KAGAN & EARLE - [2013] FMCAfam 88

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAGAN & EARLE

[2013] FMCAfam 88

FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – views of the child – substantial and significant time – occasions of particular significance to the child – occasions of special significance to the child’s parents.

COSTS – Application for costs – financial circumstances of the parties considered.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 62G, 65DAA, 69ZV, 117

Applicant:

MS KAGAN

Respondent:

MR EARLE

File Number:

SYC 704 of 2007

Judgment of:

Scarlett FM

Hearing date:

1 February 2013

Date of Last Submission:

1 February 2013

Delivered at:

Sydney

Delivered on:

1 February 2013

REPRESENTATION

Counsel for the Applicant:

Ms Petrie (appeared pro bono)

Solicitors for the Applicant:

Blackman Legal Pty Ltd Lawyers (acted pro bono)

Solicitor for the Respondent:

Mrs Tanner

Solicitors for the Respondent:

Slater & Gordon Lawyers

Independent Children’s Lawyer:

Ms Youseff

Solicitors for the Independent Children’s Lawyer:

Rafton Family Lawyers

ORDERS

UNTIL FURTHER ORDER:

The Orders made by consent on 3 September 2012 are vacated.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child [X] born [in] 2004.
The child [X] is to live with the Respondent Father.
The child [X] is to spend time with the Mother as follows:
(a)During the school term for three (3) weekends each term as agreed but failing agreement on the third (3^rd) and fifth (5^th) and seventh (7^th) weekend of each term PROVIDED THAT:
(i)one of the weekends in the second school term must be the weekend during which Mother’s Day falls; and
(ii)the three weekends in the third school term must not include the weekend during which Father’s Day falls;
(b)For ten (10) days during the Autumn, Winter and Spring school holiday periods as agreed but failing agreement from the first Saturday of the school holiday for a period of ten (10) days:
(c)Via telephone each day at 6:30pm with the exception of Tuesdays other than the child’s birthday with the mother to ring the Father’s mobile telephone and the father to facilitate the call with the child; and
(d)At such other times as the parties shall agree.
The child’s time with the Mother in accordance with Order (4)(a) and (4)(b) is to be facilitated by:
(a)The child being booked on a Virgin flight leaving [C] at 4:20pm when time with the Mother is to commence;
(b)The child is to be booked on a Qantas flight leaving Sydney at 6:45pm when the child is to return to [C] at the conclusion of the time with the Mother;
(c)The Father is to be responsible for booking and paying for the child’s flights between [C] and Sydney and the return flight from Sydney to [C];
(d)In the event that the above flights are not available the Father must book the child on the closest available flight.
The Father must provide the Mother with not less than seven (7) days’ prior notice of proof of purchase of the flights being booked and provide a copy of the child’s itinerary.
The Mother and father are restrained from discussing these proceedings including discussions about the child’s wishes with the child or in the presence or hearing of the child.
The Mother and Father are restrained from criticising or denigrating the other parent or other extended family members in the presence or hearing of the child.
Both parents must use their best endeavours to ensure that the child’s homework is completed and that any school assignments or projects are completed in a timely manner whilst the child is in their care.
The Father is restrained from allowing the child to drive any motorised vehicles or any farm machinery whilst the child is in his care.
Each party shall:
(a)keep the other advised at all times of their residential address and residential telephone number and emergency contact telephone number;
(b)notify the other party if going on holiday outside their usual place of residence and provide a contact telephone number; and
(c)be entitled to telephone and speak to the child at all reasonable times and with reasonable frequency.
The Father is to arrange for the child [X] to attend a groupwork program for children experiencing high conflict at Interrelate [C] or similar program as recommended by Interrelate.
Leave is granted to the Father’s solicitor to release a copy of the Family Consultant Memorandum dated 31^st January 2013 to Interrelate [C] for the purposes of Order (11) above.
Within two (2) working days the Father is to contact Interrelate [C] to arrange an intake for the child [X].
The Mother must return the child [X] to the care of the Father within one (1) day of the date of these Orders.
The parties are to attend upon a Family Consultant at such times and places as may be appointed by the Regional Coordinator Child Dispute Services of the Sydney Registry of this Court or her delegate for the purpose of preparation of a family report in accordance with the provisions of s.62G of the Family Law Act.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) further subpoenas.
The parties are to pay their own costs.
The Application is adjourned to Monday 20 May 2013 for mention at 10:00 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 704 of 2007

