HAGARTY & BEVAN

[2014] FamCA 1035

FAMILY COURT OF AUSTRALIA

HAGARTY & BEVAN [2014] FamCA 1035

FAMILY LAW – CHILDREN – Interlocutory applications – where final parenting orders had been made with the consent of the parties in 2013 – where the mother sought to relocate with the child – where the mother also sought to enrol the child in kindergarten in 2015 – where the father opposed both applications and instead sought to restrain the mother from taking such action – where there is not enough evidence before the Court to make such orders on an interim basis – where the disruption to the child of a possible potential second move following the final hearing, is the overwhelming consideration – both applications dismissed – where the mother is restrained from moving away from the Newcastle area and from enrolling the child at school pending further order

APPLICANT: Ms Hagarty

RESPONDENT:	Mr Bevan
FILE NUMBER:	(P)NCC	220	of		2013

DATE DELIVERED: 14 November 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 4 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Braye Cragg Solicitors

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Kilpatrick Hatton

Orders pending further order

1. That each party is restrained from enrolling the child X born … 2010 at school without the prior written consent of the other party.

2. That the mother is restrained from changing the place of residence of the child away from the Newcastle area.

IT IS FURTHER ORDERED:

1. Pursuant to Section 68L of the Family Law Act 1975 (Cth) THAT an Independent Children’s Lawyer be appointed to represent the interests of the child and to facilitate such appointment the parties do forward all relevant documents to Legal Aid NSW.

2. That each of the parties do all such things as may be necessary to facilitate the child’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

3. That the Interim Application of the mother contained in the Initiating Application filed 10 September 2014 is dismissed.

4. That the Interim Response of the father contained in the Response filed

   
   

   13 October 2014 is dismissed.

THE COURT NOTES:

1. The Family Consultant has recommended that a copy of her Memorandum dated 17 October 2014 be provided to the Secretary, Department of Family and Community Services and the parties should consider their respective positions prior to the next occasion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hagarty & Bevan 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 NEWCASTLE

FILE NUMBER:  (P)NCC 220 of 2013

Ms Hagarty

Applicant

And

Mr Bevan

Respondent

REASONS FOR JUDGMENT

1. These are competing applications in relation to interim parenting orders for one child, X (“the child”), born in 2010.  The child is now four years and eight months old. 

2. The applicant is the mother, Ms Hagarty, aged 39.  The mother lives in Town M. By order 4 of her application, she applies for leave to establish a residence for the child in Sydney and to enrol her at school in Sydney, commencing in 2015. 

3. The respondent is the father, Mr Bevan, who will be 40 next month.  He is opposed to the change of residence.  The father lives in Town N, south of Newcastle.  The father is also opposed to the child starting school in 2015 at all, but certainly not in Sydney.  The application came before me in a duty list. 

4. Both parties sought discharge of orders 18 to 52 or 53 inclusive of the final Orders made by consent of the parties on 13 February 2013.  Those orders were both financial and parenting.  There were 53 separate orders, eight notations and one property schedule.  The orders were extremely detailed in respect of parenting. 

5. The applicant seeks to discharge all but one of the parenting orders, and that order is not presently controversial, relating as it does to the baptism of the child.  In place of those orders, the mother seeks orders as follows:  relocation in time for the school year in 2015, residence with the mother, time with the father on alternate weekends from 6 pm Friday until 3 or 4 pm on Sunday. 

6. During the course of submissions, the position of the mother was clarified to be that, irrespective of whether or not she was able to establish a new residence for the child, that period of time was her position.  The mother also sought changeovers at Town O Train Station and various other less controversial matters.  On 14 October 2014, the mother filed a Notice of Child Abuse, alleging that the child:

…has been exposed to domestic violence of a verbal, emotional and psychological nature in the presence of the father … [and] has been exposed to verbal, emotional and psychological abuse at the hands of [Mr D], born [in] 1976. 

1. There was also allegation made by the mother that there was an ongoing risk of abuse.  The paragraphs of the mother’s affidavit were identified as containing her evidence of those allegations of risk and abuse.  That affidavit was filed on 10 September 2014 and not the 24^th, as asserted.  The allegations of exposure to domestic violence and abuse and risk of abuse I will deal with now. 

