Lindrum and Marsden
[2009] FMCAfam 134
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LINDRUM & MARSDEN | [2009] FMCAfam 134 |
| FAMILY LAW – Interim children’s matters – mother agreed to children living with father – dispute as to if and when the children where to return – children living with father and grandparents – whether in best interest of children to live with father or mother. |
| Family Law Act 1975, ss.60CC, 63DA |
| Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR LINDRUM |
| Respondent: | MS MARSDEN |
| File Number: | MLC 11616 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 2 February 2009 |
| Date of Last Submission: | 2 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Nevin Lenne & Gross |
| Counsel for the Respondent: | Ms Billeam (appearing amicus curae) |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
That the children [X] born in 2001 and [Y] born in 2003 (“the children”) live with the father.
That until further order the children spend time with their mother as follows:
(a)For 10 days each Victorian gazetted term school holiday period, such period to commence on the first day following the end of the school term and to conclude at 5:00 pm on the tenth day of the holiday period.
(b)For the first half of the Victorian gazetted summer school holiday period in 2009/2010 and each alternate year thereafter, such time to commence at 10.00 am or as soon as practicable thereafter on the first Saturday of the school holiday period and conclude at 5.00 pm or as soon as practicable thereafter on the middle day.
(c)At such further and other times as agreed between the parties.
That the mother communicate with the children by telephone each Tuesday and Thursday, between 6.00 pm and 6.30 pm, for no more than 30 minutes, with the mother to initiate the call to the father’s landline or mobile telephone and the father shall provide all reasonable assistance to enable such communication to take place.
That both parties keep the other informed of their residential address and landline/mobile telephone numbers and current addresses.
That each party shall keep the other informed at all time of all significant medical issues relating to the children including any significant injury or medical condition suffered by the children during such period of time when the children are in the care of either of them.
That the party that receives school notices, information, newsletters, school reports, school photographs is to provide copies of same to the other party within 7 days of receipt by the party.
That the parties are to authorise the children’s school to provide any and all of the information referred to in Order 6 above directly to each party.
That for the purpose of handover occurring pursuant to Order 2 above, the parties be equally responsible for the costs associated in the children travelling from and to Victoria.
That prior to the mother’s time first commencing pursuant to order 2 above, the mother attend on a psychologist or psychiatrist and provide a written report to the father to confirm that she is in a fit mental state in which to properly care for the children.
That in the event the mother wishes to travel to Victoria for the purpose of spending time with the children, she provide the father within
14 days notice of her intention to travel to Victoria at which time the father will make the children available to spend time with the mother in Victoria for no more than 1 week.
That both parties enrol in a drug and alcohol management plan/education course by 6 April 2009, and provide a certificate of successful completion to the other.
That both parties submit to random drug and alcohol testing at times to be nominated by the other party’s solicitor and not exceeding one request per calendar month.
Pursuant to section 68L(2) of the Family Law Act 1975 the children [Y] born in 2003 and [X] born in 2001 be separately represented and it is requested that Victoria Legal Aid arrange the separate representation.
Upon appointment the Independent Children’s Lawyer shall file a Notice of Address for Service.
Within 48 hours of notification of appointment of an Independent Children’s Lawyer the solicitors for the parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children [Y] born in 2003 and [X] born in 2001 attend upon a Family Consultant nominated by the Dispute Resolution Coordinator or her nominee on a date and time to be advised for the purpose of the preparation of a family report and the report be made available to the parties 21 days prior to the final hearing.
(a)The Family Report to deal with the following matters:
(i)any wishes expressed by the said child/ren and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
(b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant and within 7 days of being notified of the family consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) do deliver or cause to be delivered to the family consultant copies of the following documents:
(i)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(ii)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(iii)any intervention or restraining orders currently in force.
The father is to undertake testing fortnightly for the presence of alcohol in his system and is to send a copy of the test result to the mother within 7 days, with liberty to apply should those tests not be conducted or should any test be positive.
That the parties file and serve any additional material on which they intend to rely by 14 August 2009.
The matter is fixed for final hearing on 27 August 2009 at 10.00 am with an estimated hearing time of 2 days.
IT IS NOTED that publication of this judgment under the pseudonym Lindrum & Marsden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11616 of 2008
| MR LINDRUM |
Applicant
And
| MS MARSDEN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The mater involves an application by the father for parenting orders in relation to two children of the marriage [X] born in 2001 and [Y] born in 2003.
