Higgins and Higgins
[2011] FMCAfam 326
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HIGGINS & HIGGINS | [2011] FMCAfam 326 |
| FAMILY LAW – Children – interim orders – holiday – removal of children from Australia – proposed holiday in Fiji – best interests of the children – parental responsibility – views of the children – need for children’s interests to be independently represented – family report. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 68L |
| Applicant: | MS HIGGINS |
| Respondent: | MR HIGGINS |
| File Number: | SYC 5083 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 April 2011 |
| Date of Last Submission: | 5 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Marsdens Law Group |
| Solicitors for the Respondent: | Aitken Lawyers |
ORDERS
The children [Y] born [in] 1997 and [Z] born [in] 2001 are to spend time with the father from Thursday 21 April 2011 until Wednesday 27 April 2011.
The father is permitted to remove the said children [Y] born [in] 1997 and [Z] born [in] 2001 from Australia for the purpose of travelling to Fiji from 21 April 2011 until Wednesday 27 April 2011.
The father must return the children [Y] and [Z] to Australia by 27 April 2011.
The Registrar of the Court is to release to the father for his collection the passports for the children [Y] and [Z] for the purpose of travel to Fiji during the period referred to in Order (2) above.
The father must return the passports to the Registrar of the Court by Friday 29 April 2011.
The father must provide to the mother no later than 18 April 2011 an itinerary setting out the departure and return dates of the children, details of the flight numbers and times an address and a landline telephone number at which and upon which the children [Y] and [Z] can be contacted during the period referred to in Order (2) above.
The children [Y] and [Z] are to spend time with the mother from 11 April 2011 to 20 April 2011.
IT IS FURTHER ORDERED:
Pursuant to section 62G of the Family Law Act a family report is to be prepared by a Family Consultant and parties are to attend all interviews as maybe necessary for the purpose of preparing the Report. Issues to include relationship of the children with the mother and father, any psychological issues and any other matters considered relevant.
Pursuant to section 68L of the Family Law Act the children [Y] born [in] 1997 and [Z] born [in] 2001 are to be independently represented and the Court requests Legal Aid NSW to arrange such representation.
Parties are to forward to Legal Aid NSW copies of all pleadings filed in this matter to date to the Independent Children’s Lawyer when appointed.
The application is adjourned to Thursday 5 May 2011 for further mention at 2:15pm.
IT IS NOTED that publication of this judgment under the pseudonym Higgins & Higgins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5083 of 2010
| MS HIGGINS |
Applicant
And
| MR HIGGINS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an interim application about a limited issue, and that is not to diminish the importance of that issue in any way, because it is clearly a matter of great concern to the parties. There is a clash of holiday arrangements. It relates to the forthcoming Easter break, which is a slightly longer break than Easter normally is due to the addition of Anzac day, which coincides with Easter Monday leaving us with an additional public holiday. The father has arranged to take the parties’ two boys, [Y] and [Z], to Fiji for a holiday over that period of time. The mother had made arrangements to take the children camping at [W] over that same time.
The parties have set out in their affidavits the circumstances as to how this clash of arrangements took place. It boils down to the fact that there is a profound lack of communication between the parties. It is regrettable, because the relationship between the parties seems to have deteriorated since they were first before the court. Indeed, it seems to have deteriorated since the parties attended a child dispute conference with a family consultant on 17 September last year.
The family consultant memorandum to the court showed that the parties had virtually agreed on everything – parental responsibility, with whom the children live, with whom the children spend time and communicate, and other matters. The family consultant set out some details of what they have agreed upon: the current interim arrangement, Mother’s Day, Father’s Day, children’s birthday, September school holidays, shared mid-year school holidays, Greek Orthodox Easter, which this year coincides with Easter in the mainstream community, school holidays, weekends, Christmas Eve. It is noteworthy that the family consultant said:
It is noted the father flagged the possibility that he may holiday with the children out of state or possibly Fiji during the forthcoming Christmas holidays in the weeks the children are already scheduled to be in his care. He will inform the mother of any plans once they are confirmed.