MS KAGAN

Applicant

And

MR EARLE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application to vary or discharge interim parenting orders that were made by consent on 3^rd September 2012. Those orders provided that the parties’ child [X] should live with the Father at his home on the North Coast of New South Wales and should spend time with the Mother at her home in Sydney on three weekends each school term and for periods of ten days during the school holidays.
The interim hearing was originally due to be heard on 3^rd December 2012 but, at the request of the Mother’s solicitors and with the consent of the other parties, the hearing date was administratively adjourned to 29^th January 2013.
When the matter came to Court on 29^th January, the Court was told of a significant change of circumstances, in that the Mother had retained the child in her care and had not returned him to the Father over the weekend, as had been arranged. Counsel for the Mother, Ms Petrie, tendered a psychologist’s report obtained the day before, setting out her comments on an assessment conducted on the child on 24^th January.
The report, from a Clinical Psychologist by the name of Ms C, stated that the child had said that he would like to live in [U] with his mother and spend holiday time with his father. Ms C’s conclusion and recommendations were:
From the background information and the play assessment, it is evident [X] has a primary attachment to his mother which has been disrupted since he moved to [E] to live with his father. [X] has experienced further disruption when his father re-married in December 2012 and his living arrangements changed to include [names omitted]. [X]’s responses and play material indicated he has a secure attachment to his mother and this is where he should continue to have primary custody.
It is noteworthy that the background information about the circumstances of [X] going to live with his father to which Ms C referred on the first page of her report is at considerable variance from the affidavit evidence of both parties.
The Mother claimed that she retained the child in her care because he was exhibiting signs of considerable distress at the thought of returning to his father and she felt it was in his best interests to do so.
In the circumstances, as there were no affidavits before the Court dealing with this change of circumstances and the Independent Children’s Lawyer had not had any opportunity to speak to the child, I decided to adjourn the hearing until 1^st February. Arrangements were made for the parties and the child to attend a Child Inclusive Child Dispute Conference on Thursday 31^st January.

Background

The parties met in about August 2002. They commenced living together in the Sydney suburb of [B] from August 2003 until they separated in March 2004. The Mother returned to her native South Africa in May 2004 and the child [X] was born in Cape Town on [date omitted] 2004.
The Mother returned to Australia with the child in or about August 2004 and the parties resumed cohabitation. They lived together in the house at [B] until they separated in March 2005.
The Mother returned to South Africa in August 2005 and returned to Australia in May the following year. She lived in the house at [B] until September 2006 when she moved with the child to [U].
The Court records show that the parties have had a history of litigation in both the Family Court and this Court since the Father commenced proceedings for parenting orders in the Family Court on 2^nd February 2007.
On 14^th February 2007 Loughnan JR as he then was made orders by consent restraining the parties from removing the child from Australia with the exception that the Father was permitted to take the child to New Zealand for a short period of time.
The proceedings were transferred to this Court on 10^th July 2007.
On 6^th February 2008 the parties entered into consent orders before Sexton FM providing that:
a)the parties were to have equal shared parental responsibility for the child;
b)the child was to live with the Father from Saturday morning until Monday morning each week, as well as other specified times;
c)the child was to live with the Mother from Monday morning until Saturday morning each week, as well as other specified times; and
