Hartnett and Sampson
[2009] FamCA 106
•19 February 2009
FAMILY COURT OF AUSTRALIA
| HARTNETTT & SAMPSON | [2009] FamCA 106 |
| CHILDREN – INTERIM HEARING – where the children will live between interim orders and conclusion of final hearing – two children – mother resides in Geelong and father resides in Sydney – current interim orders are a week about arrangement between Geelong and Sydney – eldest child starting school – interim arrangements require change – each party unilaterally prepared the child to go to school in their respective locations - effect of change and practical difficulties and expense of the week about arrangement - issues relating to the parties’ employment and commitment to other children in their care - children’s relationship and attachment with half siblings - the elder child is to commence school in Sydney - mother to give notice to her availability to live in Sydney and to share week about care with the children on the basis that the father pay her $300 per week towards her accommodation costs – in the alternative that the children to live in the interim in Sydney with the father and spend time with the mother in Geelong |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Hartnett |
| RESPONDENT: | Ms Sampson |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| FILE NUMBER: | SYF | 3827 | of | 2004 |
| DATE DELIVERED: | 19 February 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 13 February 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
PENDING FURTHER ORDER IT IS ORDERED THAT:
In the event that the mother gives the father written notice by 2 March 2009 of her ability to live in Sydney and have the parties’ daughter punctually attend the M Catholic School, Sydney, NSW (“[M] School”), then the following interim orders are made pending further order:
1.1.The daughter, K, born in April 2003 (“[K]”) and the parties son, T, born in November 2004 (“[T]”) (“the children”) live with each parent on a week on week off basis and that change over occur at the M School upon the completion of K’s schooling on Friday; with the mother’s first week to commence Friday 6 March 2009.
1.2.The father pay $300 per week towards the mother’s accommodation in Sydney on the basis that those funds be refunded by the mother to the father from any proceeds she receives from the implementation of orders relating to the alteration of property.
1.3.The children spend time with the mother (in Geelong if she desires) as follows:-
1.3.1.On two occasions each school term from 5pm Friday to 5pm Monday during times the children would otherwise be with their mother with the mother to fund the cost of flight ;
1.3.2.For one half of the NSW school holidays at the conclusion of Term 1 and 2;
1.3.3.And/or at other times agreed by the mother and father in writing.
1.4.The mother have telephone contact with the children during the times they spend with the father each Tuesday, Thursday and Saturday between 5pm-6pm and at agreed times.
1.5.The father have telephone contact with the children during the times they spend with the mother each Tuesday, Thursday and Saturday between 5pm-6pm and at agreed times.
1.6.The children spend time with each parent:
1.6.1.On K’s birthday (April 2009) and failing agreement for three hours with the parent with whom the children are not living with on that day.
1.6.2.On Mother’s day and Father’s day each year to the extent necessary these orders are suspended to enable the children to spend that day with the relevant parent.
In the event that the mother does not give the notice referred to in Order 1 then until further order:
2.1.The children live with the father.
2.2.During NSW school term the children spend time with the mother as follows:-
2.2.1.In Geelong for two (2) three day weekends per term from 5.00pm Friday to 5.00pm Monday and failing agreement in the first school term of 2009 commencing Friday 6 March 2009 and Friday 20 March 2009 and thereafter on the third and sixth weekends of school term;
2.2.2.In Sydney for a period of five (5) consecutive nights per term on the mother providing to the father fourteen (14) days written notice of being in Sydney being from after school Wednesday to before school Monday.
2.3.Pending further order during NSW school holidays (“school holidays”) the children spend time with the mother as follows:-
2.3.1.For ten (10) consecutive days from the commencement of school holidays at the conclusion of Term 1;
2.3.2.For one half of the school holidays at the conclusion of Term 2;
2.3.3.For the purposes of Orders 2.3.1 to 2.3.2 inclusive, the school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
2.4.For the purpose of Orders 1.3.2, 1.3.3, 2.2.1 and 2.3 the father shall do all acts and things and pay such monies required to facilitate the children travelling to Geelong and returning to Sydney.
2.5.For the purpose of Order 2.2.2 the mother shall deliver the children to Avalon airport Geelong to travel to Sydney on the Monday on the nominated flight by the father.
2.6.For the purpose of Order 2.2.2 the mother shall:-
2.6.1.Collect K from the M School and T from T Preschool on the Wednesday, and return the children to the father at the M school on the Monday 15 minutes prior to the commencement of school; and
2.6.2.Do all acts and things and pay any such monies as required to facilitate such contact event.
K commence at the M School forthwith and continue at the M School until further order.
T attend T Preschool NSW forthwith and continue at such preschool until further order.
The father ensure that in the event that the children are in the presence of their step-brother J, then the father will be present or the father will have arranged for supervision of J at those times.
Any prior interim orders, inconsistent with these orders, are discharged.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 HARTNETT |
Applicant
And
| MS SAMPSON |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This interim hearing is about where K born in April 2003 and T born in November 2004 (“the children”) will live between the date of these interim orders and the conclusion of the final hearing.
Notwithstanding their ages, the children’s parents have been locked in extensive litigation for some time. This matter has already been to the Full Court on two occasions. Orders made after a 13 day hearing were set aside.
Whilst it is not certain, it is hoped that the final hearing of this matter can be contained to a six day period commencing 1 May 2009.
K has to start school. Accordingly, the interim arrangements whereby the children fly on a week about basis between Melbourne and Sydney must cease.
The interim hearing was hard fought and I have no doubt that both parties believe that a tactical advantage will be gained depending on whether or not the children, pursuant to these interim orders, live in Geelong or Sydney. Given that the time between now and the final determination is expected to be short, I can only hope that this determination does not significantly affect the considerations of the trial judge who conducts the rehearing.
