Klein & Hartmann

[2020] FCCA 3585

FEDERAL CIRCUIT COURT OF AUSTRALIA

Klein & Hartmann [2020] FCCA 3585

File number:	MLC 9739 of 2010
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	10 December 2020
Catchwords:	FAMILY LAW – Interim parenting – COVID-19 – where mother has relocated interstate – notorious country wide concern at rising COVID-19 numbers in Victoria – schooling –  where child is to attend school in 2021 –– school holiday arrangements.
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC, 65DAA.
Cases cited:	Goode & Goode (2006) FLC ¶93-286.
Number of paragraphs:	34
Date of hearing:	10 December 2020
Place:	Melbourne
Counsel for the Applicant:	Mr J Stanley
Solicitor for the Applicant:	T F Grundy Lawyer
Counsel for the Respondent:	Mr C Arnold
Solicitor for the Respondent:	HQ Law

Table of Corrections
27 January 2021	The catchwords have been amended from “notorious country wide concern at visiting numbers” to read “notorious country wide concern at rising COVID-19 numbers in Victoria”.

ORDERS

MLC 9739 of 2010
BETWEEN:	MS KLEIN Applicant
AND:	MR HARTMANN Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	10 DECEMBER 2020

THE COURT ORDERS THAT:

1.The parties have equal shared parental responsibility for X born 2007 ('X').

2.X live with the Mother.

3.X live with the Father as follows;

3.1Until 19 December 2020.

3.2From 9 January 2020 until 27 January 2020.

3.3During the 2021 school term until further Order:-

3.3.1For the first weekend in March 2021 from Friday evening until Sunday evening with the commencement and conclusion of such time to coincide with the flights upon which X will travel.  The costs of such flights be borne by the Mother.

3.3.2For 12 days during the first term Easter School holiday period from 2 April until 14 April 2021

3.4At such further and other times as agreed between the parties.

4.X communicate Via telephone or videocall with each parent for a minimum of three times per week and failing agreement on Tuesday, Thursday and Sunday. 

5.X be enrolled and attend at School A, for the commencement of the 2021 school year.

6.For the purposes of changeover that this occur by agreement and failing agreement at 11:00am on the nominated days as provided in these Orders at the Suburb B McDonalds car park.

7.The parties and X attend upon an agreed Family Consultant, for the purposes of the preparation of a private Family Report and for the purposes of such report:-

(a)the costs of the report are to be met equally by the parties; and

(b)Both parties do all things necessary to ensure that X is made available for the interviews and observations

8.The proceedings be adjourned to 26 April 2021 at 10.00am for Final Hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Melbourne.

9.The matter be listed for a compliance mention by telephone on 16 April 2021 at 9.30am.

10.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

11.The Applicant file and serve any Amended Application, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 56 days prior to the Final Hearing.

12.The Respondent file and serve any Amended Response, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 42 days prior to the Final Hearing.

13.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

14.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings, provided that written notice is given to the other party at the same time as filing any updating affidavit provided above.

15.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to [email protected].

16.Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and the details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached to these orders.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. These proceedings concern what to do with X (‘the child’), who was born 2007, and is aged 13. His mother, Ms Klein (‘the Mother), is aged 39, and his father, Mr Hartmann (‘the Father’), is aged 39. The Father is an entertainer and the Mother is engaged in home duties. The Mother has re-partnered with Mr A Klein. Mr A Klein and the Mother, have three children aged nine, seven, and five. I am endeavouring to and will follow sections 60CA, 60CC(1), (2), and (2)(a), and 60CC(3) of the Family Law Act 1975 (Cth) (‘the Act’).

2. In the circumstances of this interim hearing, the parties have agreed to there being an order for equal shared parental responsibility.  I will endeavour to follow the pathway in Goode & Goode (2006) FLC ¶93-286 (‘Goode & Goode’) and, in particular, paragraph [82].  The competing proposals are effectively set out in the Father's response document, which deals with the situation if the child continues to remain with him until final hearing in City C, a regional city in Victoria.  In addition to that, I have the document where, over lunchtime, the Father has provided to me the minute of the orders that he seeks in the event that the child is to live with his Mother until the final hearing.

