Lester and Ball
[2009] FMCAfam 194
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESTER & BALL | [2009] FMCAfam 194 |
| FAMILY LAW – Parenting – interim hearing – relocation – allegations of domestic violence. |
| Family Law Act 1975, Part VII, ss.60B, 60CC (1) - (3), 61C, 61DA, 65DAA(1), 65DAA (2), 65DAC |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 |
| Applicant: | MS LESTER |
| Respondent: | MR BALL |
| File Number: | CAC 113 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 26 February 2009 |
| Date of Last Submission: | 26 February 2009 |
| Delivered at: | Canberra |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Advocate for the Applicant: | Ms Lyndon |
| Solicitors for the Applicant: | Kennedy & Cooke Lawyers |
| Advocate for the Respondent: | Mr Ridge |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
That the children [X] born in 1998 and [Y] born in 2000 are to be returned to the care of the Father, no later than 14 days of the date of these orders.
That the parties are to have equal shared parental responsibility for the children.
That unless otherwise agreed in writing between the parties, the children are to spend time with the mother as follows:
(a)For a period of ten days in each mid-term school holiday period, at times agreed between the parties, and failing agreement from the Friday that school concludes until the Sunday of the middle weekend of the school holidays;
(b)For half of the Christmas school holiday period each year, alternating between the first half and the second half of the school holidays. The father is to have the first half of the holidays in 2009, and each alternate year thereafter;
(c)For two weekends per month as agreed between the parties, and failing agreement, for the second and fourth weekends of each month from 4pm Friday until 4pm Sunday. The parties are to meet at [location omitted] at the commencement and conclusion of the mother’s time with the children.
That pursuant to s.62G of the Family Law Act 1975 the parties together with the children attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the children attending at the Federal Magistrates Court at Canberra on 30 March 2009 at 10:00am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family conference report.
That both parties are restrained from denigrating or otherwise speaking ill of the other party in the presence of the children, and they must use their best endeavours to ensure that no other person does so.
That both parties are restrained from discussing these Court proceedings with the children or in their presence and they must use their best endeavours to ensure that no other person does so.
That the matter be adjourned for further mention on 29 April 2009 at 10:30am.
That the parties attend a conciliation conference with a Registrar at
11 May 2009at 2:15pm.
That each party or their solicitors email to the Registrar a conciliation conference document no later than 2.00 pm the day before the conference.
That if valuations are in issue the parties are to exchange copies of valuations or market appraisals no later than 14 days prior to the date of the conference.
That the matter be listed for final hearing on an overlist basis on 21 and 22 May 2009.
That evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Magistrates Court Rules 2001.
That the applicant file and serve any affidavits upon which they intend to rely by close of business on 30 April 2009.
That the respondent file and serve any affidavits upon which they intend to rely by close of business on 7 May 2009.
That the applicant file and serve any affidavits in reply by close of business on 14 May 2009.
That if either party is in a superannuation plan that party forthwith make an application pursuant to section 90MZB of the Family Law Act 1975 to the trustee of the plan for information about the party’s interest in the plan and provide a copy of that information to the other party as soon as it is received.
That if either party seeks a splitting order in relation to superannuation that party is notify the Trustee of that scheme of the orders sought at least 28 days prior to the hearing.
That if any valuations are in dispute the parties’ respective valuers are requested to meet at least 28 days prior to the hearing and, if following that meeting they are still in dispute, the parties and or the valuers, are requested to provide to the Court a memorandum stating the areas of agreement and the areas of dispute.
That each party file and serve an outline of submissions, a chronology, a list of assets and liabilities, a list of affidavits relied upon, and a minute of orders sought, if those orders are different from those sought in that party’s application or response, by close of business on 14 May 2009. It is requested that a copy of the Orders Sought are emailed to [email protected] prior to the commencement of the hearing.
That if an Independent Children’s Lawyer has been appointed, this lawyer will prepare the chronology above, to be settled with the parties, by 14 May 2009.
That subpoenas be returnable no later than 14 May 2009.
That the applicant either pay the hearing fee or obtain an exemption with respect to that fee by 14 May 2009.
That liberty is granted to relist the matter upon providing 14 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Lester & Ball is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 113 of 2009
| MS LESTER |
Applicant
And
| MR BALL |
Respondent
REASONS FOR JUDGMENT
These proceedings essentially arise out of the end-phase of a long relationship between Ms Lester and Mr Ball. They commenced
co-habitation in 1988, and separated in September 2008. Most unfortunately, in some respects the demise of the relationship seems to have commenced following the parties’ marriage in February 2008.