THE CURRENT ORDERS
The children are seeing their parents pursuant to orders made by a Judicial Registrar on 17 December 2007. Those orders are as follows:-
1.That pending further Order the husband and wife have equal shared parental responsibility for the children [K] born […] April, 2003 (“[K]”) and [T] born […] November, 2004 (“[T]”).
2.That [K] and [T] (“the children”) live with the father from 5:00pm 21 December 2007 until 5:00pm 25 December 2007 and in respect of this Order:-
2.1The mother shall deliver the children to Avalon Airport at 4:45pm on 21 December for the children to travel on Jetstar […] from Avalon Airport to Sydney;
2.2That the father shall collect the children from Avalon Airport on 21 December and travel with them to Sydney;
2.3That the father shall return the children to Avalon Airport on Jetstar […] departing Sydney at 5:40pm on 25 December, 2007.
3.That pending further Order the children live with the father on an alternate seven (7) day weekly basis the first period commencing 5:00pm 4 January, 2008 concluding 5:00pm 11 January, 2008 and fortnightly thereafter and with the wife during the other weeks.
4.For the purpose of Order 3 the father shall collect and return the children from Avalon Airport for the first weekly period each month and the father shall be responsible for the costs of such travel. It is the intention that the children will travel on the Jetstar Flight leaving Avalon Airport at 5:45pm and return to Avalon Airport departing Sydney on the 5:40pm flight.
5.For the purpose of Order 3 the mother shall deliver the children to Sydney Airport on the second weekly occasion each month, the first period to be 18 January, 2008 to 25 January, 2008 inclusive with the mother to be responsible for the costs of such travel subject to Order 6.
6.In respect of the children’s travel pursuant to Order 5 the father shall obtain further loan monies to pay the cost of such transport which shall be added to the monies payable by the wife to the husband under Order 3(iv) of the Orders of this Court dated 21 March, 2007.
7.That the mother be restrained from enrolling and/or commencing [K] in any school without the prior written consent of the father.
These orders were confirmed by me in January 2008. At that time it was anticipated that the matter would go back before the original trial judge, Moore J, in accordance with orders made by the Full Court. Subsequently however Moore J, on application by the mother, disqualified herself. There was then a case stated to the Full Court on the question of whether or not the new trial judge could use findings made by the first trial judge and that matter has now been resolved by the Full Court in the negative (absence the agreement of the parties).
The father’s interim application dated 14 October 2008
The father originally made an application for interim orders (filed 14 October 2008) in the following terms:-
1.That pending further order the children [K] born […] April 2003 (“[K]”) and [T] born […] November 2004 (“[T]”) live with the father.
2.That [K] commence at [M] Catholic School [Sydney] NSW (“the [M] school”) at the commencement of the first school term in 2009 and continue at the [M] school until further order.
3.That [T] attend [T] Preschool at [Sydney] NSW in 2009 and continue at such preschool until further order.
4.That pending further order during NSW school holidays (“school holidays”) the children spend time with the mother as follows:-
4.1For ten (10) consecutive days from the commencement of school holidays at the conclusion of Term 1;
4.2For one half of the school holidays at the conclusion of Term 2;
4.3For ten (10) consecutive days from the commencement of school holidays at the conclusion of Term 3;
4.4For one half of the school holidays commencing at the conclusion of Term 4, the first half to be in December 2008 and every alternate year thereafter and in every other year the second half of the school holidays;
4.5For the purposes of Order 4.1 to 4.4 inclusive, the school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
5.That pending further order during NSW school term the children spend time with the mother as follows:-
5.1In Geelong for two (2) three day weekends per term from 5.00pm Friday to 5.00pm Monday;
5.2In Sydney for a period of five (5) consecutive nights on the mother providing to the father fourteen (14) days written notice of being in Sydney being from after school Wednesday to before school Monday.
6.That for the purpose of Order 5.1 the father shall do all acts and things and pay such monies required to facilitate the children travelling to Geelong on the Friday and returning to Sydney on the Monday.
7.That for the purpose of Order 5.1 the mother shall deliver the children to Avalon airport Geelong to travel to Sydney on the Monday on the nominated flight by the father.
8.That for the purpose of Order 5.2 the mother shall:-
8.1Collect [K] from the [M] school and [T] from [T] Preschool on the Wednesday, and return the children to the father at the [M] school on the Monday 15 minutes prior to the commencement of school; and
8.2Do all acts and things and pay any such monies as required to facilitate such contact event.
On the morning of the hearing the mother filed a further amended response which is set out below. That amended response contained a primary proposal of the mother and an alternative proposal. Counsel for the father indicated the father would accept the mother’s alternative proposal with certain changes and the father’s acceptance of that alternative proposal (with the changes the father indicated) became the father’s primary application for interim orders before me.
The father’s primary proposal
The father’s primary proposal is to take paragraphs 10 to 15 of the mother’s amended response and amend it in the following ways:-
8.In the alternative if the court orders the children live in Sydney:
8.1.That the children live with each parent on a week on week off basis. That change over occur at [M] school.
8.2.That the father pay
one week in advance for the mother [sic] accommodation for a 3 bedroom serviced apartment within 0.5km of [M] School$300 per week towards the mother’s accommodation in Sydney.8.3.
That the father pays for the mother’s and the children’s return flights between Geelong and Sydney.9.That the children spend time with the mother in Geelong as follows:-
9.1.
During long weekends in 6-10 March 2009, 10-13 April 2009, 5-9 June 2009. On two occasions each school term from 5pm Friday to 5pm Monday with the mother to fund the cost of flight.9.2.For one half of the NSW school holidays at the conclusion of Term 1, 2 and 3.
9.3.
Christmas 2009 and then each alternate Christmas.10.And/or at other times agreed in writing.
11.That the mother have telephone contact with the children during the times they spend with the father each
dayTuesday, Thursday and Saturday between 5-6pm and at agreed times.12.That the father have telephone contact with the children during the times they spend with the mother each
dayTuesday, Thursday and Saturday between 5-6pm and at agreed times.13.That the children spend time with each parent:
13.1.
