Larson and Sachs and Anor
[2018] FCCA 31
•12 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LARSON & SACHS & ANOR | [2018] FCCA 31 |
| Catchwords: FAMILY LAW – Parenting – competing live with applications – relocation – children live with father – spend time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 |
| Applicant: | MR LARSON |
| First Respondent: | MS SACHS |
| Second Respondent: | MS SANDERSON |
| File Number: | DUC 298 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 14 & 15 November 2017 |
| Date of Last Submission: | 15 November 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 12 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| Appearing for the First Respondent: | In person |
| Appearing for the Second Respondent Counsel for the Independent Children's Lawyer: | In person Mr Berry |
| Solicitors for the Independent Children's Lawyer: | Kelly Hardie Solicitors |
ORDERS
All prior parenting orders are discharged.
The children [X] born (omitted) 2006, [Y] born (omitted) 2008, [Z] born (omitted) 2010 and [V] born (omitted) 2012 shall live with the father.
The father shall have sole parental responsibility for the children.
Notwithstanding the above order, the father is to notify the mother of his intention to make any major decisions in relation to the child/ren with such notification to be provided to the mother in writing by text message.
The father is permitted to relocate the children’s permanent residence to the (omitted) area.
The children shall spend time with the mother:
(a)During each school term:
(i)On the first and seventh weekends of that term from 10am Saturday to 4pm Sunday; and
(ii)On the fourth weekend of that term from 10am Saturday until 4pm Sunday provided that such time shall occur within 50kms of the (omitted) area.
(b)During the Term 1, 2 and 3 school holiday period:
(i)Commencing in 2018 and each alternate year thereafter, for the second week from 10am on the Saturday falling closest to the midpoint of the school holiday period to 4pm on the final Sunday of the holiday period; and
(ii)Commencing in 2019 and each alternate year thereafter, for the first week from the conclusion of school until 4pm on the Sunday falling the closest to the midpoint of the holiday period.
(c)During the Term 4 school holiday period:
(i)Commencing in 2018 and each alternate year thereafter, for the second half of the school holidays from the Saturday falling closest to the midpoint of the school holiday period to 4pm on the final Sunday of the holiday period; and
(ii)Commencing in 2019 and each alternate year thereafter, for the first half from the conclusion of school until 4pm on the Sunday falling closest to the midpoint of the holiday period.
(d)At such other times as agreed to in writing between the parents from time to time.
(e)Each year on the Mother’s Day weekend from 10am Saturday until 4pm on Mother’s Day.
In the event that the children are to spend time with the mother on the Father’s Day weekend pursuant to these orders then such time shall be suspended and in substitution the mother shall spend time with the children on the weekend immediately after the Father’s Day weekend from 10am Saturday until 4pm Sunday.
In order to facilitate the children spending time with the mother changeovers shall occur as follows:
(a)Until such time that the father relocates the children’s residence to the (omitted) area, changeovers occur at (omitted) Police Station with the mother or agent to collect the children from the father or his agent outside the (omitted) Police Station at the commencement of time and the mother or her agent to return the children to the father or his agent outside the (omitted) Police Station at the conclusion of time;
(b)Once the father relocates the children’s residence to the (omitted) area, changeovers occur at Town B Police Station with the mother or her agent to collect the children from the father or his agent outside Town B Police Station at the commencement of time and the mother or her agent to return the children to the father or his agent outside the Town B Police Station at the conclusion of time.
The father is restrained by injunction from leaving the children alone in the presence of the paternal grandfather.
In the event that the mother does not spend time with the children pursuant to these orders then the children shall spend that time with the maternal grandmother Ms Sanderson.
The children shall spend time with the maternal grandmother, Ms Sanderson at such times and in such places as is agreed to in writing between the father and the maternal grandmother.
In the event that the children spend time with the mother:
(a)The mother is restrained from drinking alcohol to excess while the children are in her care and shall use her best endeavours to ensure that when the children are in her care they are not exposed to any other person who have consumed alcohol to excess; and
(b)The mother is restrained from using and/or consuming any illegal substances while the children are in her care and shall use her best endeavours to ensure that when the children are in her care they are not exposed to any other persons who are under the influence of illegal substances.
The father is restrained from drinking alcohol to excess while the children are in his care and shall use his best endeavours to ensure that when the children are in his care they are not exposed to any other persons who have consumed alcohol to excess.
