works full time in Suburb F, and, certainly, on both parents’ cases, that causes logistical difficulties, particularly with respect to getting the children to and from School A in peak hour traffic.  In her affidavit, the mother says that she needed to move because of the father’s controlling influence on her, that she had become increasingly fearful of him, and that she had not realised how stressed she had been until she moved.

14. The mother says she has been subjected to family violence and gives examples including referring to the father keeping her under surveillance and hacking her email account.  The father denies this.  The father did say that he had been keeping a record of what time the mother returned from home from work for about six months which certainly would be of some concern for the mother.  The father says that the mother was returning home from work later and not spending time with the family. 

15. The mother says that the father was historically sexually abusive, forcing her to undress and take photos of her without her consent.  She does not refer to dates or the number of occasions that this was alleged to have occurred. The father denies this.  She also refers to, after they separated under the one roof and were in separate bedrooms, that the father would walk in on her without knocking when she was in the shower and undressed.   She says this happened on several occasions and that the father laughed at her when she expressed her concern saying he had seen it all before. The father says he walked in on her once and apologised. 

16. The mother also relies on the affidavit of Ms K who was a friend of both parties and a particular friend of the mother’s.  There are various contentious issues in her affidavit.  She supports the mother’s move to Suburb E and also refers to an incident when she was celebrating her birthday. What happened at that incident is another area of dispute between the parties, with the parties giving diametrically opposed versions of events. 

17. The father is self-employed working in the (employment omitted) industry.  When he has work projects, his work hours can be such that he is working from the early hours in the morning to late at night, essentially working throughout the children’s waking hours.  There are periods in between projects where he is not working.  It certainly seems that there is an unpredictability to his work and the nature of the projects and the length of those projects. 

18. The mother says that until December 2017 she operated a small business which gave her flexible hours to enable her to work around the children’s needs, that from December 2017 she has been working full time at (employer omitted) in Suburb F.  There is a dispute between the parties as to how she came to be working for (employer omitted).  The mother says that the father pressured her into obtaining full time employment. The father denies this and says that (employer omitted) is where the maternal mother was working as well. 

19. This is another issue of an example of an issue that I cannot determine on an interim basis but what is clear, certainly with respect to the parties’ current working arrangements, is that both parties need to rely on either before and after school care and also other assistance.  In the father’s case in particular, he would need to rely on the assistance of his mother given the hours that he works and the unpredictability of the nature of that work.  The mother is in quite a different situation where she works full time but regular hours from  9:00pm to 5:00pm.

20. The father has moved into his mother’s home which is near the former matrimonial home.  It is a four bedroom house and the children have their own rooms.  The mother says that when they were in the process of separating the father refused to move out of the home and did move out for a couple of weeks but then moved back in and that is why she looked for rental accommodation, initially finding rental accommodation in the same housing estate and then deciding to move to Melbourne. 

21. The former matrimonial home is currently vacant.  The mother has moved into rental accommodation being a two bedroom apartment with the children sharing a room in Suburb E where her mother is living.  The mother has been very clear through her counsel that she will not return to Suburb D.  The mother says that she felt isolated in Suburb D with no supports there.  The father says that she does have friends there, certainly Ms K is clearly a close friend of hers and has put herself in a difficult position. I do not mean that critically but where clearly she has been friends with both parties and the paternal grandmother so putting on an affidavit in support of the mother is a difficult matter for her. It is also indicative of at least one support that the mother has. 

22. The father’s primary proposal is that the mother returns to Suburb D, either living in the former matrimonial home or in another property reasonably proximate to the children’s former school.  If the mother does not wish to live in the former matrimonial home, the father says that the parties could draw down on the mortgage in order to give the mother funds to assist her to move back to the Suburb D area. 

23. The parties have not addressed the property issues in their Court documents given the urgency that the matter has been filed but I will make directions for a timetable for the filing to enable the parties to join the property issues to the proceedings.  The mother says that the children are happy and settled in their new school.  She says that the children are settled and happy where they are living and they have noticed the difference in her. 

24. The children have only been going to that school since 16 July 2018.  That is not sufficient time for children to become settled in a new routine and I am yet to see an affidavit where a parent has made a unilateral change of school where they have not said that the children are settled in and happy.  It is somewhat concerning that both girls told the family consultant that their old school was bad and that the school could not even keep a calendar.  The family consultant observed that the girls’ reference to the school calendar was likely to come from the mother speaking about a wrong date. 

25. The consultant described [X] as nervous and using a babyish voice and that she told the family consultant that they were there to see her to tell her that they like their new school.  She also told the family consultant that she misses her old school friends.  Both girls told the family consultant that their parents separated because they were “fighting too much”. 

26. The family consultant records that [Y] was talkative and cheerful and that her mother had not told her that the school was a rubbish school but that it was not a good school and then wistfully referred to liking her old school.  Both children spoke about the activities that they engaged in with their father on the weekends at the paternal grandmother’s home and referred to the trampoline she has there and the cat.  The family consultant refers to [Y] struggling to say anything about the maternal grandmother. 

27. Certainly, what is apparent is that the children have not had as much engagement and involvement with the maternal grandmother.  Certainly, there is nothing to suggest that they are doing anything other than developing a positive relationship with her.  One of the criticisms in the mother’s affidavit of the father is a reference to his refusal to attend their new school and meet with the principal.  That is unfair given her unilateral actions.  The family consultant expressed some concern about how the mother was able to change the children’s school without the School A knowing about it. 