On special occasions such as children birthdays, a parent’s birthday, or special family celebrations at times agreedOn [K’s] birthday ([…] April 2009) and failing agreement for three hours with the parent with whomtheythe children are not living on that day.13.2.On Mother’s day and Father’s day each year to the extent necessary these orders are suspended to enable the children to spend that day with the relevant parent.
Counsel for the father explained these changes as follows:-
11.1.It was asserted by the father that he did not have the capacity to pay more than $300 per week and he could only pay $300 per week on the basis that he would be relieved from his current obligation to pay the airfares for week about travel (3 return air tickets per fortnight).
11.2.He could not agree to the proposal at 10.2 of the orders sought in the mother’s further amended response which provided for him to pay for a three bedroom serviced apartment within 0.5 kilometres of M Catholic School given that no notice had been provided of that alternate proposal and he had no ability to test whether or not such accommodation was available and if so, whether or not he could afford the cost of such accommodation. The mother led no evidence as to either of those matters.
11.3.The father and the Independent Children's Lawyer opposed the length of the long weekends proposed by the mother.
11.4.The father and the Independent Children's Lawyer suggested that three telephone contacts a week were sufficient and more in accordance with the children’s best interests than daily telephone contact.
11.5.The generic nature of the mother’s order in relation to special occasions was opposed given the total lack of communication and agreement between the parties at the present time.
The mother’s response
The mother’s response to the husband’s application changed on a number of occasions. During submissions, counsel for the mother indicated that the mother’s alternate response could be amended in the way suggested by the father (which the father had adopted as his primary application). By the end of submissions, however, it was clear that that indication made by counsel for the mother, was withdrawn, as conditions in relation to accommodation were not acceptable. Her position in respect of accommodation in Sydney remained as set out in order 10.2 (the text of which is set out in paragraph 14 below).
The primary position of the mother’s further amended response was that the children reside with her in Geelong until the final hearing.
The terms of the mother’s further amended response were as follows:-
1.That until further order the children [K] born […] April 2003 and [T] born […] November 2004 live with their mother.
2.That [K] attend [S] Primary School and [T] attend [HG] Preschool in Geelong.
3.That the children spend time with the father on 3 of 4 weekends:
3.1From 5pm Friday to the commencement of [S] Primary School and [HG] Preschool Monday morning.
3.2That the father to travel to Geelong and spend time in Geelong with the children on 2 of those occasions and third in Sydney.
3.3That the mother delivers the children to the father at the commencement of such time.
3.4That the father takes the children to extra curriculum activities which may be on weekend they are in his care.
4.That the children spend time with each parent.
4.1On special occasions such as children birthdays, a parents birthday, or special family celebration at times agreed and failing agreement for three hours with the parent with whom they are not living on that day.
4.2On Mother’s day and Father’s day each year and to the extent necessary these orders are suspended to enable the children to spend that day with the relevant parent.
5.That the children spend time with the father in Sydney as follows:
5.1During long weekends in 6-10 March 2009, 10-13 April, 2009, 5-9 June 2009;
5.2For one half the Victoria school holidays at the conclusion of Term 1, 2 and 3.
6.And/or at other times agreed in writing.
7.The father be responsible to pay for all flights and travel costs until the settlement of the sale of the former matrimonial house.
8.That the mother have telephone contact with the children during the times they spend with the father each day between 5-6pm and at agreed times.
9.That the father have telephone contact with the children during the times they spend with the mother each day between 5-6pm and at agreed times.
10.In the alternative if the court orders the children live in Sydney:
10.1That the children live with each parent on a week on week off basis. That change over occur at [M] school.
10.2That the father pay one week in advance for the mother [sic] accommodation for a 3 bedroom serviced apartment within 0.5 km of [M] School.
10.3That the father pays for the mother’s and the children’s return flights between Geelong and Sydney.
11.That the children spend time with the mother in Geelong as follows:-
11.1During long weekends in 6-10 March 2009, 10-13 April 2009, 5-9 June 2009.
11.2For one half of the NSW school holidays at the conclusion of Term 1, 2 and 3.
11.3Christmas 2009 and then each alternate Christmas.
12.And/or at other times agreed in writing.
13.That the mother have telephone contact with the children during the times they spend with the father each day between 5-6pm and at agreed times.
14.That the father have telephone contact with the children during the times they spend with the mother each day between 5-6pm and at agreed times.
15.That the children spend time with each parent:
15.1On special occasions such as children birthdays, a parent’s birthday, or special family celebrations at times agreed and failing agreement for three hours with the parent with whom they are not living on that day.
15.2On Mother’s day and Father’s day each year to the extent necessary these orders are suspended to enable the children to spend that day with the relevant parent.
By the end of the mother’s submissions, the mother had added a second alternate proposal and it was that the father reside on a week about basis in Geelong so that the children would continue to be with their parents on a week about basis until the final hearing with K starting school in Geelong.
Independent Children's Lawyer’s Application
The Independent Children's Lawyer supported the father’s position on an interim basis. That is, that the children live in Sydney until the conclusion of the final hearing and K start school here. The Independent Children’s Lawyer’s preferred option was for the mother to be in Sydney on a week about basis so that the children are with her here. In the event that this was not feasible then the Independent Children's Lawyer endorsed the father’s other proposal (which was originally his primary proposal but now is his alternate proposal) of the children living in Sydney with him.
Orders in relation to J
J is the children’s step-brother. At the time of the first defended hearing he was ordinarily living with his father. Based on matters contained in records subpoenaed from J’s school, the mother made an application that the children not come into contact with J. The father indicated that he would consent to an order in the following terms:-
The father ensure that in the event that [the children] are in the presence of their step-brother [J], then the father will be present or the father will have arranged for supervision of [J] at those times.