The father is restrained from using and/or consuming any illegal substances while the children are in his care and shall use his best endeavours to ensure that when the children are in his care they are not exposed to any other persons who are under the influence of illegal substances.
The father shall sign all documents and do all things necessary to:
(a)Authorise the school at which each of the children may from time to time attend:
(i)Furnish the mother with copies of all school reports, notices and advices concerning each of the children and any activity involving each of the children; and
(ii)Make available to the mother copies of any school photographs of each of the children at the mother’s expense.
(b)Notify the mother immediately of:
(i)Any major illness suffered by any of the children;
(ii)Any hospitalisation of any of the children; and
(iii)Make available to the mother copies of any medical reports or reports that may be sent to the father in connection with such illness or hospitalisation.
(c)Authorise:
(i)Any hospital in which any of the children may be admitted; and
(ii)Any medical practitioner under whose care any of the children may be to give such information to the mother as she may request.
Each of the parties are restrained from:
(a)Publishing or posting by any means to any web applications and accessible internet sits including but not limited to social media including but not limited to Facebook, any derogatory material or remarks in relation to the other party or causing or permitting any other person or persons so doing.
(b)Making critical or derogatory remarks in relation to the other party in the presence or hearing of any of the children or causing or permitting any other persons to do so.
Each party shall advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone numbers if applicable) and advise the other party of any changes to these details within 7 days of such change occurring.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Larson & Sachs & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
DUC 298 of 2015
| MR LARSON |
Applicant
And
| MS SACHS |
First Respondent
| MS SANDERSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceeding concerning four children, [X] born (omitted) 2006 and aged 11 years, [Y] born (omitted) 2008 and aged 9 years, [Z] born (omitted) 2010 and aged 7 years and [V] born (omitted) 2012 and aged 5 years.
The parties to the proceedings are the Applicant father Mr Larson, the Respondent mother Ms Sachs and the Second Respondent maternal grandmother Ms Sanderson who was granted leave to be joined to the proceedings on the first day of hearing.
The primary issue for determination is with whom the children are to live, and what time they are to spend with the other parties to the proceedings and whether if the children are to live with the father, he is permitted to relocate the children’s residence to the (omitted) area.
Documents relied upon
The father relied on the following documents at hearing:
a)Amended Initiating Application filed 6 April 2017;
b)Affidavit of Mr Larson filed 20 October 2017; and
c)Two Affidavits of Service filed 19 April 2017.
The mother had not complied with the trial directions made on 5 May 2017 not having filed any evidence since 18 December 2015. The Court granted leave to the mother to rely on her December 2015 Affidavit at final hearing.
The maternal grandmother was only to the proceedings on the first day of the hearing and did not have any filed material to rely on at the final hearing. She however gave her evidence in chief orally.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – map of various Aboriginal Tribes;
b)Exhibit 2 – Application’s for Birth Certificates for [Z] and [V] made by the father;
c)Exhibit 3 – Minute of Order sought by the Independent Children’s Lawyer;
d)Exhibit 4 – Family Report dated 25 January 2017, Child Dispute Conference Memorandum dated 18 November 2015 and Child Inclusive Conference Memorandum dated 25 January 2016;
e)Exhibit 5 – Tabbed documents produced under Subpoena from Town A Public School, being sleeve 15
Competing Proposals
The father seeks orders that:
a)He have sole parental responsibility for the children;
b)He be permitted to relocate the children’s permanent residence to the (omitted) area;
c)The children spend time with the mother until such time as the father relocates:
i)During school term on the first, fourth and seventh weekends of that term from 10am Saturday to 4pm Sunday;
ii)For half the school holidays; and
iii)Such other times as agreed.
d)Upon the father’s relocation the children spend time with the mother:
i)On the first and seventh weekends of each school term from 10am Saturday to 4pm on Sunday;
ii)On the fourth weekend of each school term from 10am Saturday to 4pm Sunday provided such time occurs within 50kms of the (omitted) area;
iii)For half the school holidays.
e)The children spend time with the mother on special occasions such as Mother’s Day; and
f)Other ancillary orders including a number of restraints on the parties.
The mother and grandmother seek orders that the children remain living with the maternal grandmother, which has been the case since approximately early/mid 2017.