There are two children of the relationship: [X], who is 10, and [Y], who is 9. Very recently, Ms Lester has moved, with the children, from the Bega area to Wollongong. She says that she did so because of family violence directed at her by Mr Ball and which the children have witnessed, to some degree. I do not propose canvassing in any detail any of the allegations at this stage. At such a stage of the proceedings, and as recognised by the Full Court on more than one occasion, it is impossible to make any findings of relevance to the applications before the Court.
Ms Lester works for the NSW Department of [omitted]. She worked for that Department in Bega. In September 2008, Mr Ball attended those offices on the pretext of arranging a surprise 40th birthday party for Ms Lester. Instead, she alleges that he advised various work colleagues that his wife had been involved in an affair. Unsurprisingly, she contends that she can no longer work in that office. Ms Lester now works for the same Department in Wollongong.
Mr Ball lives in [B] on the NSW south coast. He works as a [occupation omitted]. Until somewhat recently, he has been an approved foster-carer for DOCS.
Both parties confirm, but with different emphases, that their relationship was somewhat volatile, especially as it deteriorated and various matters came to light. For example, Ms Lester confirmed in her affidavit of 21st January 2009 (pars.11 & 12) that she advised
Mr Ball that she had had an affair. She seemed bemused if not surprised that Mr Ball did not react well to this revelation, and that the more detail she disclosed of her extra-marital relationships, the more hostile Mr Ball became.
While her candour is refreshing, her understanding of someone’s reaction to learning of their spouse’s extra-marital affairs (and to do so in some detail), is somewhat surprising. Being a Manager of [occupation omitted], and the range of relationship matters with which she would presumably have to deal in that capacity, her lack of appreciation borders on the astonishing.
As well, in a transcript of proceedings heard on 28th October 2008 in Bega Local Court, (the transcript is annexure A to Mr Ball’s affidavit of 12th February 2009) the comments of the Magistrate underscore the more usual reaction in the circumstances that confronted Mr Ball in an incident that occurred on 21st September. As recounted by Ms Lester, Mr Ball found her in bed with another man and then dragged the children in to see their Mother in that situation. Neither account reflects well on either party. His Honour said [at p. 4 of the Transcript]:
When one party to a relationship has an extramarital affair there can be a whole number of reasons why that happens. I mean if I got home tonight or tomorrow night and found that my wife having a, you know, in bed with someone well I would be shocked, I do not know what I would do, I really do not. I do not know what would happen. I would probably say things that I would regret later on, perhaps I would regret them, I might do things that I would probably regret later on, I am not sure, I have not been in the position so I do not know. But certainly your reasoning powers would be very much curtailed for a period of time. We would abhor violence of course. Sometimes our reasoning powers are diminished to a substantial extent. But what causes people to enter into other relationships? Sometimes it is lust, sometimes it is the way they have been treated themselves at home, sometimes it is just falling out of love, I do not know what it is. It is almost impossible, you see, for somebody to apportion blame, and blame is the right word, because you do not know all of the circumstances. I do not know all of the circumstances and I am told by the Crown, who no doubt is repeating the instructions they have had from the victim, that you are not a bullying husband.
In the result, the Magistrate imposed only a bond on Mr Ball.
Ms Lester seemingly attended court on his behalf on that occasion.
In all that has been said thus far nothing should be taken as minimising the adverse significance that any violence plays in this court.
With few exceptions, both parties propound significantly divergent accounts of various recent events. They also offer polarised accounts of each parents’ responsibilities in relation to the children, and notably of the care and welfare of the children in the very recent past. Unsurprisingly, both contend that the children should reside with, and are best settled in, each other’s now rather distant residence.
It does seem reasonably clear that the occasions of physical and or verbal contest were essentially the result of, and occurred during the time of, the deteriorating relationship between the parties. That said, there is some evidence that Ms Lester was not completely estranged from Mr Ball until after the end of December. There is at least one text message from her to Mr Ball in which she clearly sets out her continuing interest – which, by inference, includes sexual interest - in him. As well, Mr Ball deposes to an ongoing sexual relationship with Ms Lester also until late December when, he says, he only then realised that the relationship was finally over.
Applications
The applications before the Court are as follows. Although the application by Ms Lester seeks orders in relation to children and property, for current purposes, it is the children’s orders that are immediately relevant.
Ms Lester seeks orders that the children live with her in Wollongong and spend defined time with their Father. For his part, Mr Ball seeks the return of the children to the South Coast area, that they live with him and spend defined time with their Mother. As already indicated, Ms Lester has already moved to Wollongong. Thus, she is actually seeking the sanction of the court for her already completed action.
The Issues
The issues, immediately and longer term, obviously concern parenting orders, including relocation. It is convenient to deal firstly with the relocation issue.