The Independent Children's Lawyer indicated that she supported the order in relation to J as proposed by the father rather than that proposed by the mother. My discussion and conclusion about this issue is set out below.
DOCUMENTS READ
The documents the parties asked me to read were extensive. I indicated to the parties that although I will have perused the material, I had not studied all of it. This interim application is primarily about where K is to go to school in the short term. I invited counsel for the parties to take me to parts of the material that they felt was particularly relevant to any submission that they wished to make. Those documents were as follows:-
Mother’s documents
19.1.Case outline from mother;
19.2.Mother’s Amended Application for Final Orders filed 24.8.07;
19.3.Mother’s Response to an Application in Case filed 12.11.07;
19.4.Mother’s Further Amended Response filed 13.2.09
19.5.Affidavit of mother sworn 9.7.08;
19.6.Affidavit of mother filed 18.12.08;
19.7.Affidavit of E Sampson filed 30.1.09;
19.8.Affidavit of mother filed 30.1.09;
19.9.Affidavit of mother filed 30.1.09;
19.10.Affidavit of maternal grandmother filed 5.2.09;
19.11.Affidavit B Sampson filed 4.2.09 (I was unable to locate this document and it was not referred to in submissions);
19.12.Affidavit of mother filed 5.2.08;
Father’s documents
19.13.Case outline from father;
19.14.Father’s Application in a Case filed 30.10.07;
19.15.Father’s Application in a Case filed 13.6.08;
19.16.Father’s Contravention Application filed 23.6.08;
19.17.Father’s Application in a Case filed 23.6.08;
19.18.Father’s Amended Application in a Case filed 4.7.08;
19.19.Father’s Application in a Case filed 14.10.08 (paras 1 - 8 inclusive);
19.20.Father’s Financial Statement filed 6.1.06 ;
19.21.Father’s Response to an Application in a Case filed 14.9.07;
19.22.Affidavit of father filed 13.6.08;
19.23.Further affidavit of father filed 23.6.08 ;
19.24.Further affidavit of father filed 14.10.08;
19.25.Affidavit of father filed 23.1.09;
19.26.Affidavit of father filed 28.1.09;
19.27.Affidavit of father filed 4.2.09 ;
Independent Children’s Lawyer’s documents
19.28.Case outline from the Independent Children's Lawyer;
Orders, Transcripts and Reports
19.29.Reasons for Judgment of Moore J dated 14.2.07;
19.30.Reasons for Judgment of Moore J dated 21.3.07 ;
19.31.Property orders made by Benjamin J dated 12.10.07;
19.32.Property orders made by JR Johnston dated 13.11.07;
19.33.Reasons of the Full Court dated 22.11.07;
19.34.Orders of JR Loughnan dated 17.12.07;
19.35.Transcript (evidence of A/P Q) 9.10.06 (appeal book reference, volume 11 pp 1850-1876);
19.36.Transcript (evidence of A/P Q) 17.10.06 (appeal book reference, volume 12 pp 2315-2328);
19.37.Transcript of Proceedings before Fowler J dated 16.1.09;
19.38.Report of A/P Q dated 6.2.09;
19.39.Report of A/P Q dated 8.5.06;
19.40.I also take into account my Reasons for Judgment dated 23.1.08.
The parties also tendered material before me. The material tendered by the mother included records of the involvement of the parties with the Child Support Agency and J’s school records with IS College.
The father’s tendered material included details of the mother’s involvement in enrolling K in school in Melbourne at a time when there was an injunctive order prohibiting her from doing so.
SHORT HISTORY
The father was born in April 1965 and is currently 43 years of age.
The mother was born in May 1970 and is currently 38 years of age.
J was born in March 1996 and is 12 years of age. He is a son of a previous marriage of the father.
The parties commenced cohabitation in July 2000 and married in July 2001.
K was born in April 2003 (and is nearly 6 years of age).
The parties finally separated in August 2004 and proceedings were first commenced in this Court by the father on 2 September 2004.
T was born in November 2004 and is current 4 years of age.
Orders were originally made at the conclusion of a long final hearing by Moore J on 21 March 2007.
The mother successfully appealed to the Full Court who delivered a judgment on 22 November 2007. The orders made by Moore J were discharged and the matter was remitted to Moore J to conclude her deliberations and for her to then make new final orders.
Interim orders were made by the Judicial Registrar on 17 December 2007 and confirmed by me in January 2008.
As already mentioned, Moore J disqualified herself and a case was stated to the Full Court. The matter is now to be heard afresh on a final basis by another judge.
The mother has had a new baby, Z, who was born in November 2008 and who is less than three months old. The father of Z does not live with the mother but continues to financially support her.
There are a large number of factual disputes between the parties. Those issues are not able to be resolved by me within the limited confines of this hearing.
Associate Professor Q is the Chapter 15 expert in this matter (“Dr Q”). Her basic recommendation and opinion has not changed throughout the course of her involvement in the matter. She says the children need to have a stable living arrangement with one parent and very generous contact with the other.
Both parties have now crafted their interim proposals with Dr Q’s assessment in mind.
STATUTORY CONSIDERATIONS
Part VII of the Family Law Act 1975 (“the Act”) and the Full Court’s decision in Goode and Goode (2006) FLC 93-286, prescribe what I need to do in an interim parenting case.
I have already identified the competing proposals and alternate proposals of each of the parents.
I then need to identify the issues in dispute in an interim hearing. I will touch on the more important issues shortly.
I need to identify any agreed or uncontested relevant facts.
I then need to consider the matters in s 60CC of the Act which are relevant, making findings if possible.
There is currently an interim order for equal shared parental responsibility and legislation mandates that I should consider equal time or substantial and significant time if it is in the children’s best interests and if it is reasonably practicable.
AGREED OR UNCONTESTED MATTERS
There are not many agreed or uncontested matters.
The parties agree that the children have a loving relationship with each of their parents; that each of their parents have the capacity to provide appropriately for the children’s physical and educational needs.
