Harnett and Sampson (No. 11)

[2007] FamCA 1517

FAMILY COURT OF AUSTRALIA

HARNETT & SAMPSON (NO. 11) [2007] FamCA 1517

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Harnett

RESPONDENT: Ms Sampson

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Aid Commission of NSW

Orders

1. Orders are made in terms of paragraphs 1 to 7 inclusive of the Application in a Case of the father filed 17 December AND it is noted the order made in terms of paragraph 1 is made by consent.

2. The matter is otherwise referred back to Her Honour Justice Moore

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

MR HARNETT  

Applicant

And

MS SAMPSON  

Respondent

REASONS FOR JUDGMENT

1. There was a decision of the Full Court delivered on 22 November 2007 that arose from an appeal against orders made by a judge of this registry on 21 March 2007.  Kaye J in his judgment says that the gist of the orders of 21 March 2007 was that the children's parents have equal shared parental responsibility; that the children's residence be established in Sydney no later than 1 May 2007; that following their relocation to Sydney the times the children were to spend with their father be gradually increased from two nights a week to alternate weeks with each parent by 1 February 2009.

2. The Full Court summarised the background in the following terms.

   “Three or four years before the wife met the husband the wife had moved to Sydney from Melbourne or Geelong.  She had family including her mother and stepfather in Geelong and her father lived in Adelaide. The father had his immediate family residing in Sydney. The trial judge resolved an issue about when the parties commenced a relationship finding that cohabitation commenced in July 2000.  The husband had a son [J] born in March 1996 from a previous marriage and shared [J]'s care with his former wife "in ways that changed over time". The parties married in July 2001.  Their first child, [K], was born on […] April 2003.  The parties resided at [V].  Final separation of the parties occurred in August 2004.  In that same month the husband's son, [J], moved to live full time with his father, although seeing his mother at regular intervals.  Upon separation the wife moved to Geelong with [K].  The child, [T], was born on […] November 2004.  At the time of trial the wife was occupying rented premises in Geelong with two children.  The husband remained living in the [V] home. 

3. The Full Court judgment quotes the trial judge:

   The period since separation has been fraught with conflict and continual litigation either related to the children or to property and financial matters.

4. And the Full Court quoted some findings that her Honour had made:

   The mother has not demonstrated an appreciation of the father's role in the children's lives.  There is no particular basis on which it can be said that her outlook was likely to change in the future.  If her demonstrable lack of support in this area were to continue into the future there is the spectre of the children becoming alienated from their father. The children should have the opportunity to spend considerable time in their father's care and that he should have the opportunity to take a proper role in their day to day lives and their upbringing.  By the same token, their mother is obviously of central importance to them and it is essential that they continue to have the opportunity to spend time in her care and that she take a proper role in their daily lives and upbringing.

5. Unfortunately, with the husband living in Sydney and the wife in Geelong this presents practical problems and as I have said her Honour ordered that the children's residence be established in Sydney no later that 1 May this year. The orders provided for a sequence of time leading up to equal shared time in February 2009.

6. The Full Court has referred the matter back to her Honour and set aside all of the relevant orders:

   “The application for parenting orders is remitted to Moore J for hearing and determination in accordance with the reasons of this Court.” 

7. The Full Court dealt with two aspects of insufficiency in relation to her Honour's judgment, firstly relating to the practicability of the wife moving to live in Sydney.  The Court acknowledges that there is an issue about whether the Court has power to order a parent to move but it is accepted that that was the impact of the order that the children be established in Sydney. The Full Court said that her Honour's orders were in effect at the extreme end of the discretionary range and the other significant matter was as to whether there were other options that the parties had not proposed but that might be considered.

8. The matter was referred back to Moore J and can first come before her Honour in February 2008. Thus I am asked to make a decision on some issues.  They are about the living arrangements in the immediate future and in particular over the Christmas period and thereafter.  It is agreed that the parties should continue to have a shared involvement in decision‑making. Therefore I will order that the parties have equal shared responsibility. There is an issue about whether K should commence school in 2008.  The issues are inter-linked of course because if K commences school next year, that has a significant effect upon what time will be available to her and because of her, what time her brother can spend with the husband.

