FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAVELOCK & STOREY | [2015] FCCA 2466 |
| Catchwords: FAMILY LAW – Long-term parenting contest – Mother seeking to relocate from region of [W] to south coast of New South Wales – relationship between children and Father strained by Mother’s unilateral cessation of their time with the Father – failure of Mother (and her partner) properly to consider impact on the children of such a relocation because of the arduous travel commitments and the impact of it on the young children – more significantly the Mother (and her partner) did not properly or adequately consider the likely adverse impact on the children by them being so removed from the relationships with their siblings (children from the Father’s later relationship) – Mother (and her partner) failed adequately to consider the likely adverse impact on the children of a move to the south coast of NSW by removing them also from their proximity to the Mother’s partner’s daughter with whom it was said the children had a close relationship – the Mother and her partner failed to consider adequately (or at all) the likely impact of proposed further parenting litigation by which the Mother’s partner seeks to secure parenting orders in relation to his daughter (who continues to live in [W], as do the children’s siblings) – restraint on the Mother relocating away from [W] region. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA(1), (2) & (5) |
| Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Morgan v Miles (2008) 38 Fam LR 275 Mulvany v Lane (2009) 41 Fam LR 418 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe (2013) 48 Fam LR 298 SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 Taylor v Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| Applicant: | MS HAVELOCK |
| Respondent: | MR STOREY |
| File Number: | CAC 224 of 2010 |
| Judgment of: | Judge Neville |
| Hearing dates: | 2 & 3 March 2015 |
| Date of Last Submission: | 25 March 2015 |
| Delivered at: | Canberra |
| Delivered on: | 4 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Siggins |
| Solicitors for the Applicant: | Mackenzie & Vardanega, Griffith, NSW |
| Solicitor/Advocate for the Respondent: | Mr S. Finch |
| Solicitors for the Respondent: | Creaghe Lisle, Wagga Wagga, NSW |
| Solicitor/Advocate for the Independent Children's Lawyer: | Ms N Dwyer |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW ([W]), NSW |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born [omitted] 2006 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) and will make a genuine effort to come to joint decisions about:
(a)The children's education.
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- AGLC
- Havelock and Storey [2015] FCCA 2466
- Case
- [2015] FCCA 2466
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate orders for the children's welfare, specifically addressing issues of parental responsibility, living arrangements, and the quantum and nature of time the children would spend with each parent. This included considering the children's education, health, religious and cultural upbringing, and communication with both parents. Furthermore, the court had to assess the impact of any proposed relocation and the capacity of each parent to facilitate a meaningful relationship between the children and the other parent.
Judge Neville's reasoning focused on the paramount consideration of the children's best interests, as stipulated by section 60CC(2)(a) of the relevant legislation. The court considered the Father's submissions, which argued that the evidence did not support findings of harm from the Father and that any residual concerns could be addressed through specific orders for courses and counselling. The Father contended that the Mother's actions had detrimentally affected his relationship with the children and that she was unwilling or unable to communicate effectively on parenting matters. The court also took into account the Father's demonstrated commitment to parenthood despite significant restrictions on his time with the children. The court noted the limited views expressed by the children, particularly the younger child, and cautioned against attaching significant weight to the older child's comments due to the limited time she had been spending with her father. The court also considered the potential benefits of increased time with the Father's family and the practical difficulties and expenses associated with the Mother's proposed relocation.
The court ordered that the parties have equal shared parental responsibility for the children, requiring them to make genuine efforts to reach joint decisions regarding the children's education, religious and cultural upbringing, and health. The children were ordered to live with the Mother, and specific arrangements were detailed for the children to spend time with the Father, including regular fortnightly periods, school holidays, and special occasions. The orders also included provisions for child-parent communication, the exchange of medical and schooling information, and injunctions restraining the Mother from changing the children's place of residence from the City of [W], and both parents from excessive alcohol consumption or illicit drug use while the children are in their care. Further orders mandated both parents to attend specific courses, and the Father to engage in mental health and drug and alcohol counselling.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for the children [X] born [omitted] 2006 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) and will make a genuine effort to come to joint decisions about:
(a) The children's education.