The father is residing in Sydney. The mother is residing in Geelong. It is clear that both parties currently wish to continue to live where they are currently living.
The children have the opportunity to attend a school and preschool in both Sydney and Geelong which is appropriate to their needs. Neither party is in a personal relationship. The mother is not currently living with Z’s father. The mother is in receipt of Centrelink benefits. The father has family and support in Sydney and the mother has family and support in Geelong. The father has no family or supports in Geelong. The mother also has family, including her sister and her father, in Sydney. Her father was present with her in court on 13 February 2009, was present when a recovery order was executed by police in January 2009 and I accept that he is available to play a supportive role to the mother.
Since February 2008 the mother has had the capacity and the opportunity to participate in the children’s preschooling in Sydney and has done so.
Since February 2008 the children have not attended preschool in Geelong but the mother has involved the children in other educational and cultural activities.
At the current time and into the foreseeable future, the parties do not have the ability to communicate effectively with one another in relation to the children, if at all.
SECTION 60CC MATTERS
I am required to make a determination which is in the children’s best interests. My ability to consider the matters set out on s 60CC(2) and (3) of the Act is necessarily confined given the nature of this hearing.
The benefit of having a meaningful relationship with both of the children’s parents
It is to the benefit of each of the children to have a meaningful relationship with each of the parents. The question really comes down to what set of interim proposals is most likely to afford opportunities to the children to have a meaningful relationship with both their parents. In this case, those opportunities are maximised if the parents can live in close proximity.
The father points to his employment and his relationship with J as reasons which preclude him from being week about in the Geelong area. As I will discuss later, the question of the father’s need to care for J in Sydney may now be in doubt. The father points to the lack of family support in the Geelong area. The father has offered to pay the mother $300 per week to pay for her accommodation in Sydney but only on the basis that he not be required to pay further air fares. There was no real evidence before me and it is not the father’s case that he would be able to pay for his accommodation in Melbourne as well as to pay for airfares to come backwards and forwards from Sydney.
The mother asserts that she does not have the financial capacity to buy air tickets or to afford accommodation in Sydney. I discuss my conclusions on an interim basis about that in more detail later.
I expect the relative financial positions of the parties will be explored at the final hearing and will have some bearing upon what long term arrangements can be put in place between the parties.
The father makes the point that his proposal as contained in an application he filed on 14 October 2008 is in line with the general conclusion of each of Dr Q’s reports and particularly her report of 6 February 2009. On the other hand, until the morning of the interim hearing the mother had maintained a position which would not have given the children an opportunity to have a meaningful relationship with their father (it was confined to one half of each school holiday period). This was in circumstances where the mother had been alerted to the submissions the father had made in that regard.
The first primary consideration in this case, favours the father on an interim basis because I accept that, subject to further testing at a final hearing, it would be easier for the mother to stay in Sydney than for the father to stay in Melbourne.
The need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
The father does not contend that there is any risk of physical abuse, neglect or violence for the children to be with their mother. His submission is that there is consideration of substance in relation to the mother’s attitude towards the children’s relationship with their father and in written submissions, part of the transcript of an interchange between father’s counsel and Dr Q was quoted. Dr Q pointed to the fact that the mother moved away from Sydney abruptly; that she seemed to have blocked the father’s contact when T was born and she had the children baptised without informing or involving the father. Dr Q concluded that the mother was trying to exclude the father from the children’s lives. In her most recent report, Dr Q notes, without apparent departure or revision, that the mother appeared determined to limit the father’s contact with the children.
It is on this basis I accept the father’s contention that notwithstanding the limited nature of these proceedings, there is evidence to support a real concern on his part as to whether or not if he was able to go to Melbourne or establish himself in Melbourne in the short term that the mother will do things that will place the children’s relationship with him at risk.
Views expressed by the children
Dr Q records that the children have said that they like Geelong and want to stay there with their father visiting them. Dr Q does not appear to give any particular weight to those views.
Counsel for the mother concedes that given the ages of the children any expressed wishes should not carry any great deal of weight.
Relationships
There does not seem to be any issue that the children have loving relationships with both parents. It appears from the material that the children’s relationship with their father was limited after the separation in August 2004 and interrupted as a consequence of the mother’s move to Victoria and various allegations raised by the mother. Dr Q has said that the children have a more secure attachment with their father but it is not a matter of contest, that the children have formed a close and secure attachment to both their parents.
It is the father’s case that J has a good bond with the children. The mother makes the submission that if that is so that bond would not be broken if J were to continue to not see the children on a regular basis. The mother points to the fact that J will be 13 years of age in April this year; there is a significant age difference between him and the children; he is getting to an age where he would have his own friends away from the house and his interests would not coincide with that of the children.
An issue raised before me was the amount of time that J has recently been spending in the father’s household and I deal with that issue below in the context of looking at the practical difficulty of care arrangements.
The father in his recent affidavit indicates that J has been suffering behavioural issues. He has also spoken to Dr Q about those matters. The mother points to evidence of injuries, upon which she now places a sinister connotation having regard to information in J’s school reports pointing to him acting as a bully at school. The mother has given no evidence however of the children saying anything to her about J hurting them. There is no reason to doubt that the children have a good relationship with J. Notwithstanding the assertions made by counsel for the mother at the commencement of submissions, counsel for the mother sought to withdraw any assertion that there was an inconsistency between the sworn evidence of the father and material contained in J’s school records.
It is part of the mother’s case that the children need an opportunity to be with her in Geelong in order to continue to establish and maintain an attachment between them and their step-sister Z. The mother submits that there would be a real risk that the children would miss their baby sister and would have difficulty in bonding with her if they were separated from her during the time leading up to the determination of these proceedings on a final basis. The mother asserts that the children are very attached to the new baby and enjoy their role as older siblings. I have no doubt this is true but given the age of the baby and when it is likely she will be establishing significant attachments, I do not think that anything I do on an interim basis will cause major damage to the ability of the children to form a long term attachment with their step-sister.