9. The easiest issue is the question of the arrangements around Christmas Day.  The husband proposes that the children be with him from 5 pm on 21 December until 5 pm on 24 December and the wife seeks that the period with the husband be from 20 December to Christmas Eve, 24 December. I am told the impost of travel on the children is not as bad as it might look.  The relevant flights go to Avalon which is on the western side of Melbourne and so the trip to Geelong is not as bad as it might otherwise be. There is no difference between the proposals in terms of sparing the children travel on a special day. It is just a question of whether they have the impact of three hours or so of travel on Christmas Eve, which would impact them on Christmas Day, or whether they have the travel on Christmas Day which would impact them on Boxing Day. 

10. No other options are put forward. The children have put up with this sort of travel for some significant time.  The wife says that the program of travel has been adverse to their wellbeing but she proposes it herself here. The wife has made no arrangements for the flight she has proposed on 24 December or as far as I am aware, for the flight she proposes on 20 December.  The husband has and on that basis it seems to me that his proposals are known to be practicable and therefore should be adopted.  There is a raft of material in the parties' affidavits about miscommunication they have had and problems they have had in recasting travel arrangements to meet the exigencies of various changes to the orders that have occurred over time.  You could not be sanguine about them accommodating any problems with putting in place some changed arrangement so I think that is the sensible course.

11. Nextly, as was pressed on me, it is sensible to look at the schooling issue first because that will determine what is practicable into the New Year.  K is four.  The wife's case is to the following effect:

    I flagged in correspondence sent to the father in October that [K] would be starting school in 2008.  I mentioned a couple of schools including a couple of Catholic primary schools and there was no response from the father until, (I think), December.  I understand that the father has been in touch with the pre-school that the child attends and so the father would be well aware that the child is expecting to go to school;  that the pre-school expects her to go to school;  that she is ready;  and now is the time.

12. There is a letter which is said to be a letter from the pre-school.  It is not on letterhead.  It is a letter brought into being for the purposes of the litigation, rather than in the normal course, and is before me without objection. The relevant parts of the letter are:

    In our observation we have the firm opinion that [K] is a very well‑adjusted little girl and a delight to have in our class and without doubt is ready to commence school next year.  We see no reason why [K] should not commence school next year.  She is of school age, prepared and ready.  She has completed an entire year of four year old kinder and there are no further programs [K] can undertake if she was not to commence school next year.  In our observation we can see no reason for holding back [K] another year.  It would be a waste of a year.  In the event [K] is not able to commence school next year she will not be able to repeat or continue to attend [HG] Pre-school next year.  [HG] Pre-school is a government funded institution and for a child to be eligible to repeat four year old kinder the Department of Human Services must assess the child and make the appropriate grant.  The case must be presented that the child has learning or developmental issues and is not ready for school which is clearly not the case here.  [K] will not be eligible for a grant.  We were in any event somewhat surprised by the suggestion that [the father] was not aware that [K] would be attending school next year in circumstances where all of the newsletters have spoken about the children's progress and how we have prepared the four year old kinder group at the school as well as our lesson plans which have focussed on preparing and equipping the children for their years at primary school.  We understand from our discussions with [K] that she is most excited about starting school next year and she would be greatly disappointed if she were not able to attend school next year.  We confirm it is undoubtedly in [K]'s best interests that she commence school next year.

13. And that is the wife's case.  She confirms that the child is excited about it.  She has a school uniform I was told - presumably that is in the affidavit - and is very excited about attending big school next year.

14. The husband's case is a bit thin on this issue.  He says he was not consulted; he does not agree; he does not think it is in K's best interests and in his experience based on J is that it can be a retrograde step to send a child to school too young. 

15. The problem comes, as has been mentioned on behalf of the children is that if I do not restrain the commencement of school; it is not only K who is affected. Her commencement at school, depending on what happens into the future, will place significant restrictions on what can happen as far as the husband's time with the children. Although only K would be at school, the reality is that her commencement of school will mean that the program that the wife has contended for in the past and the program the husband has contended for will not be feasible next year. 

16. A matter of concern to me is the way in which the matter comes before me.  The matter has been referred back to Moore J who made certain orders based on a decision about the best interests of the children. 