The Independent Children’s Lawyer seeks orders in accordance with Exhibit 3 being:
a)That the children live with the father;
b)The father to have sole parental responsibility for the children;
c)That the children spend time with the mother and/or the maternal grandmother at such times and places as agreed to between the father and the maternal grandmother; and
d)If the children express a wish to spend time with the mother the father is to take all necessary steps to facilitate such time.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2]. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8] affirmed the legislative pathway.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] [2010] HCA 4
The Relevant Facts
The father was born on (omitted) 1983 and is currently aged 34 years of age. He is of Aboriginal origin from the (omitted) tribe.
The mother was born on (omitted) 1986 and is currently 31 years of age. She is of Aboriginal origin from the (omitted) tribe.
The parties commenced living together on (omitted) 2004.
There are four children of the relationship as identified earlier in these Reasons.
The parties separated on 20 January 2015.
The father has re-partnered and has had two other children to that relationship [C] born (omitted) 2015 and [D] born (omitted) 2017.
The father lives in a two bedroom house with his new partner and their two children.
The mother is currently living in Town B in a two bedroom unit.
The maternal grandmother continues to live in Town A which is some 470kms away from Town B towards (omitted). The maternal grandmother lives in her own nine bedroom home with her two sons, her partner and the four children the subject of these proceedings.
During 2011 the father was sentenced to a term of imprisonment for eight months for a serious assault on the mother which required her to be hospitalised. The father had punched the mother to the mouth and back of the head with a closed fist and choked the mother with his hands.
The father also has a criminal record for driving offences, contravene Apprehended Violence Order and break and enter. The father has not been arrested or in trouble with the police since December 2011.
The father in his Affidavit says the following about the assault on the mother “I acknowledge that the assault on Ms Sachs was savage and would have caused her to fear for her safety. I do not make any excuses for what I did and I accept full responsibility for my actions”.
The father continues to say that he does not think it is appropriate to be violent towards another person and that he does not want his children to grow up thinking that violence is acceptable behaviour. The father says he completed a number of courses whilst in gaol to help him deal with reactions to anger.
The father moved to (omitted) in January 2015 following the parties’ separation. He says that following his move the mother attempted to reconcile with him and that the father refused. He said that his refusal led the mother to yell at him in front of the children words such as “fuck you”, “you fucking paedophile, you will never see the kid (sic) again”.
The father says that the mother continued to phone him and abuse him saying things like “some father you are Mr Larson” and “you are a bad father. The kids hate you”. On other occasions the father would hear the mother telling the children over the phone that “its ya father on the phone. He left you kids. Mr Larson you are dead to them. They don’t need a dad like you”. He says the children would speak to him saying “Mum told us you have aids” and “Mum said you are a junkie” and “why don’t you love us no more”.
The father says that the mother would continue to taunt him with vulgar text messages which he annexes to his trial Affidavit, the messages say “Answer Mr Larson or to busy fucken ya mother n sisters”, “still pumping ya sista”, “Ur sick” “Nothing but rapers” “N pedafiles”, “Have u got AIDS/STD?” “EVERYONE sayin ya do n ya got aids/stds n ur a alcoholic EVERYONE SAYING IT”.
The father says that “he found it hard to cope with the things that Ms Sachs was saying about me on the phone calls and in the text messages” and that he started to “feel very down”. It became too much for the father in approximately March/April 2015. The father had been sitting on a bench in the park when the Police approached the father. The father told them “I need help. I have tried to hang myself once today and I might try again. I haven’t been able to see my children and I’m so worried about them and I miss them so much I can’t sleep”. The father was taken to hospital.
It was following the above hospitalisation that the father commenced parenting proceedings.
The mother moved to Town B at the beginning of 2017. Her evidence was confusing and contradictory as to exactly how the children stopped living with her on a full-time basis. It seems that the mother moved out of the home where she had been living with the children post separation in late 2016/early 2017, and that since that time the children have been mostly living in the home of the maternal grandmother, although it was not until May 2017 that the mother and maternal grandmother notified Centrelink of the children’s changed living arrangements. The mother was transient between early 2017 and when she moved to Town B, she lived between her sister’s home, her mother’s home as well as staying with friends.