On an interim basis, a number of judicial authorities intersect in relation to relocation and parenting. Summarily, they are the decision of Boland J, in her appellate capacity, in Morgan v Miles (2008) 38 Fam LR 275 (on relocation), the Full Court decisions in Goode v Goode (2007) 36 Fam LR 422 and Keach & Keach (2007) FLC ¶93-353, in relation to parenting, and the first instance judgment of Brown J in Mazorski v Albright (2008) 37 Fam LR 518. I will deal with the relocation issue first.
In Morgan v Miles, Boland J said, at [74] – [77]:
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
I was encouraged by Ms Lyndon, for Ms Lester, that I should not follow her Honour’s judgment. It was, if I may say, a bold submission. Naturally it was refined somewhat to the effect that Morgan v Miles was distinguishable from this case because here Ms Lester moved unilaterally due to issues of alleged violence.
For my part, two things are clear. First, the issues and allegations of contest (physical and verbal) between the parties are not all one sided either as to the contest and or any provocation. It is also more likely than not that the over-arching angst of the times, particularly on
Mr Ball’s part, arose from the realisation that the relationship was over and that this reality was the dominant if not essentially sole reason, and on-going fuel, for those contests. Hopefully, over time, and with appropriate assistance, the parties might – for the sake of the children at least – be able to deal with past hurts and grief and establish a business-like, reasonable communication regime.
On such a view, the issues of violence alleged are rather contained in location (to the south coast when the parties were married) and time (to the past) and are more than likely to remain so. Moreover, given that each party proposes that the other have time with the children, presumably they would not seek such an order if there were any genuine concerns about the girls being with the other parent.
There is reasonable evidence, for example, from the proceedings before the Local Magistrate, as well as from the parties’ respective, and growing, posse of supporters who have filed multiple affidavits to attest to the favourable qualities of each of the parents, that there is no real issue regarding the capacity of either parent to care and provide for the needs of the children. And although more of an inference, it would appear from these testimonial-like affidavits that they are more likely than not to be able promote their children’s relationship with the other parent. Both of these matters are relevant to s.60CC(2) & (3).
Secondly, it is clear that Ms Lester’s unilateral actions have placed everyone – the Court, Mr Ball, and the girls – in an invidious position, just as fore-warned by Boland J in the passages cited in Morgan v Miles. That action cannot be allowed to stand unchallenged. Put another way, I cannot accede, at this time, to the application to relocate with the children. Indeed, Ms Lester seeks to have her unilateral action sanctioned by the Court, after the event.
In Morgan v Miles, at [79], her Honour detailed the course that the Court must follow. This Court is bound by that decision. Her Honour said:
In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
There is credible evidence that Mr Ball has been the children’s primary carer. That evidence includes that Ms Lester has been working full-time for sometime, while Mr Ball has not. This should not be taken to be a criticism of Ms Lester. It merely states the factual reality of this family.
In the light of the authority of Morgan v Miles, the first order will be that, until further order, the children are to be returned to the care of
Mr Ball. This should occur in an orderly manner that is sensitive to the girls’ ages and the delicate and difficult circumstances in which they find themselves. They should be returned to Mr Ball within 14 days of the date of these orders – at the latest. Earlier would be better for all concerned. I make no formal order in relation to Ms Lester’s living situation.
I turn to parenting issues in the light of the authorities already mentioned. I have previously noted that there are few areas of agreement, and equally few matters in relation to which the Court can make any formal findings as to facts, particularly those set out in Part VII of the Family Law Act.
In Mazorski v Albright, beginning at [3], Brown J said:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
The circumstances are such in this case that I do not see there is any obvious impediment to an order that the parents have equal shared parental responsibility for the children pursuant to the operation of the presumption under s.61DA.
Such an order invokes the operation of s.65DAA regarding equal time or substantial and significant time, subject to the riders of whether any such order is in the children’s best interest, and whether such an order is reasonably practical. Given the geographical distance between the parties, reasonable practicality certainly is a consideration.
As recognised by the Full Court in Goode v Goode, in a hearing such as this – hastily scheduled, disparate accounts of events, no independent evidence (for example, from a family consultant) – it is impossible to make many findings, or to make many or any determinations in relation to the primary and additional considerations under s.60B and s.60CC. That said, some inferences are possible. For example, to return the children to their Father, they will be returning to a very familiar area, complete with old friends and their old school.
Certainly, the children should have liberal telephone time with their Mother, having due regard to their ages and school and other commitments, and also to Ms Lester’s full-time work responsibilities. In my view, it is unnecessary to make any formal orders regarding electronic communication.
There has already been scheduled a reportable family conference for 30th March. The Report from that Conference will hopefully go some way in assisting the parties to focus on the principal issues in relation to the future care and welfare of their children.
The matter will be listed for further mention on 29th April at 10.30am. Liberty to re-list on 14 days notice is also granted.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 16 March 2009
0
0
1