2. The paragraphs identified by the mother refer to matters which occurred prior to the signing of final consent parenting orders in February 2013 to a period when the parties were living together, whilst separated, under the one roof and were in regular conflict with each other.  The paragraphs also refer to a friend of the father’s, Mr D, who, it was conceded on behalf of the mother during submissions, is no longer a member of the father’s household to any extent, although he may have been during 2013, post the consent orders.  That is not to say that the allegations made by the mother about Mr D have been substantiated to any extent. 

3. Accordingly, the matters raised by the mother in her notes of risk are not matters to which I give any weight in these proceedings. 

4. The father in his Response joins in the application on an interim basis to discharge orders 18 to 53 and seeks fresh orders, including a restraint on the mother relocating the child to Sydney, from changing either of her preschools or enrolling her at school before 2016.  The father also seeks specific orders about the child’s education and residence with him.

Short History

1. The parties began living together in 2004 and married in 2009.  Their daughter was born in 2010.  They separated whilst remaining under the one roof in February 2011 and separated into separate residences in 2013.  The final consent orders were made at or around the time of that physical separation.

Current Arrangements

1. At present, there is a shared care arrangement on a two-week cycle.  The child is with the father in one week from after preschool Tuesday until before preschool Thursday and the other week from after preschool Tuesday until before preschool Wednesday, and each alternate weekend from 8.30 am Saturday until 8.00 am Monday. 

2. The child is with the mother in one week from the commencement of preschool on Thursday until 8.30 am Saturday and from 8.00 am or commencement of preschool Monday, overnight until commencement of preschool Tuesday, and in the other week from commencement of preschool Wednesday until commencement of preschool on the following Tuesday. 

3. There are certainly many changeovers for the child in an arrangement which sees her, in total, spending nine nights of a fortnight with her mother and five with her father.  The child attends two different preschools, one at G, one at T.

Child responsive memorandum

1. On 16 October 2014 the parties and the child met with a family consultant who prepared a memorandum for the benefit of the Court.  The memorandum confirms the respective applications, on a final basis, of the parties – that both parties want primary care of the child.  The memorandum is also consistent with the Notice of Risk in that information about the father’s friend, Mr D, was supplied by the mother and, to some extent, focused on both Mr D and events which occurred prior to the making of the final consent orders in 2013. 

2. The analysis of the orders is that they are not currently particularly helpful for the child.  In my view, the arrangements reflect competition for the child and a strong focus on fairness to the parents rather than on the needs of the child, who would probably have done a little better attending one preschool and having fewer disruptive changeovers between the two households.  However, I cannot be certain about that. 

The Law

1. When making a parenting order, a Court has to consider certain factors which are set out in the legislation and I will do so now. 

Primary considerations

1. The primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  The need to keep a child safe takes priority over the benefit of maintaining meaningful relationships. 

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both parents

1. In this matter, the child does have a meaningful relationship with each of her parents and appears to be strongly and warmly attached to each of them.  There is not, before me, evidence that she has been exposed to abuse, neglect or family violence.  Although, those allegations have been made.  If the matter proceeds to final hearing, there may be more evidence on that topic.  However for the purpose of these proceedings, the matters that have been raised do not satisfy me that there is a need to consider protecting the child from harm in the care of either parent at this stage. 

Additional considerations

1. The additional considerations are as follows.

Section 60CC(3)(a) – any views expressed by the child

1. The child is four years and eight months old.  She has had an experience, over the last almost two years, of moving very regularly between each of her parents’ households.  She probably does not have the maturity or experience to comment on what it would be like to have a different arrangement.  However, I note that she told the family consultant:

   When she is with her mum she misses her dad and when she is with her dad she misses her mum.[1]

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons

[1] Memorandum to Court dated 17/10/2014 par 49

1. I have already commented on the relationship between the child and each of her parents.  Each of the parents has a partner and the child herself has commented on knowing them and liking them.  However, there is no information, on this interim basis, that would allow me to come to any conclusion about the significance of those people in the child’s life.