d)the parties agreed about changeover, travel with the child, mediation or counselling, telephone communication, notifying each other about illness, injury or medical appointments, the child’s religion, non-denigration of each other, use of a communication book, occasional care and social events.
The Consent Orders contained two Notations, including Notation A:
The parties agree that these Orders will remain in place until [X] commences school in 2010.
The legal effect of this Notation is unclear. If the parties intended that the Consent Orders were to be discharged as at the date the child commenced school it would have been more appropriate to make an order to that effect rather than just to ask the Court to note a withdrawal of consent to the orders continuing after that date.
The parties entered into fresh Consent Orders in the Family Court on 14^th September 2010 providing that:
a)the parties were restrained from removing the child from Australia and it was requested that his name be placed on the Airport Watch List;
b)the Father was permitted to travel with the child to South Africa from 28^th September to 27^th October 2010;
c)the child was to live with the Father for two days a week as agreed and on other specified days;
d)the child was to live with the Mother at other times;
e)changeovers would take place at [omitted] and the Father’s residence;
f)the parties were entitled to telephone the child each day; and
g)the Father was to retain the child’s passport.
On 10^th March 2011 the parties entered into fresh Consent Orders in the Family Court. The Orders expanded on the Orders of 14^th September 2010 but provided for the Father to travel to New Zealand with the child in March and April 2011.
The Consent Orders also contained some orders made without jurisdiction permitting the parties to travel out of Australia without the child but, with jurisdiction, making arrangements for the child to be cared for by the other parent during those times.
The orders also provided for the child to attend [B] School and to remain enrolled there unless the parties agreed otherwise.
The Mother commenced proceedings for a recovery order and various parenting orders by filing an application and an affidavit in support on 8^th June 2012. The mother deposed in her affidavit of 8^th June 2012 that whilst the child was spending time with the Father in April she sent the father a text message on 21^st April 2012 saying, inter alia:
The high degree of stress I experience daily has without doubt affected my capacity to be a good mother and continue a meaningful relationship with [X]. For this reason I will no longer be acting as [X]’s primary carer. In this light please DO NOT send [X] to Sydney tomorrow because at the moment I no longer have the capacity to mother in a way that is in the best interest of our son…[1]
[1] Affidavit of Ms Kagan 8.6.2012 at paragraph [35] – a printout of this message is to be found at Annexure “A” to the father’s affidavit of 12 July 2012
It is the evidence of both parties that later that same evening the Father replied by text message saying:
[Ms Kagan]. OK I will assume the responsibility of primary carer so long as [X] goes to school in [E]. If this is agreed I will cancel my trip to New Zealand and Japan. I will do these trips when you have [X]. [Mr Earle][2].
[2] Affidavit of Ms Kagan 8.6.2012 at [36]; affidavit of Mr Earle 12.7.2012 at [10]
The return date of the Mother’s Application was 16^th July 2012. On that date the parties attended a Child Dispute Conference with a Family Consultant. No agreement was reached on the question of with whom the child should live but the parties entered into some interim Consent Orders about the child spending time with the mother on various dates.
An order was made on that date for the appointment of an Independent Children’s Lawyer.
On 3^rd September 2012 the parties consented to Interim Orders that provided that:
a)[X] should live with the Father;
b)The parties would have equal shared parental responsibility for the child;
c)The child would spend time with the Mother on various weekends; and
d)Other ancillary orders.
The proceedings were listed for interim hearing on 3^rd December 2012. At the request of the mother’s solicitors, the hearing was adjourned to 29^th January 2013.