3. The Mother's proposal is as set out in the minute of orders that I was provided with and, in addition, she sent me two minutes in addition to our application, and she concedes that, in the event the child is to remain living with his Father in City C, that the arrangements for her time with the child should be as set out in the Father's response.  I have also taken into account the outline of case.  I have taken into account the Father's affidavit, the Father's tender bundle, the Mother's affidavit, and the Mother's tender bundle, and the further exhibits that have come to be tendered in the course of the proceedings.

   ISSUES IN DISPUTE

4. What is in dispute, firstly, is the effect of the COVID-19 regime relating to in New South Wales and Victoria and the events surrounding that in June and July of 2020, and the impact upon the Mother and her family.  What is also in dispute is the effect on the child of not being reunited with his Mother and siblings in Sydney, and what is in dispute is the effect on the child of not being able to continue to live with his Father, as he has been since 3 July 2020.  It is also in dispute as to whether the Mother's relocation to Sydney, or decision to remain in Sydney, was one thrust upon her by the circumstances or whether it was a premeditated, planned matter to relocate the child's residence and in the context of distancing the Father's relationship with the child.

5. There are other uncontested matters here and there in the proceedings, but that is the substance of the main issues.  What is agreed or uncontested is that the child, who is now 13, since birth has lived predominantly with his Mother and spent time, and substantial and meaningful time, with his Father.  The time with his Father has been, during school term, by and large, most weekends, where he would spend two nights over three days with his Father, and that this continued not only from when the parties were living after separation in Melbourne, but that this continued upon the Father's relocation to City C.

6. There is a dispute as to whether he relocated to City C with the knowledge of the Mother or not, or whether he told her afterwards.  From my perspective, what is most significant about the relocation to City C is that it demonstrates that, from time to time, people have a need to live in different places.  Also, following the move to City C, it is common ground and undisputed that the Father continued to spend time, or have the child live with him, in the same roundabout pattern that he did when they were living closer together in Melbourne, and that is each or most weekends over two nights.

7. It is also agreed, or uncontested, that the child has a history of serious trouble with asthma, and I note that the parties had previously been in dispute to the point of taking court proceedings about how best to treat that asthma but the asthma was not a will o' the wisp or unconcerning event.  It is undisputed that, on occasion, it has been necessary to admit the child to hospital in regard to that asthma therapy and, on one occasion, at least, he was in intensive care.  What is also not disputed is that, throughout the life of D, E, and F, that the child has lived with that family on the other days, being the bulk of the week when he was not living with his Father.

8. Turning to the relevant matters in section 60CC(3) of the Act, I should add that this is a contest between two good parents and there is much to indicate that, historically, each has had fundamentally a positive view of the other as a parent, notwithstanding, from time to time, significant personal disagreements and antagonism. It is significant that there have not been court orders relating to the Father's time with the child, yet he has been able to maintain spending time with him on all or most weekends during school term apart from school holiday periods. That says a lot about each parent being prepared to promote the other as having a significant role in the child’s life.

9. I just want to deal with the contested issue of the premeditated move.  The Father's counsel presses upon me that, were parties able to unilaterally move as they wished, this would open the floodgates and the court would be deluged with applications where people would move first and litigate later, and then I am sure he asked me to infer relying upon a fait accompli that they have already put in place.

10. Significantly, he also says that there is substantial evidence that I should be able to find on this interim hearing that the Mother's plan to relocate to Sydney, and that is in the context of the Mother not providing sufficient evidence to demonstrate what underlay that decision, would so impact upon her attitude to the responsibilities of parenthood that that is a most significant matter that would command the exercise of my determination of what is in the child's best interests by him remaining where he is with school holiday time and the other time as set out in his minute with the Mother.  There are a number of aspects of the evidence, and I will not discuss all of them.  It may be, on final hearing, that this matter is able to be teased out and explored to a degree that will shed greater light on the controversy. 