Section 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about the child, spending time with her and communicating with her

1. Both parents, on the evidence before me, are very much concerned to participate in making decisions for the child, although they find it difficult to negotiate with each other.  And certainly, difficult to compromise in the way that parents sometimes have to when they disagree about long-term matters.  This has particular relevance for the child and her present education at preschool and her future education in primary school. 

2. There is no doubt that both parents have tried to spend as much time with the child and to communicate with her to the full extent of the orders and as often as can otherwise be agreed. 

Section 60CC(3)(ca) - the extent to which each of the parents has maintained the child

1. There is no particular evidence for complaint on this topic. 

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances

1. This is a relevant matter in these proceedings, where the mother has asked to change the child’s residence. 

2. There would then be a distance of between 150 and 200 kilometres between the mother’s household with the child and the father’s household.  The obvious disadvantage to the child of such a move being made on an interim basis is the disruptive impact of that change with the possibility of having to change back after a final hearing.  There is also a disadvantage in starting school, as the mother proposes, with the possibility that that schooling would cease and she would be starting at another school back in the Newcastle area.

3. The next impact would be the inevitable reduction of time for her with her father from five nights a fortnight to two, and at this age, and on an interim basis, the impact of that is likely to be adverse, although not fully known.

4. There is also a deficiency in the application of the mother to the extent that she refers to having a partner, which is confirmed by the child, but there is no reference in her application to whether or not she would be living with her partner in Sydney or what the arrangements for residence would be.  There is simply no reference to whether or not the mother’s partner would be a member of the household.

5. The mother could work full time in Sydney which represents a financial benefit to her and a flow-on financial benefit to the child.  However, she would be at school when there is uncertainty between her two preschools over her readiness for school with the attendant problems of possible disruption after a final hearing.

6. There is also the matter raised by the family consultant as to the impact on the child: 

   It is difficult to say how [the child] would manage if she were to commence Kindergarten in 2015 – much depends on how she copes socially.  She is a bright child and appears to be emotionally quite resilient, despite her early attachment issues, tumultuous upbringing and ongoing exposure to parental conflict.  If [the child] were to commence Kindergarten on top of having to cope with changing residence, relocating to Sydney and decreasing her time with her father, then it will compound any difficulties she may experience with regards to adjusting to school.[2]

Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with, and communicating with, a parent

[2] Memorandum to Court dated 17/10/2014 par 55

1. In this matter, where the child is not yet five, there would be considerable travel involved for her for a relatively short period.  Given that the mother’s proposal is that she live somewhere in the eastern suburbs of Sydney, there would be a long Friday evening journey out of the city to Newcastle and a short day on the Sunday with the father, to enable the child to be back in Sydney at a reasonable hour on Sunday evening. 

2. Particularly in circumstances where the family consultant raises a concern about capacity, I do think that the practical difficulties of the geographical separation proposed are a matter that I should give considerable weight to.

Section 60CC(3)(f) - the capacity of each of the child’s parents to provide for the needs of the chid, including emotional and intellectual needs

1. The family consultant notes that the child has appropriate behaviour and her speech, fine motor skills and attention skills were all within normal developmentally appropriate norms.[3]. 

   [3] Memorandum to Court dated 17/10/2014 par 46

2. This suggests that her needs are being met by each of her parents.  However, there has not yet been a full analysis of the capacity of the parents or any other person likely to be involved in the child’s life. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of the parents

1. The child is a four year old girl.  She is an only child.  Her parents had a period of difficult separation under the one roof which extended for somewhere between 18 months and two years which must have caused her some distress, young as she was. But she has now adapted to being a member of two households, although she is very conscious that her parents do not like each other. The child expressed to the family consultant that “her mummy and daddy … ‘won’t talk’ to one another and that her mum ‘runs away’ from her dad”.[4]

   [4] Memorandum to Court dated 17/10/2014 par 56

Section 60CC(3)(j) - any family violence involving the child or member of the child’s family

1. I note that tendered into evidence as exhibit 1 was a transcript of proceedings from the Local Court. 

2. The mother in her comments to the family consultant referred to her not succeeding with an application for an apprehended domestic violence order as being “on a technicality”.[5] 

   [5] Memorandum to Court dated 17/10/2014 par 31

3. Having read the transcript of the proceedings in the Local Court, I cannot accept that that was the reason.  There were proceedings where the mother gave evidence in the form of a prepared statement and was cross-examined.  The mother during her cross-examination agreed that the father had never threatened physical harm to her.  She denied threats of harm to the child, physical or sexual.  The proposition was put that the mother simply wanted to vary the family law orders so that the father no longer came to the home.  The mother agreed.