Evidence

The Mother relied on her affidavits of 15^th January and 31^st January 2013. She also relied on the report from the Clinical Psychologist,

Ms C, dated 28^th January 2013. Ms Petrie of counsel, who appeared for the Mother, made it clear that the purpose of the report to present to the Court the child’s views.
The Father relied on three affidavits, one affirmed on 23^rd January 2013 and the other two affirmed on 31^st January 2013.
The Court also had the benefit of the Family Consultant Memorandum to Court dated 31s January 2013, dealing with the Child Inclusive Child Dispute Conference.
The Independent Children’s Lawyer, Ms Youseff, prepared a Minute of Proposed Orders and the parties’ lawyers indicated to the Court which of those proposed orders were agreed to by their respective clients. The Mother did not agree to the proposed order that the child should continue to live with the Father until further order.
It is the Mother’s evidence that whilst the child was staying with her in January he showed signs of distress and expressed strong views that he did not wish to return to [E] but stay with her in [U]. She deposed that he said:
“My life is ruined. I don’t want to live in [E] and no one is listening to me. I want to live in [U]. I want to live with you.”[3]
[3] Affidavit of Ms Kagan 31.1.2013 at [9]
The Mother also deposed that the child had cried , saying “I wish I could die”, and, on another occasion, saying that he had thought of running away from his father’s home at [E] and catching the train to Sydney.
The Mother explains her recent actions in paragraphs [16] and [17 of her affidavit:
16.On January 24 I made the decision to keep [X] in [U] with me based on my observations of his recent distress, to show [X] that his voice was being heard and because the interim hearing was on 29 January when Federal Magistrate Scarlett would be deciding [X]’s fate.
17.I also made the decision knowing that [X] was aware his father would be travelling to Sydney for the January 29 court hearing and that if [X] returned to [E] he would be left in the care of others and his anxiety at that.
The Mother’s stated reasons are puzzling, although it is clear that her decision was directed toward the interim hearing. These matters may need to be explored by cross-examination at a final hearing.
The Father set out in the larger of his affidavits of 31^st January that he has now married to a lady who has a daughter by a previous relationship.
The Father deposed that the Mother has visited [E] unannounced on several occasions and that [X] has spent time with his mother in Sydney in accordance with the interim Consent Orders.
The Father expressed concern in his affidavit that the child did not sleep in his own bed when he stays with his mother but sleeps in his mother’s bed with her. He deposed that the child had said to him:
“…I am sleeping in mum’s bed. My room is so full I can’t get to any of my stuff”.[4]
[4] Affidavit of Mr Earle 31.1.2013 at [57]
The Father explained that the Mother had stored excess items from the [B] School Fete that were given to her when they did not sell. He deposed that [X] has told him that those items are now stored in what was his bedroom.
The Family Consultant noted the Father’s concerns about the Mother’s mental health, as he claims that she is emotionally unwell and puts emotional pressure on the child. He claims she is emotionally dependent on the child.
The Mother was reported as saying that [X] had shown significant signs of distress about having to live with his father and she complained that the Father had not provided the child with adequate care, educational support or supervision.
The Family Consultant reported [X] as being sad that his parents are in dispute about which of them he should live with. He said that it was boring and annoying living with his father who was really strict. He complained of learning nothing at [E] school and that [B] was better. He described his new stepmother as mean and strict and described his new stepsister as his “arch enemy”.
[X] said that he would be happy if he were to live with his mother because living with her was “fun”. He said he would be sad if he were to live with his father.
Some of the child’s comments as reported by the Family Consultant are disturbing:
· [X] said that he does not think his father misses him much when he is with his mother but that his mother misses him a lot when he is with his father. He said that his mother knows when he has been crying when with his father as she feels pain.
· [X] said that he would be happy if he were to live with his mother and very sad if he were to live with his father because he would miss his mother. He said his mother would “cry so much” if he were to live with his father that his father would be fine if he were to live with his mother because “[name omitted] is with him”
The child’s comments as reported by the Family Consultant lead to the inference that he feels responsible for the emotional state of his parents, particularly his mother. It is not possible to make definitive finding on this point but it should be explored in a Family Report.
The Family Consultant recommended that the Court should consider the child returning to live with his father and spending regular time with his mother until final assessments can be done. The reasons for this recommendation are:
·    [X] has experienced significant changes to his life and family over the past year.
·    The Mother appears to have made decisions regarding [X] that have had significant impact on his life, changing schools, parental residence and geographic location in April 2012 and now, at this stage, missing the first few days back at school in the new year.
·    It is possible that [X] experienced grief and loss associated with moving from his mother to his father in April 2012. This experience is likely to have impacted upon [X]’s relationship with his mother and it would be expected that he would miss his mother, and be sad at times, when living with his father.
·    In terms of his emotional well being, [X] will benefit from stability in his schooling and living arrangements, feelings of emotional security and predictable time with both parents.

Submissions

The Independent Children’s Lawyer, Ms Youseff, told the Court that when she first met [X] in August he was feeling pressured and he is still feeling distressed about the conflict between his parents. The parents have to protect [X] from this litigation and shield him from their own feelings of anxiety. There have been multiple changes in this child’s life and he has missed the first three days of school.
The Mother is proposing a new school for the child at [U]. [X] has two friends at [E] and it would be better for him to go back to school at [E] rather than start a new school. The child needs stability in his life and he needs counselling.
Counsel for the Mother submitted that [X] is presently expressing a wish to live with his mother, which is a matter the Court must consider under s.60CC(3)(a) of the Family Law Act. In addition, there has been a change of circumstances in the Father’s home because the Father has now married and there is now another child in the house.
Ms Petrie told the Court that the child is co-sleeping with his mother because he has difficulty sleeping.
Mrs Tanner, the Father’s solicitor, submitted that it was in the best interests of the child to remain in [E] with his father. He is well settled at school in [E]

The Law to be Applied in Parenting Applications

When the Court is deciding whether to make a parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interest to apply the presumption.
The presumption applies when the Court is making an interim order unless the Court considers that it would not be appropriate to do so (subsection 61DA(3)).
If the Court does make a parenting order providing for a child’s parents to have equal shared parental responsibility, the Court is required to consider whether the child spending equal time with each parent is both in the best interests of the child and reasonably practicable.
If the Court does not make an equal time order, the Court is required by subsection 65DAA(2) to consider whether it would be in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of those matters have been considered in making this decision.