One would have thought that, in the light of all of this substantial agreement, that the parties were well on their way to agreeing about parenting on a final basis. Regrettably, that is not the case. The situation has deteriorated so that the children now seem to be divided between the parents. There was an incident involving the father, the mother and the child [X], who is the eldest child of the parties. Unfortunately, that incident appeared to be of such seriousness that the police became involved, that an application has been made for an apprehended violence order, and indeed, there is an interim apprehended domestic violence order in force.
Annexed to the affidavit of the father, sworn on 31 March 2011, is a copy of a page of the police fact sheet setting out details of what the police say was the incident involving extreme verbal abuse and resulting in the child leaving, packing a bag and leaving. There is, annexed to the affidavit, a copy of the interim order made against the father naming the mother and [X] as protected persons.
There have been further developments also in respect of the child [Y], who is the older one of the two boys. He is the middle child. The situation with him is that the father is saying that he is refusing to continue to live with the mother, and the mother is expressing concern that [Y] is being manipulated, and indeed, there has been an accusation that the father, in taking the boys or wanting to take the boys but not [X] to Fiji, is, in effect, seeking to buy the children’s approval. The mother seeks an order that [Y] should return to live with her where he had been living.
I am satisfied that the rift that has developed between the children and the parents is a matter of great concern. It appears that [X] is now, and one hopes it is only temporarily, estranged from her father, and that [Y] may be estranged from his mother, although that is something which the mother, in her affidavit, denies. [Z], the youngest child, appears to be on one side, but it is quite clear that these events must be having an effect on him.
Ms Youseff, in her submissions to the Court, raised the question that it could appear that one party or the other was winning, which was, in her submission, an undesirable concept. I agree. The comment that I would make is that parents, who appeared to have arranged a sensible set of arrangements to their children last September, have now found themselves in the situation where [X] is estranged from her father and living with her mother, [Y] may or may not be estranged from his mother, and saying that he wants to stay and live with the father, and [Z], presumably, is watching these developments in a state of some concern and confusion.
Neither parent should see this dysfunctional situation as a win. It is an extremely unfortunate state of affairs, and it needs to be repaired, and it needs to be done in the near future, before the parties’ positions become so entrenched that there is a permanent rift between the sister on the one side and her two brothers on the other, between the daughter and her father, and between [Y], at least, and his mother. It is regrettable that the family finds itself in the situation that it does.
When the matter was before the court on 4 April, I directed that the parties should attend a child-inclusive child dispute conference. Indeed, the solicitors for the parties did not object to that; for the moment, quite the reverse, in fact. It is certainly important that the Court has some independent evidence about the views of the two older children. [Z] is certainly younger than the other two, and whatever views he may have could not, because of his level of maturity, be given the same weight. That is not to say that either of the older children should be in a position to “call the shots” as far as her or his relationship with their parents are concerned.
I acceded to the joint application by the parties’ lawyers that there was a need for an interim hearing to be held at quite short notice, and the matter was adjourned until the afternoon of Tuesday 5 April. What happened was that the parties entered into interim consent orders on that day, staying the interim orders made on 6 September 2010 in respect of certain financial matters, but more relevantly here, vacating order 9 made on 6 September and inserting a new order 9 that said:
That [X] born [in] 1995 live with the mother. That, pending the interim ADVO outcome, that [X] spend time with the father in accordance to her wishes.
There were also orders about the children’s passports, which are relevant to the matter that needs to be decided. The application for the parenting orders, and for that matter, property orders, is listed for hearing on 4 and 5 August 2011. The child-inclusive child dispute conference has been scheduled for 9 am on 5 May. I would be reluctant to make any orders with any long-term effect, in respect of [Y] in particular, until after that child-inclusive child dispute conference has taken place and a memorandum is obtained from the family consultant, which will no doubt provide assistance to the court and to the parties’ lawyers and, one hopes, for the parties themselves.
What this means is that, at this stage, I am not disposed to make order 1 proposed by the father in the minute on 5 April, vacating earlier interim orders and providing that [Y] should live with the father, and that the mother should spend time with [Y] in accordance with [Y]’s wishes. That application, I think, can be revisited once the Court has more information. Knowing as we do that the parties have this conference on 5 May, I am of the belief that it can safely be left until after that stage, and a decision can be had then if necessary.