However, on the mother’s alternate proposal, she would be living in Sydney with Z and having the children with her on a week about basis. The mother raised no impediment, in her alternate proposal, to coming to Sydney (such as some objection by the father of Z) and it seems on her case (if the father had the financial capacity to meet the conditions that she has set) she would be prepared to come to Sydney.
Willingness to facilitate and encourage a close relationship with the other parent
There are many outstanding issues that fall under this heading which are incapable of determination within the scope of this hearing. There are concerns expressed by Dr Q in her reports that point towards a lack of willingness on occasions for the mother to facilitate the children’s relationship with their father.
Dr Q records in her first report that each of the parents provide a history that suggests that the other has been highly manipulative and dishonest. Dr Q suggests that if the father’s version is to be believed then it would point towards the mother having a Cluster B Personality Disorder.
Dr Q records at page 48 of her first report that it appears that the mother was determined to exclude the father from the children’s lives well before she made sexual abuse allegations (which are no longer pursued). Dr Q also however suggests it may be the father has a personality style consistent with the capacity to be persuasive and plausible in some settings but dominating and controlling in others.
When the matter was before me last January, the interim hearing proceeded on the basis that Justice Moore’s findings against the mother in this regard would be not challenged. Since then, as a result of the stated case of the Full Court, no reliance can be placed by the trial judge at the rehearing on any finding that was disputed. At the time of the interim hearing before me, the parties had not completed the work pursuant to direction 7 made 30 January 2009. That direction was aimed at identifying those factual findings made by Justice Moore in her Reasons for Judgment of 14 February 2007 which were not the subject of dispute. I do not have the benefit of that document and counsel for the mother said I could not rely upon anything in Justice Moore’s judgment. There is however independent material that points in the direction of the mother not being willing or unable to foster the children’s relationship with their father. Whilst I am not able to make any findings in that regard, I do find that that material points to some risk that I can take into account within the confines of an interim hearing. Counsel for the mother submitted that these matters are historical and that the mother had professional help in dealing with her attitudes of the past. The extent of her improvement will be something that will be explored at the final hearing.
There is nothing in the history however that would indicate that there is a doubt to the same degree on the father’s side regarding his willingness to foster and support the children’s relationship with their mother, although it is a matter of degree.
The mother points to the father’s unilateral decision in January 2009 to retain the children on the basis that he asserted that he was entitled to some makeup days from previous lost time in 2008. It is a reasonable inference to draw that the father’s motivation in retaining the children at that time arose out of his desire to start K in the school in which he had enrolled her. This was without the mother’s consent. The father’s frustration was brought about in part by his inability to obtain an interim decision in relation to K’s schooling before the date she was ordinarily due to start school in 2009.
The father points to the mother’s precipitous action in going to the Geelong Local Court and obtaining a recovery order from a local magistrate. No submission is made however that the mother in any significant way made a false representation to the magistrate. I accept that the mother was faced with a situation where the father had unilaterally breached the Court order and she wanted immediately do something about it and going to the Geelong Local Court was the easiest thing for her. It is unfortunate however, when this Court has been appraised of the very significant history of the matter, that the mother chose to do that. Had she come to this Court it is unlikely that the children would have been subjected to the attendance by police officers upon their home at night. Neither party’s behaviour in those days late January 2009 support the assertion that one is more child focused than the other.
The parties are involved in an unholy tug-of-war between the two children. Both parties complain of the other’s behaviour. When T broke his leg the mother took T away from Sydney at a time when it clearly was not a good idea for T to travel. Having done that however, the father seemed to disregard specialist medical advice in relation to moving T by making a court application that he be returned by plane. The mother complains that after that time the father insisted on the siblings being separated, notwithstanding the fact that she did not want to split the children. The mother also points to the fact that the father chose to have no time with the children in Geelong during the time T’s leg was in plaster.I am sure all of that will get a further airing at the re-hearing and I will leave it to the trial judge to make an assessment as to what weight these matters should be given.
An order was made in December 2007 that the mother not enrol K in any school. It seems reasonably clear from the subpoenaed material that the mother did not comply with at least the spirit of that order and that she did in fact accept an offer of enrolment for K at school. Both parties prepared K to go to school in the location where the respective parties live without having the other parent’s consent or a court order to ground an expectation that she would be able do to so. Both parties complain against the other that they had taken unilateral actions relating to enrolling the children in school or preschool.
At the conclusion of the submissions on 13 February 2009, counsel for the father raised the issue of delivery of the children for their time with their father (which was due to commence later that day). The court was informed that the children were still in Victoria and that no arrangements had been made for the maternal grandmother, who was minding the children, to bring them from Avalon (in Victoria) to Sydney. I asked that the parties go outside and sort it out. I have no doubt the mother, who had Z with her, had been stressed during the day. I note also that counsel for the mother wished to take some of the blame for the fact that the mother left the court building without attending to sorting out proper arrangements. The matter came back before me on the motion of the father so that some orders could be made to ensure that the mother’s carelessness in not making the appropriate arrangements to comply with the orders could be remedied. It is a small example of the mother’s lack of focus on properly attending to her obligations to ensure that the children spend time with the father as has been ordered.
The effect of change
K has to go to school. This means that a change has to happen. It is unfortunate that the final hearing was not able to take place prior to K starting school but that is what has happened. There is a risk no matter what I do that the change that I make by creating a situation where K can go to school will be reversed by the trial judge at the final hearing. There is nothing I can do to eliminate that risk. For that reason this factor is not of great significance in helping me to make the interim order. In the short term, change will be minimised if the parties continue a week about arrangement while K starts school.
The mother has been involved in K’s preschool and K’s kindergarten in Sydney. K has a number of friends who she has gone to preschool with who will be attending the same school as she will attend if she is placed in Sydney in the short term and T will be able to continue to attend his preschool which he has attended since February 2008. If the children live in Sydney in the short term they will have an opportunity to have time with the maternal grandfather and the maternal aunt.