The mother says that she had to move in order to get her “life back together”, that Town A had “too many memories” for her and that since living in Town B she has more confidence and feels happier than previously. She says that she felt that the children were safe and well looked after since they have been living with the maternal grandmother, that she did not want them to live with the father and that if it came to it she would give up her life in Town B and move back to Town A so the children could live with her. She said she is “willing to give up everything… willing to go backwards” to ensure that the children lived with her rather than the father.
The mother says that she has been spending “as much time as I can whenever I can” with the children. What this means in reality is that the children have only sporadically seen the mother since she left them in the maternal grandmother’s full-time care and such sporadic occasions have been when there has been a funeral or when the maternal grandmother has taken the children to see the mother.
The mother denies having any problem with drugs or alcohol, either now or in the past. She was not open about what issues or problems she had been having while living in Town A with the children, and for what reason she decided she had to leave and live elsewhere without the children. The Court understands that things for the mother were sufficiently bad that she decided it was better for the children to live with the maternal grandmother than with her while she got her life back on track.
The father proposes that he move with his partner, their two children and the subject children to the (omitted) area. His plans are somewhat fluid; that is, he will not know exactly where he will be applying for rental accommodation and which school the children will attend until such time as he is certain as to whether or not they will be living with him. This is not unusual or extraordinary and in the circumstances of these children and these parties, not something which the Court can be critical of. The Court accepts that the children will be enrolled in a public school in the area where the father is able to find suitable accommodation for him and the family, which the father anticipates will be somewhere in the (omitted) area. In the meantime, until such accommodation is located, the father proposes to live with family members as a temporary solution.
Best Interest Considerations
The children have had meaningful relationships with both of their parents and maternal grandmother. None of the parties raises any issues in respect of the children’s relationships, particularly that the children would not benefit from maintaining a relationship with any of the parties, but particularly the parents.
The father conceded that he felt good that the children were living with the maternal grandmother (as opposed to the mother) as he was able to spend more time with them and the maternal grandmother facilitated that relationship. Both the maternal grandmother and the father were ad idem in respect of the issue of the children’s relationship with the father being something which was encouraged by the maternal grandmother. The evidence indicated that the maternal grandmother was able to speak to the father and to cooperate, not only in relation to the children but also in relation to some assistance which she sought from the father.
Since the children have been living with the maternal grandmother they have had the opportunity of spending additional time with the father than that provided for in previous orders.
The mother on the other hand, has not availed herself of the time which the orders provide for, rather than the children living with her the children have been living with the maternal grandmother since at least May 2017, but probably earlier than that. The children have spent very little time with the mother since they were placed in the maternal grandmother’s care by her. There is no evidence how the change in the children’s living arrangements has effected the children – that is, there is no evidence on the impact on the children of the mother’s unilateral decision to place the children in the maternal grandmother’s care and subsequently spend very little time with them.
While there was a serious assault of the mother by the father in 2011 and breach of Apprehended Violence Order, which the father was incarcerated for, since that time, there have been no other incidents of violence by the father as against the mother.
The mother on the other hand, was a defendant of two Apprehended Violence Orders for the protection of the father, one in 2015 and the other in 2017. The incident in January 2017 where the mother, in the children’s presence, placed a used condom on the father’s bonnet/windscreen was a planned course of action by the mother. The Court does not accept that this was some spur of the moment decision by the mother. It was an ugly incident between the parents which showed the mother had very little insight into how her actions would affect the children and in this regard she placed her own needs above those of the children.
Neither parent seriously contends that the children would be placed at risk of physical harm if they were to live with the other parent. The maternal grandmother does not do so either. There are some assertions by the mother that the children have suffered physical injuries while spending time with the father, however, there was very little to no evidence about these matters, and as such no findings about these assertions can be made. The mother in any event did not make any submissions in respect of her assertions regarding the children’s physical safety while with the father, which seem to be at their highest allegations of inadequate supervision.
The children have a strong relationship with the father. Such a finding is supported by the evidence of the father and the maternal grandmother, who says that the children speak positively about the father and their half siblings. There is no evidence of the children’s present attachment to the mother.
The three older children have all expressed views to the Family Consultant that they like spending time with the father and that they would feel sad if they did not spend time with the father. These views were expressed by the children at the time when they were still living with the mother and since the views were expressed there had been significant changes to their living arrangements. At the time the views were expressed, the Court did not have before it the present competing live with applications and the children were not spending as much time with the father as they were at the time of the hearing. Furthermore, the children’s reported experiences of spending time with the father were positive and supportive of the father’s application for the children to live with him.