There were also other issues discussed at the interim hearing on 5 April. They both related to the future progress of this matter. One related to the obtaining of an independent children’s lawyer to represent the children’s interests. This was supported by the father, but some reservations were expressed by Ms Youseff, who appeared for the mother, as to the utility of that course.
The other issue related to the provision of a family report for the purpose of the proceedings in early August. Initially, when the matter was listed for final hearing, it was not thought necessary, and indeed, there was some optimism on the part of the parties’ legal advisors that the parenting issues may indeed resolve by means of consent orders. Neither one of them could have envisaged such a deterioration in the matters relating to the children’s relationship with their various parents, as has eventuated.
In the light of this situation, it appears clear to me that it is necessary for the court to obtain a family report under the provisions of section 62G of the Act, and I propose to make that order today. I am persuaded that the situation relating to the children and their estrangements is so dire that having their interests independently represented will be of benefit, and I propose to make that order. That leaves the issue of some urgency, namely the plans for Easter, and the parties have clashing plans for Easter.
As I have said, the father has plans to take the boys to Fiji. Obviously, he cannot take [X] due to the operation of the interim apprehended domestic violence order, where he is the defendant bound by the orders and [X] is one of the protected persons. With the best will in the world, it would be hard to see how, certainly in the context of the situation between the children’s parents as it now is, that the father and the daughter going away with the other children on a holiday together with this apprehended violence order in force could hardly be seen as a favourable decision.
I note from the interim order annexed to the father’s affidavit that the parties are next to attend the Local Court at [omitted] in respect of this matter at 9:30 am on 8 August. That, unfortunately, is after 4 and 5 August, when the matter is listed for final hearing before me. That is unfortunate, but that is something that the Court will need to bear in mind. In respect of the Fiji trip with [Y] and [Z] that the father proposes, his argument is that he had always flagged this, at least since September 2010. He had been planning to do it over the Christmas/January school holidays, but that was not the case.
He was of the belief that he would be able to take the children at Easter, and because of the pressure of time in making bookings at what is a fairly popular time for holidays – and I make that comment because I think it is a matter of general public knowledge rather than a matter of specific evidence – that he made the bookings at a time when he had not received from the mother a clear indication that she was comfortable with that arrangement. Certainly, the father has said that there were limited places, and it is certainly the case that the communication between the parties has deteriorated greatly; they are not communicating at all well.
Indeed, what the mother has said is that, virtually, at about that time, she had arranged leave, and she says that the only time that she can get this leave from her employment is, indeed, over that same Easter break, and she had made arrangements to take the children to [W]; camping at [W] is the proposed arrangement. So there are competing proposals.
The mother’s solicitor, Ms Youseff, made a most eloquent and telling submission on behalf of her client that it was her client’s perception that the father was acting in this way, first, in an attempt to buy the boys’ affection, in that he has, apparently, the funds to afford the $10,000 odd that the trip will cost, and but that he also has time available to him when he can more readily take holidays because of the fact that he is self-employed. The mother, of course, is not self-employed, and time that she can take holidays is subject, at least in part, to the directions of her employer.
The concern was also raised that the father taking the boys to Fiji but not [X] could be seen as a way of punishing [X] for her rift with the father. Perceptions in this matter are certainly important and, with the emotional perspective that each parent has in respect of the other, and the poor communication between them, it is not hard to understand how they would perceive those actions to take place. The court is not in a position to make factual findings about that because no evidence has been taken.
The mother has deposed in her affidavits that [Y] has not exhibited signs that he is completely estranged from her. She refers to text messages that she has received, some of which she quotes in paragraph 26 of her affidavit of 4 April, where [Y] says words such as:
Mum, I do miss you.
Or:
Okay, love you too. Good night.
And:
You too. Love you too!!
She expresses her view in that same paragraph that [Y] is behaving in the way that he appears to be to obtain his father’s approval. She certainly deposes to having received text messages from [Y] on 12 March relating to the proposed Fiji trip and, in particular, [Z]’s participation. Paragraph 16 of her affidavit, she says that she received a few messages from [Y] on 12 March 2011, as follows, and she quotes him as saying:
No, we need him. Dad let you have us last time when it was his turn. Now you have to let him come with us.