4. I note the following remarks by the local court magistrate at page 22:

   This quite clearly is a family law dispute where the person in need of protection wanted to force changes to a Family Law set of consent orders without going through the appropriate process of taking the matter back to the Federal Circuit Court and getting the orders changed there.  She instead adopted the approach of going to the Local Court via the police simply because a child was involved, and trying to force a change which was directly in contravention to consent orders that were initiated by herself. 

5. In conclusion, her Honour said this at page 22:

   I am not satisfied on any of the grounds that the order [for an apprehended domestic violence order] be made, and therefore I dismiss the application.

6. Taken together with the analysis of the notice of risk filed by the mother and the outcome of her application for an apprehended violence order, I am satisfied that there is no family violence involving the child or a member of her family. 

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. In relation to any other matter is the topic of the child starting school in 2015 or 2016.  Whether or not the mother is in the local area, the parents still disagree about when the child should start school.

2. She goes to two different preschools, and each preschool was asked to comment on the child’s readiness for school.  Annexures A and B of the mother’s primary affidavit contain those two reports.  I do not read either report as making an active recommendation for or against.  Rather, the preschool at T, Annexure A, appears to come to the conclusion that the child could start school, and the preschool at G, Annexure B, concludes that the parents should be conscious of certain matters raised about difficulties observed by them with the child’s independence and social readiness.

3. Unfortunately, the parents have each taken a view and see no way forward.  As was stated during the course of oral submissions, the Court cannot determine whether the child should start school.  Judges are not qualified to assess readiness for school.  The preschools have done their best.  They disagree.  There is no criticism of the preschools about that.  Each of them sees the child in a different setting, brought by different people, with different activities and different children forming friendships in the two different schools. 

4. The parents will have to find their own way forward by jointly consulting with an educational psychologist or jointly consulting with the directors of one or both of the preschool until they are able to come to a conclusion.  However, in exactly the same way as the concern about the impact on the child of an interim move to Sydney and back, the Court is concerned about a start at school when there is no certainty about where the child will be living after final applications are dealt with.  For that reason it seems appropriate to restrain the parties from enrolling the child at school without the consent of the other parent, pending further order.

Conclusion

1. Having considered all of the matters just referred to, the application of the mother to move to Sydney should be declined.  The potential disruption to the child of two moves is the overwhelming consideration.

2. That application having been declined, there is no basis on the evidence before me to reopen final orders made less than two years ago, which provide in an intricate level of detail for the parenting arrangements for the child on a staged basis up until age seven, up until age 12 and following where there would be equal time shared care.  Both parents now seek residence and different parenting arrangements.  It may well be that the mother continues to press for the ability to establish a residence for the child in Sydney.  If so, there will undoubtedly be final proceedings for new parenting orders for the child.  However, that is a matter for final hearing. 

3. Further, I note the recommendation of the family consultant that the presentation of the mother together with the information provided by the father would appear to indicate that a more comprehensive assessment is warranted prior to changing the parenting arrangements, particularly with regards to parenting capacity.[6]  The appointment of an Independent Children’s Lawyer is likely to assist the Court by objective material being put before it in respect of such a comprehensive assessment.  I would also need to consider the relationship between the child and each of the parents’ partners.

   [6] Memorandum to Court dated 17/10/2014 par 61

4. The evidence suggests that some modest adjustment to current arrangements, to the preschool attended, or to the number of days and nights spent with a parent, might be helpful to the child, but, in the circumstances, with the recommendation of the family consultant, and the uncertainty of the evidence about what the future arrangements will be for the child, it could be unhelpful, or even harmful, to fine-tune orders in these circumstances. 

5. Accordingly, I have made orders dismissing the application of the mother;   restraining her from moving away from the Newcastle area; restraining the parents from enrolling the child at school pending further order; and otherwise dismissing the applications. 

6. I will distribute those orders now. 

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 14 November 2014.

Associate: 

Date:  20 November 2014