28. Really, the primary point is that it is a decision that mother made without the father’s input and knowing that the father would not have agreed. In circumstances where both parties are seeking that they continue to exercise parental responsibility, it simply should not have occurred.  It is not surprising, in those circumstances, that the family consultant describes the parties’ current communication as strained and bitter. Certainly, the mother’s unilateral actions would have compounded the parties’ difficulty in communication. 

29. The family consultant has stated that the children living primarily with their father was not an option because of his long working hours.  She referred to the close relationship that the children have with their paternal grandmother, but also said that it would not be in the children’s best interests for the paternal grandmother to take on the primary parenting role when they have a capable parent who has primarily cared for them in the past, being the mother.  She also went on to say that if the parents lived in close proximity, she would have no hesitation in recommending a shared care arrangement.  She explicitly said that the issue as to whether or not the children should return to their former school is a matter for the Court. 

1. Relocation is not defined under the Family Law Act 1975 (Cth) and simply referring to geographical distance is somewhat artificial. There certainly could be some debate as to whether or not this case would fall into the category of relocation in cases but I will refer to decisions with respect to unilateral relocations as that is the way the case has been characterised by the mother in her material. It certainly is the case of both parties that there are some real difficulties in terms of the travel for the children to go to the School A if they were to live primarily with the mother in Melbourne.

2. The Full Court has made it very clear in several cases that the Court should not condone unilateral relocations.  Nevertheless, any decision that the Court makes with respect to children either on an interim or a final basis must focus on the children’s best interests which are paramount, and that is regardless of the conduct of a parent.  Relocation applications are matters that properly should be determined at a final hearing when the evidence can be tested and properly considered and not in a truncated interim hearing where there is little independent evidence available to the Court and an inability to test the parties’ evidence. 

3. Particularly in cases of recent separation, I have real concerns with respect to making orders that would significantly alter the children’s relationship with a parent and their living arrangements and stability.  The fact that that can have long-term impacts in circumstances where the evidence is untested and the action was taken by one parent alone, relocations have implications for the quality and intimacy of parental relationships where they are not able to spend substantial and significant time with children.

4. The comments of Boland J in Morgan v Miles (2008) Fam LR 275 remain relevant today where she said that the Court should be reticent to determine issues of relocation at an interim stage:

   It is highly desirable that, except in cases of emergency, the arrangements which would be in a child’s best interests should not be determined at an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me that the comments of Warnick J in C & S remain apt and relevant to the determination of these cases. 

1. I also refer to the comments of Gummow and Callinan JJ in U & U (2002) 211 CLR 238 where they observed:

   Maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred. 

2. The Full Court decision of Goode & Goode (2006) FLC 93-286 sets out the legislative pathway the Court must follow when considering interim parenting matters and I will only refer to the sections of particular relevance to the facts in this case. I will deal with the additional factors first. The children have not expressed any views to the family consultant about what their preferences are. Given their young age and the recency of the events, it is perhaps not surprising and it is not a factor in this case at this stage. What is clear is that the children have a close and loving relationship with both their parents.

3. The brief observations that the family consultant made of the children with both their parents were positive indicating the children were comfortable with both and there are no allegations that the children are unsafe in the father’s care.  The children also have a close relationship with their paternal grandmother.  There are no family violence orders in place and there are no family violence proceedings with respect to intervention orders on foot.  As I have indicated previously, the mother makes allegations about family violence which I cannot determine at an interim stage.

4. What I do find is that the allegations that she raises are not at such a level that I am satisfied that she could not be safe living in close proximity to the father. If the mother elects to return to Suburb D and return to the former matrimonial home, a sole occupation order would give her a measure of protection ensuring the father did not return to the home.  The mother’s proposal involves a significant change of circumstances for the children that must be unsettling for them, particularly having regard that the separation of the parents themselves over the past few months would also be unsettling for the children. 

5. The children clearly have a meaningful relationship with both their parents and I do not find that the allegations that the mother makes as such that the presumption with respect to equal shared parental responsibility should be rebutted. Making an order for equal shared parental responsibility then triggers the considerations of s.65DAA of the Family Law Act and whether or not it is in the children’s best interests for them to live in an equal time arrangement with their parents or a substantial and significant shared arrangement. 

6. I find that it is in the children’s best interests for them to be re-enrolled at School A forthwith.  Particularly when parents are going through separation, the children’s school is where they are in a familiar environment with their friends, away from both their parents, gives them an important sense of security and a source of support.  The issue of which school the children should attend in the future and whether that be in Suburb D, Melbourne or somewhere else is an issue that should properly be determined when there is further and better evidence before the Court.

7. In my view, the optimal outcome for these children would be for the mother to return to the Suburb D area so that the children could live in a substantially shared care arrangement.  The Court is often not in a position to make orders that are optimal for children.  The Court has to weigh the various competing factors and make the orders that it considers, on balance, serve the children’s best interests. 

8. Whilst the mother refers to the family consultant’s comments with respect to the father not being a viable primary resident parent, I do not accept the submission that that leaves the Court with no option but to allow the mother to remain living in Melbourne and change the children’s school.  Indeed, as I have indicated before, there was no suggestion that the children are at risk in the father’s care.  The fact that the father lives with his mother and his mother is available to assist means that the children will be cared for in the event the mother elects not to return. 

9. Clearly, that is not a palatable solution for the mother, or the Court, but ultimately that is going to be a matter for the mother. She has a choice to make about whether she remains in Suburb E or returns to the Suburb D area. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 13 August 2018