17. The Full Court as it observes, had the option of remitting the matter for rehearing before another judge. That was not done. I take it then that there is some sympathy in the Full Court for the approach that was identified at first instance in the best interests of these children at the end of something like a 14 day hearing.  Further, there is a possibility and it is not a fanciful possibility that the children will end up living in Sydney.  That has the spectre of K, who we are trying to avoid being embarrassed by not keeping up with her cohort in Victoria, having the wrench of leaving school in Victoria during 2008 and starting in a different system in NSW on top of the other changes that will be necessary in her life.

18. I am not permitted, as has been suggested to some extent I think, to make orders about a child for reasons other than it is in the child's best interests.  For example, there is some criticism of the wife in these proceedings; there has been an occasion when a judge of this Court found that she was in breach of parenting orders. That finding is inconsistent with the wife’s stated intention to promote the husband’s relationship with the children.  In fact I think she has tried to make a further submission in the contravention application in her latest affidavit.  So it might be that she is not the best judge of these things. The issues in this case focus on the safety of these children.  They have experienced more of life than anybody should have to put up with.  The primary matters that I am required to take into account in respect of the best interests of a child are, firstly, safety from harm, physical harm or violence and secondly, a child having a proper relationship with both parents.

19. Although the Full Court has raised that in connection with this case in that her Honour was invited to consider the prospects of the husband setting up shop in Geelong and spending more time with the children there, that is not the arrangement that is proposed here. As to the benefit to a child of having a meaningful relationship with both of the child's parents, the wife's proposal is that from the time K commences school, that the children would be with the husband each fortnight from 5 pm Friday until the commencement of school on Monday in Geelong and half of the school holidays, and then an opportunity for the wife to agree to the children coming to Sydney every six weeks.

20. I have had something to do with this case.  I think I have delivered three or four judgments in this case over the last 12 months or so.  I have some knowledge of it and I think the situation was that the husband managed a relationship with the children on the basis that he has supervised time with them in Geelong.  The thrust of her Honour's orders was that there be an incremental development of the relationship.  It is said on behalf of the children that it is not going to be conducive to that relationship if the time is spent in the artificiality of the circumstances of a motel, even with supportive motel owners, in the Geelong area. 

21. Such a proposal would cause a problem with J. With a sibling in Sydney; it is not going to be practicable for anything like the time available in Sydney to be spent between the three children if that has to be in Geelong. Thus the commencement of school in Victoria will have a devastating impact on K’s time with her father, and perhaps more importantly, on T.  In my view, for those reasons the wife should be restrained from causing K to start school in the 2008 school year. 

22. Then coming back to what the living arrangements should be.  We have moved past to some extent the orders that her Honour had foreshadowed leading to equal time in February 2009. There are a couple of big things that have happened since. Firstly, there is the parties heightened concern about the frequency of travel and its impact on the children. There is an indication that the children should not be required to travel in too short a period. It appears that even the wife recognises that.  Her proposal is, as I said, for one half of the school holidays to be spent with the husband from April next year. She does not say that she wants that broken up by lots of four days or in some other way.  I assume she means half and half. 

23. I do not know what sort of shape these children are in.  As I say, they have had more to deal with than most. There is some reason for optimism because of what the pre-school says about K.  She sounds like she is doing really well.  No mention of the tiredness that the wife is concerned about, no mention of any adverse impact of her missing pre-school during 2007. She is "well-adjusted, a delight to have in our class".  Lovely words for the parents to read.  So I think we do our best with the practicabilities of it and the risks and provide for the orders to substantially be week about hereafter. I considered asking the parties to try and settle the details of a week about arrangement but I see her Honour tried that originally and it took a month or so for orders to be settled.

24. One thing I might mention is the wife’s concern about the husband spending time with the children when he does have them. She has done some research on this …, she is aware of occasions when he has been reported being somewhere on days when the children are with him.  It is not a situation when a child lives with a parent that they are with that parent all the time.  The wife's proposal for next year for example is that somebody else will care for K from 9 o'clock till 3 o'clock every school day. There is pre-school and other arrangements. I can understand a concern about a parent who wants to have a child live with him but does not spend time with them but the occasions of concern that are reported in the wife's affidavit seem to me to exaggerate the problem.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Loughnan JR

Associate

Date:  20 December 2007