Dr Q’s assessment is that the father has the capacity to sensitively manage any change the children will experience as a result of these orders.
Practical difficulty and expense in the arrangement
This is a significant matter. Both parties assert that there is considerable practical difficulty arising from the distance between Geelong and Sydney in effecting arrangements. The mother asserts that she has no financial resources available to her to enable her to pay for air travel between Sydney and Geelong and that she has no financial resources to enable her to move to a place in close proximity to the father. The father says he lacks any accommodation and family support in Geelong. The father asserts that the mother has the support of her father and sister available in Sydney. I was told from the bar table and it did not seem to be denied, that the current arrangements are that the father provides three return air tickets once a fortnight to the mother. So far as I am aware, I have no evidence before me about where the mother ordinarily resides during the week when the children are with their father in Sydney. The inferences I would draw are either:-
80.1.She remains in accommodation with her father or sister or other accommodation in Sydney; or
80.2.She buys a return air ticket back to Geelong and returns to Geelong.
This leads me to conclude that there is some spare capacity that the mother has in the event that the father pays to her an amount of $300 per week for her to organise alternate accommodation in Sydney. The father has undertaken to pay this amount upon a condition that he be repaid from the mother’s share (if any) of the net proceeds of the sale of the former matrimonial home and that he no longer be required to pay airfares.
The mother asserts in her submissions that she had no money to pay for return air fares during the period of her pregnancy. I infer from this that she may not have travelled back to Geelong during the week that the children were with their father in Sydney.
The father asserts that his difficulty in going to Geelong arises firstly from his commitment to J and secondly from his employment. In response, counsel for the mother points to documents produced under subpoena. I now consider those matters in more detail.
The father’s care of J
The mother gives evidence that the children have made statements to her that would lead her to believe that J has not been an ordinary member of the father’s household since mid 2007.
The mother relied upon records from J’s school. These records have information that is new and had not been fully disclosed by the father.
The first thing to take from the school records is that J has been having significant problems during 2008. A counsellor’s note dated 25 November 2008 indicated that in 2007 J had been placed on a behaviour contract after bullying/ behaviour issues and that during 2008 he attended four counselling sessions after teachers observed a “pattern of lying, manipulation, cruelty to others”. There are a number of notes in the middle of 2008 pointing to J’s disruptive behaviour. A note indicates that the father and J’s mother took the decision to move him into boarding school in about March 2008.
There is a note indicating that J “sackwhacked” (slapped in the testicles) a pupil during class causing that boy to roll and writhe on the floor. This happened in August 2008. J was placed in BE School (a special school for children with behavioural disorders) for 19 days.
J was seen by Dr WO, who subsequently wrote a report in July 2008. There are some disturbing aspects to that report which will be explored more fully at a final hearing. J did, however, say to Dr WO that whilst he has behaved aggressively and inappropriately to others, “he would never treat anyone he loved the way he has treated other students and some teachers”. It will be important at the final hearing for Dr Q to express some view about J’s current behavioural problems (in the context of her having the school records including any updating material from the school).
The second issue that arises out of the school records is the question as to where J has actually been living during 2008. One file note purporting to be a conversation with the father indicated that he said that J had been living with his mother since February 2008. Another email from the father dated 10 June 2008 confirms that J had been living with his mother once the father began to be firmer in relation to J’s behaviour. A file note of a phone conversation with Joe, the school counsellor at BE School, on 20 November 2008 records that J has not been having contact with his father and that that was his father’s decision.
Counsel for the mother also points to a communication to the school from the father which requests that his communications with the school about J be kept confidential.
There is accordingly a significant question as to whether or not the father needs to remain in Sydney because J is living with him. That may not be currently so and I am unclear on the material that has been filed by the father as to what he says about that. It is however clear that J has had significant behavioural problems at school during 2008 and that the father has been involved in attempting to manage those problems. It may be at the final hearing, even if J is not living with him, he will assert that he needs to be in Sydney to assist J with the problems that he is currently having.
On the material I have seen, there is no basis for an absolute prohibition in respect of J coming into contact with the two children as sought by the mother. I am confident, after having read the material, that the father is more than aware of J’s current problems and would be vigilant in relation to any problem that J may pose for K and T. I am of the view that the order proposed by the father in relation to J is a more appropriate one than the order proposed by the mother.
The father’s financial capacity
The second part of the subpoenaed material relied upon by the mother are documents produced from the Child Support Agency. Those documents indicate that in July 2008 the father told a Child Support Review Officer that the father, through his company, had regular income of about $500 per month from his work for an airline with other regular amounts of income available only when he was offered work by F Company. The father likened his position to that of an actor who spent a long time earning little between assignments.
The mother asserts that the father has the capacity to continue to service a $300,000 mortgage on the jointly owned property at V and that the father has entered into negotiations with the mother’s creditors to buy her share of the matrimonial home, in circumstances where previous applications by him to buy her share in the home had been refused.The mother complains that the father has not complied with an order for the sale of the matrimonial home. It seems however that even if that sale took place, the mother’s financial position would not significantly improve, as I was told by her counsel it is not expected that she will receive anything from her share of the proceeds of the sale once her debts are paid.
The mother pointed to the last financial statement filed by the husband on 27 January 2006 which indicated that the father’s total average weekly income was $485. That financial statement shows that expenses paid by others for the father’s benefit was nil. His evidence however is that he supplements his limited income by money received from friends. The mother makes the submission that borrowing from friends and family as a method of the father supporting his living expenses is not viable on a long term basis. I have no doubt that there will be some exploration at the final hearing as to whether or not it would be possible for the father to live in Geelong or in the Melbourne area to obtain work if in fact it is the case that he is no longer J’s primary carer. For the purposes of this interim hearing however, I accept that the father in the short term needs to remain in Sydney in order to work and in order to deal with any problems J currently has.