(b) The children's religious and cultural upbringing.
(c) The children's health, including scheduling of medical appointments.
2.
That [Y] and [X] live with the Mother.
3.
That [Y] and [X] spend time with the Father as follows:-
(a) On Sunday 8 March 2015 from 10am until 4pm,
(b) On Saturday 21st March 2015 from 5.00pm to 4.00pm Sunday 22th March and each fortnight thereafter for 6 fortnights;
(c) On Friday 28th June 2015 from the end of the school day to 4.00pm Sunday 28th June and each fortnight thereafter for 5 fortnights;
(d) On Friday 18th September 2015 from the end of the school day to the beginning of the school day on Monday 21th September and each fortnight thereafter;
SCHOOL HOLIDAYS AND SPECIAL OCCASIONS
(e) For school term holidays commencing in 2016, the children will remain in the care of the Father from the Monday of the weekend the Father would ordinarily have the children, until 5.00pm on the following Friday;
(f) Thursday 24th December 2015 (Christmas Eve) from 3.00pm until 3.00pm Friday 25th December and each alternate year thereafter;
(g) Sunday 25th December 2016 (Christmas Day) from 3.00pm until 3.00pm Monday 26th December and each alternate year thereafter;
(h) Where the first ordinary weekend visit with the Father falls on Christmas Eve or Christmas Day, that visit will remain in place with the exception that the Mother will spend time with the children either Christmas Eve or Christmas Night from 3.00pm for 24 hours, on alternate years to that described in e) and f) above;
(i) From, Friday 8th January 2016 from 4.00pm until 10.00am Friday 15th January;
(j) From Friday 6th January 2017 from 4.00pm until 10.00am Monday 16 January 2017, and thereafter each year beginning on the first ordinary weekend visit with the Father in January and ending at the end of the second ordinary visit with the Father in January;
(k) For no less than 2 hours on the children's birthdays as agreed between the parties but failing agreement from 4.00pm to 6.00pm, those dates being:
(i) a. [X] – [date omitted]
(ii) b. [Y] – [date omitted]
(l) For no less than 2 hours on the Fathers birthday as agreed between the parties but failing agreement from 4.00pm – 6.00pm;
(m) From 8.30am to 12.30pm each ANZAC Day;
(n) That the children spend at least 2 hours over the Easter long weekend with the parent they are otherwise not spending time with at time agreed between the parties and failing agreement on Easter Sunday from 4.00pm to 6.00pm.
(o) In the event that the Mother’s birthday ([date omitted]); the children’s birthdays; the children’s half siblings (born of the Mother); the Mother’s partner Mr J’s birthday ([date omitted]) falls on a day where the children are otherwise spending time with the Father, the children will spend time with the Mother for no less than 2 hours at times agreed between the parties and failing agreement from 4.00pm to 6.00pm.
(p) Changeover will take place by agreement of the parties. Failing agreement, changeover is to take place at the Father’s place of residence at the beginning of each visit, and at the Mother’s place of residence at the end of each visit, except where the Father is picking up from or dropping the children off at school.
CHILD-PARENT COMMUNICATION
4.
The party with whom the children are not living at the time may telephone or video chat with the children at all reasonable times as agreed and failing agreement on Wednesday and Friday between 5.30pm – 6.00pm and for half an hour on Christmas morning;
5.
The parties will provide means for the children to communicate freely and privately with both of their parents via appropriate electronic email/messaging applications. Neither parent will obstruct this communication or prevent the children’s access to such means, save for what would be considered reasonable limitation of the use of electronic equipment and the internet for a child.
MEDICAL INFORMATION
6.
Each parent will ensure the other is kept informed:
(a) Of any medical problems or illness suffered by the children while in their care;
(b) Of any medication that has been prescribed for the children;
(c) In the event the Father is not present when appointments are made, the Mother shall inform the Father in writing as soon as practical (writing including by email or text) of any specialists medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist in relation to the children.
(d) That the Mother do all acts and things to authorise any specialist that the children attend upon (paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist) to provide the Father with all reports by any such specialist.