The children are currently in the applicant father’s care pursuant to an agreement reached between the parties on 28 October 2008.
By application filed on 23 December 2008 the father seeks an order that the children live with him and spend time with the respondent mother.
The mother then issued proceedings in the Local Court at Liverpool in New South Wales and contained an order ex parte on 6 January 2009 that the father return the two children to the mother, and that they reside with the mother.
By order dated 13 January 2009, the Local Court in New South Wales ordered that the proceedings in that Court be transferred to this Court.
The matter was heard by this Court on 2 February 2009; Ms Southey appeared for the applicant father and Ms Billeam, a duty lawyer, for the respondent mother. The applicant father sought orders that the orders of the Local Court in New South Wales be discharged and that an interim order be made that the children live with the father.
The agreement between the parties on 28 October 2008 was that the children live with the father (who is living with his parents).
In his affidavit sworn on 22 December 2008 the father lists his concerns about how the mother has cared for the children which cover:
·The mother smoking marijuana in front of the children;
·The use of bad language in front of the children;
·Poor diet and nutrition;
·Exposure to violence;
·Exposure to passive smoking of cigarettes and marijuana;
·Lack of clean clothes;
·Lack of general care and supervision by the mother;
·The children not having money for school lunches.
·
Poor attendance at school (Annexure “LJ2” is a copy of the school attendance records from 5 February 2007 until
18 November 2008. The mother says that many of the absences were a result of the father not returning the children in time for school after they spent time with him).
On 28 October 2008 the father rang the mother, and as a result of his concerns the mother agreed that the children reside with him until
6 January 2009, when the parties would discuss how the arrangement was going (Affidavit of father sworn 22 December 2008 paras 34 to 45). The mother disputes this.
The father is concerned about returning the children to live with their mother.
The mother seeks an order from this Court in terms similar to those of the Local Court in New South Wales.
The mother deposes in her affidavit filed in the Local Court of New South Wales that when the father collected the children at Brisbane Airport on 1 November 2008 he told the mother “…not to worry. I will never take the kids from you”.
The father then travelled with his children to his parents’ house at [P], Victoria, where they now live in a 4 bedroom house. They are enrolled in [P] School and had one day off between 6 and 17 December 2008.
The father believes that the mother is suicidal (Affidavit of father
22 December 2008, para 44).
As a result of the father’s concern about the mother’s behaviour, he decided that he would not return the children to the mother, and he made his current application to the Court prior to 6 January 2009.
The mother alleges that the father is addicted to alcohol. The father says he is attending Alcoholic Anonymous meetings and has not had a drink since early October 2008. The father is prepared to submit to random supervised urine screens (Court transcript page 14, line 22 and page 24, line 5).
The mother alleges that the father has an anger management problem. The father proposes that both parties attend an anger management course.
The father seeks an interim order that the children live with him and spend time with the mother during school holidays. The mother seeks orders that the children live with her and spend time with the father as agreed.
The mother has relocated from Bribie Island to New South Wales.
The mother alleges that she has been the primary carer of the children. She is on Centrelink payments and rents a two bedroom unit close to the school proposed for the children. If the children live with her she will claim a sole parent pension.
The father admits to having criminal convictions for assault, unlawful wounding, abusive language, possessing cannabis, a firearms offence and theft. The mother has no criminal record.
It is submitted for the father that the children should not be moved from their settled environment of the last 3 months and moved to a new environment in New South Wales.
The father alleges that the mother has refused to tell him where she is living. The father believes that the mother is living with someone.
The husband deposes that “I have at all times allowed Ms Marsden to speak with the children”.
The Court refers to the decision in Goode & Goode (2006) FamCA 1346 at [81] and [82] as follows:
“HOW SHOULD INTERIM PROCEEDINGS BE CONDUCTED?
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitute the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable
(j) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(k) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(l) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if the neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
The Court has identified the competing proposal of the parties.
The Court has identified issues in dispute in the interim hearing.
As to identifying agreed or uncontested relevant facts.
·It is not disputed the mother was the primary carer of the children from their birth until 28 October 2008.
·
It is not disputed that there were to be discussions around
6 January 2009about returning the children to the mother.
·It is not disputed that the father decided unilaterally not to return the children on 6 January 2009, without first discussing his decision with the mother.
·It is not disputed that the mother is living in an environment that would be new to the children if they were to return to her. Apparently, she is sharing a two bedroom unit with someone.