Since living with the maternal grandmother, the children had expressed to the Independent Children’s Lawyer a strong wish to be placed in their father’s care.[9]
[9] In support of this submission, which the Court accepts, the Independent Children’s Lawyer relied upon a letter of the Independent Children’s Lawyer to the mother’s solicitors dated 14 July 2017 as to the children’s expressed wishes to the Independent Children’s Lawyer.
The three older children also reported to the Family Consultant that they were aware that their parents did not get along, and that this made them feel sad. It would be best for the children if their parents took heed of what they had said to the Family Consultant in this regard, and made an effort to improve their co-parenting relationship. The Court however finds that while this would be best for the children it is highly unlikely to occur, given particularly the mother’s current attitude toward the father and her inability to see past the father’s historical behaviour and its effects upon her, and in this regard, it is not just the physical assault but also the emotional hurt which the mother seems to have suffered as a result of the father re-partnering.
The father showed a great deal of insight into the effect of change on the children, which would flow if the Court acceded to his application. The father agreed that there will be big changes for the children, and that the children love the mother and most definitely love their grandmother. The father conceded that it was important for the children to continue to have a relationship with the maternal family, and that he would facilitate the children spending school holidays with the mother and the maternal grandmother. The Court accepts the father’s evidence in this regard, which in any event was not challenged by either the maternal grandmother or the mother in cross-examination.
The Court also finds that the father is the parent who will put the children’s needs above his own. This has been demonstrated for example by the father co-operating with the maternal grandmother when the children were placed there by the mother.
The Court finds that the mother has made two significant unilateral decisions in respect of the children, the first of which is the placement of the children with the maternal grandmother notwithstanding an order for the children to live with the mother and the second of which is her decision to spend limited time with the children since their change in residence in early/mid 2017. While on the one hand the Court accepts that the mother has found herself in a position where she thought she needed the change which was brought about by the different living arrangements she put in place in early/mid 2017 for herself and the children, those decisions were focused on her and prioritised her needs rather than the children’s needs. The Court accepts the mother’s evidence that she thought she was doing the right thing, but this does not mean that it was the right thing to do. After all, the children have expressed to the Independent Children’s Lawyer that they would prefer to live with the father rather than the maternal grandmother. It is difficult to understand how the mother thought that the children would be better off without either of their parents, particularly in light of her application for the children to live with her and spend time with the father – an application which was on foot at the time that she decided to move to Town B without the children.
The Court finds that the father will promote a relationship between the children and the maternal grandmother and the mother. He has demonstrated a capacity to do so. The maternal grandmother has likewise demonstrated a capacity to promote and facilitate the children’s relationships with the father and the mother. However, the Court finds that the mother has difficulties in facilitating and promoting the children’s relationship with the father, and that she has difficulties in getting past her own views of the father and acting in the children’s best interests where he is concerned. The text messages which she had sent to the father, as annexed to his Affidavit, were very critical and downright derogatory. Furthermore, the mother conceded at hearing that her denigration of the father in front of the children would have been confusing and upsetting for the children. However, the Court is not assured by reason of that concession that the mother would not engage in similar behaviours in the future.
Both of the children’s parents are Aboriginal, albeit from different tribes. The maternal grandmother is an active member of the Aboriginal community and she has facilitated and encouraged the children participating in cultural events. The father’s evidence, which the Court accepts, is that he too is active in cultural events and that he would encourage the children to remain active members of the Aboriginal community, including by participating in activities with the maternal grandmother.
Overall, the Court finds that it is in the children’s best interest for them to live with the father.
Parental Responsibility
The best interest considerations alone are sufficient to find that the presumption of equal shared parental responsibility has been rebutted. The parents have significant difficulties co-parenting and their relationship has been so poor that it is contraindicative of an order for equal shared parental responsibility.
In addition, the physical distance between the parties’ residences and the mother’s attitude to the father in ensuring that he is involved in decisions regarding the children would make an order for equal shared parental responsibility very difficult to implement.
As such, an order for the father to have sole parental responsibility in circumstances where the Court finds that it is in the children’s best interest to live with the father is an order that will be made.
Conclusion
For all of these reasons orders as set out at the forefront of these Reasons are in the children’s best interests.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 12 January 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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