    THE SCHOOLING DISPUTE

11. What is significant in the Father's case is that, on 23 June 2020, the Mother had enrolled the child in school, or at least had the child attend School A in Sydney, for the purpose of what has been described as a school tour and, alternatively, as a trial, and that this was done without consultation with the Father and part of a plan to have the child's residence relocated to Sydney surreptitiously.

12. The other evidence is pointed to that this was prior to the enrolment in the school on 19 July, when the child was enrolled, that was prior to the Mother telling the Father that the child would be staying in Sydney.  The Father's counsel asked me to infer that the failure to consult the Father to enrol the child in the Sydney school on 19 July before she had even told him that that was where she intended to live is a matter by which I can draw the inference that she has decided his living arrangements surreptitiously and to edge or lever, and they are my words, the Father out of the child's life or to have a smaller role in his life.

13. The other aspect that is pointed to, and it is a fairly complicated story, is the Mother's arrangements of accommodation in the middle of this year in the COVID-19 environment.  But that points to the fact that the alternative accommodation of the Suburb G (Victoria) Airbnb was cancelled on 1 July 2020 prior to the announcement of the stage 4 lockdown in Victoria on 7 July 2020.  I will not traverse all of the factual matters in that, and I expect they will be traversed at final hearing and, I should add, one of the matters is that the Mother's affidavit was entirely silent in regard to the intended holiday actually being in Country H rather than the inference that is apparent in the documents, that the holiday for the school holidays would be in Sydney.

14. The long and the short of that is that I am unable, on this interim hearing, to conclude that, in fact, the Mother has acted in a premeditated and surreptitious way to reduce the Father's role in the child's life as is contended. That does not mean that I will be unable to be persuaded on a full examination of all of the evidence on final hearing. I might add that, were I able to be persuaded of that, that would have a very considerable impact upon me at this hearing in regard to section 60CC(3)(i) of the Act, that is, the attitude to the responsibility of parenthood. What was to be inferred from the concise submissions of the Father's counsel was that the promotion of the relationship with the other parent is of profound and fundamental importance to what is in the best interests of the child, and reflected in section 60CC(3) of the Act.

15. I might add I agree entirely with that inferred submission. The promotion of the relationship with the other parent is of fundamental and significant importance for any child and, in my view, is entirely encompassed within section 60CC(3)(i) and section 60CC(2) of the Act, that is, promoting a meaningful relationship with a parent.

16. It is refreshing that I can deal with this case where we have two good parents, where the issue of having to balance the need of a child having a meaningful relationship does not have any significant need to address protecting a child from physical or psychological harm, or being exposed to abuse, neglect, or family violence, and that is notwithstanding the profound disagreements and disputes the parties have had along the way.

17. The references hereafter are a reference to 60CC(a).  I am now essentially dealing with what is (d) of paragraph [82] of Goode & Goode:

    (a)       any views expressed by the child:

18. There is evidence that the child has told his Father that he does not want to move to Sydney.  There is no other evidence.  This being an interim hearing and the circumstances of the child having a close relationship with his Father, his Father being very invested in the issue of City C or Sydney, in the circumstances, I am not prepared to place any significant weight on that assertion of what the child's view that was expressed was.  That would be assisted by the family report that will be undertaken in due course: 

    (b)      The nature of the relationship of the child with each of the child's parents and other persons:

19. For today's purposes, I find that the child has a good, excellent, and appropriate relationship with each of his parents and with each of his siblings, D, E, and F.  The other significant matter is:

    (d)      The likely effect of any changes:

20. The circumstance is that, from the agreed school holiday changeover of 3 July, the child has been with the Father since then and only spent a short time in November with his Mother.  It was not intended, on 3 July, that that would be a change of the child's residence by either the Father or the Mother.  The decision that he would be staying with his Father was made by his Father against the Mother's wishes on 29 July 2020.  Of course, the Father had not been consulted by the Mother about, (“I now intend to live in Sydney, have X live with me, and have you cut your cloth to suit me living in Sydney.”)