Further, she quotes [Y] as saying:
He needs to come. It’s to Fiji. It’s not like Queensland or Canberra, it’s Fiji.
And finally:
Come on!! Let [Z] come.
The mother perceives that the father is manipulating [Y] and using him as a means of persuading her, and she expressed concern about it. As I said, the court cannot make factual findings at an interim hearing, because all of these things need to be tested by evidence, and in my view there needs to be independent evidence. For that reason, I do consider it necessary that, in the long run, there be a child-inclusive child dispute conference, that there should be a family report, and that the children’s interests should be independently represented.
However, Easter will soon be upon us. The father wishes to take the boys out of Australia to Fiji on the 21st of this month, and bring them back on the Wednesday the 27th. The mother, of course, has made arrangements to take the children camping at [W] during that same time, which is when she has leave. The parents see this matter through the prism of their own involvement and emotions, and their lack of communication with each other.
The Court is required by section 60CA of the Family Law Act to regard the best interests of the children as the paramount of consideration. Section 60CC of the Act sets out primary considerations in subsection 2 and additional considerations in subsection 3. Not all of them are relevant, although the existence of an apprehended domestic violence order, under subsection 60CC(3) is certainly relevant. The relationship between the children and the parents, and the importance of the children having a meaningful relationship with each parent is clearly important, clearly relevant.
Of course, in making any orders on an interim basis, the court is still required under section 61DA to consider equal shared parental responsibility, and if such as order is made, the Court must look at substantial and significant time or equal time between the parents. To my mind, all of those considerations are not relevant with the discrete issue that the court has to consider today. I do not propose to change the arrangements about equal shared parental responsibility; they can remain as they are.
I am not making parenting orders that will have a long-term effect on the children living with a parent or spending time with a parent. As I have said, I wish to wait until I have independent information, until or before I make any orders changing the arrangements. I note that the parties have agreed, in respect of [X], to vary the orders, which is a sensible proposal, but that is very much governed by the existence of the apprehended domestic violence order. It is a pragmatic consideration.
What the Court has to consider is what is in the best interests of the children in the immediate future, and how the Easter holiday plans will affect the children’s relationship with each parent. Clearly, [X] cannot be part of any holiday to Fiji for reasons that I have set out, and the boys wish to go, which is hardly surprising. On the one hand, they are being presented with a trip to Fiji; on the other, they are being presented with camping at [W]. It is perhaps not surprising that they would prefer the former option.
Indeed, looking again at the text messages sent by [Y] as reported in the mother’s affidavit in paragraph 16, it is clear that [Y] is seriously attempting to persuade his mother to let [Z] go on holiday in Fiji with him and with his father, because the three text messages all refer to [Y]’s desire, on the assumption that he is definitely going to Fiji, to have his brother travel with him.
In reading all the material relating to these parents and these children, [Y]’s entreaties to his mother on behalf of his brother, saying:
Come on!! Let [Z] come.
holds out the only positive piece of information that the Court has. If nothing else, the Court can take [Y]’s entreaties to his mother as a sign that he and his younger brother still have a strong and positive relationship with each other, because [Y] is arguing his younger brother’s case. I regret to say that that is the only bright spot that I can currently see in the current situation.
This gets back to the submission that was put by Ms Youseff that a decision about the holidays is going to be seen as a win by the father if the children go to Fiji, or it could be seen as a win by the mother if the children do not go to Fiji but go camping with her. My view is that there are no winners in this. It is regrettable that this misunderstanding has occurred. It offers a clear lesson to the parties for the future about timely, appropriate and civil communication about the interests of their children and their plans for their children.
I am satisfied that it is in the best interests of [Y] and [Z] to travel on the holiday to Fiji with their father. The concern that must be seen is that, if the boys do not go, there is a strong possibility that they would see the court’s refusal to let them go as a decision by their mother that they should not go, which could cause a considerable degree of resentment by the boys towards their mother and could increase whatever rift that there is, and I can make no factual finding on that, but whatever rift that there is between [Y] and his mother. That would be most undesirable.
The parties should be working towards an arrangement where the children have a meaningful relationship with each parent, because the court is strongly of the view, and it is reinforced by the Family Law Act, that that is in their best interests.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 11 April 2011
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