7.
All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the Mother, Father and the children;
8.
Both parents be permitted to attend on such appointments.
SCHOOLING
9.
The Mother will do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time that the school forward directly to the Father copies of all the children's school reports, merit cards, any written material pertaining each child's academic and extracurricular activities;
10.
The Mother will ensure that the school(s) are aware that the Father will be picking up and dropping off the children at times, and provide them with the Father’s contact details.
INJUNCTIONS AND OTHER MATTERS
11.
The Mother is restrained and injuncted from changing the children’s place of residence from the City of [W]
12.
That without admitting the need for same, both parties are injuncted and restrained from consuming alcohol to excess or using or allowing a third party to use illicit drugs whilst the children are in their care;
13.
That the parties are hereby restrained by injunction of discussing these orders with the children or permitting anyone else to do so in the presence of the children;
14.
The Mother is restrained from using or attempting to use any surname other than the surname Storey in respect of the children either formally or informally for any purpose whatsoever.
15.
The Mother is to encourage the children at all times to refer to the Father as “Dad’ rather than “[fist name omitted]”
COURSES
16.
Both the Mother and Father are to contact Centacare [W] within seven days of these Orders and enrol in the course known as “Keeping Kids in Mind” and complete the next available course and provide each other with a copy of their certificate of completion
17.
The Father is to contact Centacare [W] within seven days of the making of these Orders and enrol in their Anger Management Course and complete the next available course and provide the Mother with a copy of his certificate of completion.
18.
The Father is to within seven days contact [K] Medical Centre to make an appointment with a general practitioner from that practice for a review of his mental health plan and obtain a referral to a drug and alcohol counsellor.
19.
The Father is to follow all recommendation of his general practitioner in this regard including any recommendations for generalist counselling. The Father is to advise the Mother’s solicitors, when he has attended that appointment and any recommendations arising.
20.
The Father has leave to provide any health professional he attends upon with a copy of these Orders and a copy of the family report prepared by Ms C dated 27 February 2015, and is to advise the Mother of the details of any person he provides the family report to.
21.
The Father is to attend upon a drug and alcohol counsellor for assessment and to advise the Mother of the outcome of this assessment.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
After summarising the issues, the evidence of the Mother and her partner (Mr J), the evidence of the Father, and of Ms C, the Father submitted as follows:1) The evidence does not support a finding that the children are currently, or will be in the future, in need of protection from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence at the hands of the Father.2) The evidence does not support a finding that there is need for supervision 3) Any residual concerns the Court may have in respect of the allegations of violence, alcohol or mental health issues can be addressed with appropriate orders requiring the Father to attend appropriate courses as identified in the orders sought by the ICL.4) It follows that the remaining primary consideration as set of in section 60CC(2)(a) applies, and the best interests of the children is to be considered in light of the benefit of them having a meaningful relationship with both of their parents.5) It is impossible to avoid the conclusion that Ms Havelock’s actions in preventing or restricting the children’s time with their father has had a detrimental effect on their relationship with him.6) As at the date of the trial Mr Storey was restricted to 6 hours of supervised time with his children per fortnight. This is comparable with the extremely limited 4½ hours per fortnight of supervised contact he had been permitted in the 2 years between June 2010 and March 2012.7) In addition, there had been significant periods where he was permitted no time at all, most significantly 11 months between January 2013 and December 2013 and the further 6 months between March 2014 and September 2014.8) The evidence demonstrates that these restrictions were placed on him at the instigation of Ms Havelock alone and that she has not in the past been amenable to facilitate reasonable time between the father and children without the imposition of unnecessary and impracticable conditions.9) The evidence is clear is that the Mother cannot or will not communicate with the Father in relation to parenting issues.10) It is submitted that the Mother’s insight into the importance of maintaining the relationship between the children and their Father is limited as demonstrated by permitting the children to call Mr J, her current partner “Dad” and refer to their father as “[first name omitted]”. 