I accept on its face the father’s assertion he has the capacity to pay the mother $300 per week towards the mother’s accommodation in Sydney, if he does not have to pay for three return tickets to Victoria each fortnight.
Capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs and the attitude to the responsibilities of parenthood demonstrated by the parents
Neither parent raises any issue about the other’s capacity to attend to the children’s physical and educational needs. They have both done so on a week about basis during 2008. The father however raises as part of his case his concern as to the mother’s capacity to attend to the children’s emotional needs, especially in relation to encouraging the relationship with their father.
Counsel for the mother sought to minimise the evidence that might lead to the view that there was some risk that the children might become alienated from their father over time should the mother’s attitudes continue. Counsel for the mother submitted that the evidence is that she has improved with the aid of counselling in recent times. Counsel for the mother submits that Dr Q’s most recent report indicates improvements in the mother’s emotional stability. That is a matter that will be explored more fully at the final hearing, but until it is, there are reasonable questions to be explored in relation to the mother’s provision for the children’s emotional needs.
There is nothing in Dr Q’s reports that would indicate that the father has demonstrated he lacks the capacity to meet the children’s needs in all respects.
Family violence and family violence orders
Previous allegations have been made by the mother of violence and intimidation and the father asserts these are unretracted allegations. It seems those allegations will not be the subject of any attention at the rehearing except in the context of an inquiry as to whether or not previous allegations have been maliciously made. Since the initial hearing there have been no further allegations by either party.
Making an order that would be the least likely to lead to the institution of further proceedings
It seems inevitable that a final re-hearing will be required in this matter and consequently this factor is not one that I need to consider.
Other facts and circumstances
The mother points to the fact that she was the primary care giver of the children up until Moore J’s decision. She has lived in Victoria since K was about 11 months of age. The mother concedes in submissions that she has been the subject of adverse criticism in the past but says she has taken steps to address those issues and the effect of those steps have been acknowledged in Dr Q’s most recent report. The mother asserts that the father has been involved in behaviour to secure forensic and financial advantage. It is clear that money that could have otherwise been better spent on looking after the children has been spent on this litigation and moving the children between the parties on a weekly basis. It seems reasonably apparent that both parties have had an eye on forensic advantage whilst they await a final hearing.
When the father saw Dr Q in January 2009, he said he was “bewildered” by the fact that the mother got pregnant in March 2008 when an order had been made in May 2007 that she relocate. The mother’s partner did not attend for the assessment, even though he was supposed to. Dr Q records that the father “wonders if the pregnancy was to avoid relocating”.
The mother for her part asserted that the father made an application for a hearing date that was the week that Z was due and that she believed “that must have been strategic; he knew the due date”.
Whether or not these views are maintained and whether or not these views have any substance will be a matter for further exploration at a final hearing.
SECTION 65DAA
There is an interim order for equal shared parental responsibility which was made 17 December 2007 and neither party seeks to interfere with it.
As a consequence, I need to consider positively the making of an equal time order or failing same, an order for significant and substantial time. I need to look at whether or not that is reasonably practicable. If the mother continues to live in Geelong and the father continues to live in Sydney then it is not.
It is an agreed fact that at the current time the parties have no ability to communicate with one another. Pursuant to s 65DAA(5) of the Act, that is a contra indicator to making an equal time order. Whilst that may be a weighty matter for the trial judge at the re-hearing to consider, given that the parties have in fact implemented a week about arrangement during 2008 I do not intend in the primary order I make to interfere with that week about arrangement at this point in time.
There is some evidence that the parties have at least communicated about issues concerning the children’s health and education. On the other hand there is evidence about the frustration arising out of telephone contact. There are allegations and counter allegations on that topic and I am unable to make any determination about those matters in the confines of this hearing.
The mother complains that the father has not paid realistic child support. It is clear that child support has been paid as assessed. It might be that a trial judge, appraised of all the information and with cross examination, makes some finding that the father could have paid more for the children but I am not in a position to do so.
There are claims by the mother that the father has failed to comply with the orders made under s 79 of the Act for the sale of the property in which the father currently resides. There are clearly substantial unresolved issues in relation to those matters including, I am told, pending Supreme Court proceedings between the mother and various creditors of the mother.
CONCLUSION
One fears for the long term emotional health of the children no matter what outcome the Court provides in relation to the pending final hearing. It is a matter in the short term of attempting to pick the lesser of two problematic proposals.
Dr Q says that it is important that the children have a stable living arrangement with one parent and very generous contact with the other.
The mother argues that the most convenient arrangement would be to allow her to stay in Melbourne with the children and her baby.
The mother concedes however in her alternate proposal that it would be feasible for her to live in Sydney with the baby on a week about basis with the children if proper accommodation was provided. I conclude that there is some reasonable possibility that the mother would be able to live in Sydney in the circumstances where the father provided her with $300 per week on an interim basis.
I am concerned about the suggestions that have been made in the past by Dr Q that the mother has demonstrated a determination to exclude the father from the children’s lives, which in the past has included the use of sexual abuse allegations. It is in the best interests of the children for them to have a continuing relationship with both their parents. In the short term that is more likely to be achieved if the children’s time with their father is secured and in turn that is best likely to be achieved if they live in Sydney until the final hearing. Accordingly, K should commence school at M Catholic School.
The mother will have the option of coming to Sydney on the basis that the father pay her $300 per week towards her accommodation costs, but in the event she is unable to do so in circumstances where she can punctionally attend M Catholic School on the week that she has K during school term, then alternate orders will be made to facilitate her time with the children if she remains in Melbourne.
If the mother lives with the children in Sydney, she should be able to return to Melbourne on two occasions during school term (if she is able to fund the cost of the flights) and block periods during the school holidays (with the father paying for that travel).
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 19.2.2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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