Conclusions

[X]’s best interests are the paramount consideration.
The parties agree that they should have equal shared parental responsibility for him, and I do not consider that it would be inappropriate to make an order to that effect.
The Mother lives in [U], one of the southern suburbs of Sydney, and the Father lives in [E], on the New South Wales North Coast. One of the matters the Court must consider is how far apart the parents live from each other (s.65DAA(5)), and the distance is such that it is not reasonably practicable for the child to spend equal time with each parent.
The tyranny of distance also casts doubt on the reasonable practicability of the child spending substantial and significant time with each parent.
The evidence shows that there is a benefit to this child of having a meaningful relationship with both parents. The Family Consultant’s observations provide evidence of that.
There are no risks of physical harm to the child from either parent. There are no issues of abuse, neglect or family violence that need to be considered.
Ms Petrie submitted for the mother that a significant issue in this case is the views of the child, as set out in s.60CC(3)(a). The views of a child are expressed in the ways set out in s.60CD(2), including by having regard to anything contained in a family report under s.62G(2) and by making an order under s.68L for the child’s interests to be independently represented by a lawyer.
The Court has the Family Consultant Memorandum and the submissions of the Independent Children’s Lawyer.
The Court may obtain the views of a child, subject to the applicable Rules of Court, by such other means as the Court thinks appropriate. The parties have each deposed in their affidavits to statements made by the child to them. This evidence is admissible under s.69ZV(2).
There is also the report from the Clinical Psychologist, Ms C, which the Mother obtained on her own initiative. I allowed the Mother to rely on this document over the objection of the Father’s solicitor.
However, the report is one obtained by the Mother to support her case. Ms C gives her conclusion and recommendations based on:
a)the background information; and
b)the play assessment.
Unfortunately, one of those two foundations, the background information, is seriously flawed. At page 1 of the report, relying on the information provided to her presumably by the Mother, Ms C says:
In April 2012 an Independent Child Lawyer recommended [X] move to [E] to live with his father, [X] said he wanted to live with his father because “he thought it would be like a holiday in [E]”.
That is not the evidence. There was no Independent Children’s Lawyer in April 2012. There were no proceedings on foot at that time. It is the evidence of both parties that the Mother texted the Father on 21^st April 2012 asking him not to return the child to her in Sydney the next day because she was no longer prepared to act as his primary carer. He agreed to retain the child in his care and cancelled his proposed overseas trips.
Ms C does not mention in the background information that the Mother consented to the Orders of 3^rd September 2012 providing that [X] would continue to live with the Father until further order, at a time when she was legally represented.
I am not persuaded that a great deal of weight should be given to the report.
The evidence appears to support the submission of the Independent Children’s Lawyer, which is supported by the Family Consultant’s recommendations, that the need for stability in this child’s life is in his best interests, which will be brought about by his returning to the care of his father and resuming school at [E].
The Mother’s proposal does not offer stability for [X]. She proposes that he should return to live in Sydney with her and start a new school at [U], which would be his third school in nine months. He attended school at [B] until April, when his mother said that his father should not return him to her in Sydney. He commenced living with his father in [E] and started at school in [E]. He could hardly have stayed at school at [B]. The Mother now proposes that he should go to another school.
The evidence is clear that all of the changes in this child’s life since April have been brought about by the actions of the Mother, with the exception of the Father’s marriage. Her latest proposal is that there should be more major changes prior to the final hearing.
I am not satisfied that the Mother’s proposals are in the child’s best interests. There needs to be a family report and I will order accordingly.
The child must return to the care of his father at this stage.
I have followed a number of the proposed orders of the Independent Children’s Lawyer, but I have specifically provided that this child should spend Mother’s Day with his mother and father’s day with his father. Substantial and significant time is defined by s.65DAA(3) and provides for the child to spend time with a parent on “occasions and events that are of particular significance to the child” and “occasions and events that are of special significance to the parent”. In my view, Mother’s Day and Father’s Day are significant both to parents and to children and it would be likely to cause unhappiness and distress to [X] if he were not with his mother on Mother’s Day or with his father on Father’s Day.
The Father seeks an order for costs. I have considered the matters required to be considered under s.117(2A) and I have come to the view that the Mother’s financial circumstances are such that she would be unable to meet a costs order, especially in the amount of $4,200.00 which is sought by the Father. It is also of relevance that the Mother, whilst not in receipt of assistance by way of legal aid provided by Legal Aid NSW, has been ably represented by a barrister who are both appearing pro bono. This is a further indication of the Mother’s financial circumstances.
It is to the credit of the Mother’s barrister and solicitor that they have provided the Mother with representation in this matter.
The parties are to pay their own costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Scarlett FM.

Associate:

Date: 4 February 2013