Gregg and Gregg

[2016] FamCA 378

FAMILY COURT OF AUSTRALIA

GREGG & GREGG [2016] FamCA 378

FAMILY LAW – CHILDREN – interim orders – where the mother has moved the children interstate – where consideration is given to the best interests of the children – where there is a psychologist report in relation to the mother – where the Court finds if the mother was ordered to return to South Australia there would be a risk to the mother’s wellbeing – where the Court orders holiday time in favour of the father.

Family Law Act 1975 (Cth) s 60CC, 65DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Gregg

RESPONDENT: Ms Gregg

FILE NUMBER: ADC 139 of 2016

DATE DELIVERED: 18 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horvat

SOLICITOR FOR THE APPLICANT: Moloney & Partners

COUNSEL FOR THE RESPONDENT: Mrs Read

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy Solicitor

Orders

UPON NOTING the Court considers that it would benefit the children if both of the parties were to take steps to attend a programme in relation to parenting such as Kids-Are-First programme.
«FCA_LD221»

IT IS ORDERED THAT

1. Pending final orders being made paragraphs 1 and 2 of the orders made on 15 February 2016 are continued.

2. The father spend time with the children B born in 2010 and C born in 2011 (“the children”) with the mother to communicate with the father at least twenty-one [21] days before the children’s anticipated travel to advise him of the proposed travel arrangements to ensure that the children arrive in Adelaide and spend time with the father by the mother delivering the children to the father at the Adelaide Airport and the mother collecting the children from the father at the Adelaide Airport on the basis that the children spend time with the father from:

   2.1    Saturday 25 June 2016 to Monday 18 July 2016;

   2.2    Monday 19 September 2016 to Friday 30 September 2016;  and

   2.3    Monday 12 December 2016 to Monday 16 January 2017.

   such costs of airfares for the children to be shared equally between the parties.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 139 of 2016

Mr Gregg

Applicant

And

Ms Gregg

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application to consider the interim orders that should be made in relation to the two young infant children of the parties, B born in 2010, therefore now aged six and C born in 2011 now aged four (“the children”)

2. The proceedings commenced by the father bringing an application in January 2016 seeking final and interim orders to which the mother has responded seeking final and interim orders. 

3. The significant factor that needs to be determined today on an interim basis is whether the mother should be ordered to bring the children back to South Australia either to the D Town area or to the Adelaide area, she having left and taken the children in early January this year taking them to E Town in Queensland.

4. The Court has received, albeit only 17 documents on the Court file at the moment, a large amount of material from both of the parties and in relation to the allegations concerning what transpired when they were in a relationship together and the situation since the separation took place earlier this year. 

5. The Court is obliged, even on an interim basis, through the authority of Goode & Goode (2006) FLC 93-286 to consider what is in the best interest of the children taking into account the factors under section 65DA and the material set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).

6. I emphasise that it is not the rights of the parties or determining who has behaved towards the other person in a way that would result in assault or mental health issues but the best interests of the children.  At this stage that is quite difficult considering the different allegations made by each of the parties.

7. The fact that the parties entered into a “polygamous” relationship (as they have described it) with another woman in their lives for a short period in 2014 and the ongoing interrelationship between the mother, the father and that woman is a matter which will have to be, if necessary, determined at the final hearing of the trial.  I say if necessary because as I have already pointed out in the hearing of this matter it is not the Court’s role to attribute blame or moral blame on either of the parties in proceedings in relation to the children. 

8. It is a question of the Court attempting to determine what is in the best interests of the children when the parents are unable to determine that themselves and require a judge of the Court to hear the evidence and make determinations after hearing and testing the relevant evidence to what is in the best interests of the children.  I am told that the relevance of the behaviour of the parties concerning their relationship is to be considered because of the impact that it has had upon the mother and that that impact has brought about her decision to leave and travel a considerable distance from the home of the father and the previous home of the children in order to assist her in what she describes as recovering from her post-traumatic stress disorder.

9. The difficulty, as I have already emphasised in this matter, is that there is significant dispute as to the background to the mother’s allegations concerning her post-traumatic stress disorder. 

10. What I do have before me today are the reports of Ms F and Ms G in relation to the mental health of the mother and the report of Ms N in relation to development and health of the child, B.  I need to stress that the children in this case are of a young age and therefore it is a significant issue that they are now some distance from the father with whom they had a relationship until the mother took the unilateral steps in January of this year to move to E Town.

11. The significant factors, however, that I have to bear in mind are the primary factors under s 60CC, namely, the benefit to the children of having a meaningfully relationship with each of their parents and the need to protect the children from harm whether that is physical, psychological or mental harm. 

12. The difficulty in this case is also bringing into account the other significant factors which are the attitude to the parties and their role as parents and the capacity to provide for the appropriate care of the children.  Of course the other factors in s 60CC are considered but these are significant factors in determining these matters on an interim basis.

13. The psychologist’s report from Ms G is annexed to the affidavit of the mother’s solicitors filed on 13 May 2016.  In that report the psychologist refers to the treatment and assessment she has had with the mother.  It is obviously an assessment based upon information provided by the mother which remains to be tested as to its truth.  However, at the moment the progress in that report refers to the mother improved general coping, increased confidence and improved general wellbeing.  I take into account all of the report of Ms G as to the psychological health of the mother and the stress which is caused not only by the past events which she says occurred in the relationship but also by the increased distress in relation to the current legal proceedings.

14. The latter factor, of course, is not a basis upon which the Court would refuse to make an order that the children be returned to an area closer to their father.  What is significant, however, is that the psychologist reports that the presentation of the mother and:

    The reported level of control by her husband and the impact of this upon her wellbeing, [Ms Gregg’s] progress and wellbeing may be compromised by her returning to live in close proximity to her husband at this time.

15. It then continues to say that:

    She has improved her coping and resilience since commencing treatment and it is anticipated that she would benefit from ongoing support and the consolidation of the above strategies to assist with her current life adjustments and presenting symptomology.

16. That of course is treatment which could no doubt be also provided to the mother were she ordered to return to South Australia, however on the basis of this being only an interim hearing and my inability to determine whether the facts alleged by the father are correct or whether the facts alleged by the mother are correct the concern must be what is in the best interests of the children.  On an interim basis I consider that the risk to the mother’s wellbeing being compromised if she were ordered to return to live in close proximity to the husband is a significant fact.

17. It is also a significant factor that the mother currently has the support of family and friends in E Town and that the report in relation to B’s development supports that ongoing arrangement.  I therefore refuse to make the orders sought by the father that the mother return on an interim basis to live in South Australia but intend to make orders which include that the mother provide the father with time with the children by delivering them to the father at the Adelaide airport during the school holidays as proposed by the mother. 

18. The mother’s proposal was that she pays half the children’s airfares.  The Court has limited information in relation to their financial matters at the current time.  Both are employed.  The father has employment and owns real estate.  The mother has employment as a lawyer.  I therefore consider that it would be in the best interests of the children that the mother pays for her own airfares and for half of the children’s airfares and that the father pays for the other half of the children’s airfares.  There are already orders in existence for the father to be able to communicate with the children by telephone and Skype.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 May 2016.

Associate: 

Date:  23 May 2016