21. However, it is a fact that is what occurred, and that, in disagreed circumstances since 29 July 2020 when I say disagreed circumstances, I mean in circumstances where it was not agreed that the child should live in City C with his Father, that is where he has been.  The likely effect that I take into account is the effect of the child not continuing to live with his family of the Mother and his three siblings together with his stepfather.  That has been a profound change and the continuation of it would also be a profound change.

22. I do note, however, that by the sheer luck and happenstance of timing and school holidays, that we have effectively got no disagreement about what should happen until the end of the school term in Victoria, which is imminent, and that, thereafter, we have an agreement that the time should be shared during the school holidays, though in different forms.  What I am really looking at is the time of first term next year and second term until I can determine this matter at final hearing.  In terms of the right of a child to enjoy their culture, in my view, it is significant that the child has a family background, certainly on the Mother's side, of German descent and an interest in German culture and language. 

23. The Mother's proposal that the child continue in that type of school, but in Sydney, would continue the type of education that he has already had and would recognise his background, including his culture and traditions. 

24. The most significant matter is:

    (i)        the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents

25. In my view, both parents have demonstrated an admirable attitude to the responsibilities of parenthood and, up until this dispute, both parents have demonstrated that appropriately. 

    (m)     any other fact or circumstance

26. What I have is the chaos of the COVID-19 regime.  I also have into account perceptions of the COVID-19 regime.  Even prior to the lockdown, it is notorious that there was concern all over the country at the rapidly rising numbers in Victoria, and it is notorious the solace or comfort that New South Welsh men and women took in their relevant lower numbers as they then were.  I also take into account that I am able to accommodate a final hearing listing in the end of April. 

1. So they are the section 60CC(3) matters.

2. Turning, then, to the remaining matters of paragraph [82]. In terms of the presumption, it is not a matter of the presumption. The parties actually seek jointly an order for equal shared parental responsibility. In terms of 65DAA of the Act and the consequences for that, neither party seeks, nor is it practical, that there be equal time in either City C, if he lives in City C, or if he lives in Sydney. Neither party seeks, nor is it practical, for there to be substantial and significant time, whether the child lives in City C or Sydney.

   THE DECISION

3. For all of those reasons, it is my judgment that the best interests of the child will be most advanced if he is to live with his Father until 19 December, spend the Christmas school holidays shared between the two households and, thereafter, live with the Mother and the siblings in Sydney until further hearing, with the orders for time to be in accordance as the Mother presses.

4. I recognise that this will be a change in the short term immediately for the child.  It effectively will not be noticed until he starts the next school year, and I do take into account that that will be a change of school and, as I understand it, change of school wherever he would be, that is, School I in City C or School A in Sydney. 

5. However, the lesser change is going to School A in Sydney, notwithstanding that it is in Sydney and not in City C.  I might add, I have got no reason to doubt there is an excellent standard of education at both School I and School A in Sydney.  So they are the reasons that I give for the decisions that I make. 

   THE SCHOOL HOLIDAY TIME DISPUTE

6. I need to make a decision now about the school holiday difference.  I want to make it clear, if it is not already, that the matter upon which place the most weight overall is the history of the child living with his Mother and his siblings and the history of there being frequent and regular time and movement between the two households in the past.

7. The child is with his Father until 19 December and it is common ground he then goes to the Mother.  The issue is whether he is there until 2 January or the 9 January, and then whether he comes back on the 23rd or the 30th.  In my view, given the period he has been away from his Mother's household, for him to be returning on 2 January, having only got to his Mother's household on 19 December, is too short a period, and he should have until 9 January.

8. Hence, he will have had roughly 20 days of the school holidays, including over Christmas, with his Mother's household.  In my view, the start of the Father's school holiday time should be 9 January.  The 23^rd would be more than a week prior to the return of school.  In my view, it is not appropriate to leave it to the Saturday before the start of the school year in the context of changing school, and that date should be Wednesday, 27 January.  So the Father's time would be from the 9th to the 27th.  The telephone call is by agreement and such further times as may be agreed in writing between the parties.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       20 January 2021