11) In all the circumstances it is submitted that the Court could not be satisfied that the Mother would be willing or able to encourage, nurture and facilitate an ongoing, meaningful relationship between the children and their Father and in those circumstances the relationship would not survive the relocation.12) On the contrary it is submitted that in order to rebuild, consolidate and develop that relationship the children need regular and consistent time with their Father. To achieve that the children should remain in a reasonable proximity to him.Additional Considerations s60CC(3)a) Views expressed by the children.There is only limited information in respect of the children’s views as set out in Ms C report at paragraph 72 to 81. [X] is 8 years of age and [Y] is 6. Ms C notes that she was unable to get a view from [Y] and in relation to [X] noted a possible suggestion of coaching and the fact that her current living arrangements have had an effect on her relationship with Mr Storey. Due to the limited time [X] had been spending with her father the Court should be cautious when attaching weight to [X]’s comments.b) Relationships with each parent and other personsThe nature of the relationship between the children and their father has been limited by the amount of time he has been permitted to spend with them over a protracted period. It is submitted that more regular and consistent time with the Father and his family will strengthen these relationships. The children have 2 half siblings, paternal grandparents and cousins. More time with these persons can only be to the children’s benefit.c) Opportunity to participate in decision making, spending time and communicating.The actions of the Mother have impeded Mr Storey’s ability in this area but it is clear that Mr Storey has been unrelenting in his resolve to be an active parent – he requires the assistance of the Court to ensure that Ms Havelock permits him to be so. (ca)Obligations to maintainMr Storey has complied with his obligations in this regard.d) Likely effect of change in circumstances including separationThe likely effect of the change the Father seeks (more time - unsupervised) is the improvement of the relationship and in the best interest of the children. This course is recommended by the report writer. The likely effect of the change sought by the Mother (relocation) will have the opposite effect in our submission.e) Practical difficulty and expense:Practical difficulties and expenses will inevitably increase under the Mother’s proposal. There will be the time and expense of travel. The Mother’s unwillingness or inability to communicate will exacerbate those difficulties. f) Capacity:The Father does not criticise the Mother’s capacity in this regard other than her reluctance to permit him being properly and significantly involved in their lives. The Father submits that he has the capacity required to provide for their needs including emotional and intellectual needs. In his evidence he demonstrated that he was able to deal with [Y]’s special needs along with those of his son with Ms S who has similar special needs.g) Maturity, sex, lifestyle and background:Not applicableh) Aboriginality etc.Not applicablei) Attitudes of the parents to the child and to the responsibilities of parenthood:With the exception of the Mother’s attempts to limit and control the children’s time with the Father no criticism is made of her attitudes. The Father has in our submission an excellent attitude demonstrating what he will do – including 6 years of litigation to ensure that he plays a role as an effective parent. He has shown commitment, fortitude and courage in carrying on in all the circumstances.j) Family violence involving the children or their family:There was one act of family violence. It should be accepted that it was behaviour completely out of character and arose in specific circumstances. Mr Storey has sought the appropriate treatment and counselling to address his behaviour. He is clearly remorseful and regrets his actions. Both Dr B and Ms C opine that it is very unlikely to be repeated.k) Any family violence order:There is an AVO in place protecting Ms S. It expires in May this year. In light of the above no inferences should be drawn adverse to Mr Storey.l) Preferable to make order that would be least likely to lead to further proceedings.These proceedings in various forms have been on foot for all of [Y]’s life and a large part of [X]’s. Clearly it would be preferable to have no more. It is difficult to make a submission as to what may happen in the future but we ask the Court to consider that if the children were in a close proximity to their Father there would be less chance of the orders being breached or the Mother being tempted to find an excuse to stop or cease time again.13) The Court is urged to refuse the application for relocation.14) The Court is not asked to make an order for equal time. The orders sought by the Father are designed to allow him to spend individual time with his children with Ms Havelock, individual time with his children with Ms S and importantly time with both so that the children can develop their relationship with their half siblings.15) The Father seeks orders as set out in his outline of case document. The Father notes that the orders sought by the ICL are similar in most respects but presses for an order providing for him to have time with the children on [A]’s and [B]’s birthdays as well, which does not appear in the orders proposed by the ICL.