·
The father actions on Boxing Day (see affidavit of father paras 6, 7, 8 tendered in the Local Court) and on or around 6 January 2009 show that he is not willing to foster a close relationship between the children and their mother; although he explains the Boxing Day difficulties in his affidavit to the Local Court (see paras [6-8]), and his solicitors wrote to the mother’s solicitors on
14 January 2009 putting a proposal for the children to spend time with the mother from 19 to 29 January 2009 (a response was not received).
·It is not disputed that the father had an ongoing problem with alcohol since he was 14, but that he is attending regular Alcohol Anonymous meetings and has not had a drink since October 2008.
·It is not disputed that the children missed many days at school while in the mother’s care.
·It is disputed that the paternal grandparents home provides more room for the children, than does the mother’s unit. There is no evidence as to whether the children would have a bedroom between them if they were to live with the mother.
Considerations of section 60CC matters
Section 60CC(2)(a): The proposals of both parents would enable the children to have a meaningful relationship with both parents.
The father’s proposals are more specific about the actual time to be spent with the mother. Those proposals were marked “A” by the Court.
Section 60CC(2)(b): There is uncontested evidence that the children were exposed to some degree of neglect when they lived with the mother leading up to October 2008.
Section 60CC(3)(a): The Court has no evidence of views expressed by the children, who are aged 7 and 5.
Section 60CC(3)(b): There is no evidence that the children do not have a good relationship with either parent. As the children are now living in the paternal grandparents’ house, it is probable that they are developing a relationship with them.
Section 60CC(3)(c): The father’s proposals show a willingness to facilitate and encourage a close and continuing relationship between the children and the mother. The mother’s proposal is less specific as to time with the father.
Section 60CC(3)(d): Ordering that the children live with the mother would take them out of a settled school and home environment with their father and paternal grandparents. They would go to a home in an area strange to them and be enrolled in a new school. Those changes would be disruptive to the children, and would separate them from the paternal grandparents.
Section 60CC(3)(e): The proposals by both parties involve the children travelling interstate to spend time with the other party. Each involves similar travelling expenses.
Section 60CC(3)(f): The father’s proposal gives the capacity for him and his parents to provide for the children’s needs. There is no evidence that they do not have the capacity to provide for the children’s emotional or intellectual needs. The children lived with the mother from their birth until October 2008, and she was their primary carer. There is no evidence that she does not have the capacity to provide for the children’s emotional and intellectual needs.
Section 60CC(3)(g): Not relevant.
Section 60CC(3)(h): Not relevant.
Section 60CC(3)(i): There is uncontested evidence that the mother’s attitude to the responsibilities of parenthood were lacking leading up to October 2008.
Section 60CC(3)(j): There is some evidence of family violence referred to in the affidavit of the mother tendered in the proceedings in the Local Court. It related to when the father was intoxicated.
The evidence is that the father has not had a drink since October 2008.
Section 60CC(3)(k): Not relevant.
Section 60CC(3)(l): Both proposals may lead to further proceedings in relation to the children.
Section 60CC(4)(a): There is evidence that the mother has failed to fulfil her responsibilities as a parent. There is evidence that the mother failed to take the opportunity to spend time with the children between 19 and 29 January 2009. Otherwise there is no evidence that either parent has failed to take the opportunity to communicate with the children or participate in making long-term decisions in relation to the children.
Section 60CC(4)(b): There is uncontested evidence that the father failed to facilitate the mother’s participation in deciding who the children were to live with after 6 January 2009.
Section 60CC(4)(c): There is evidence that the mother failed to maintain the children properly leading up to October 2008.
Section 60CC(4A): The parties separated in June/July 2003. Since that time the children have lived with the mother and spent time with the father up until 1 November 2008. From then to date the children have lived with the father, and his parents.
Section 60CC(5): Not applicable.
Section 60CC(6): Not applicable.
The Court decides that equal shared parental responsibility is in the best interests of the children. There are no reasons to show that not to be in the children’s best interests.
The parents live in different states, a long way from each other. Both children attend school. It is therefore not reasonably practicable for them to spend equal time with each parent.
The Court decides that it is not practicable for the children to live with one parent and spend substantial and significant time with the other.
“Substantial and significant time” is defined in s.63DA(3) as including days that do not fall on weekends or holidays. That would require the children missing school in [P] and is impracticable.
The children are currently living in a settled environment in a four bedroom house with their father and grandparents. The paternal grandparents could be called on to look after the children if the father is at work, but the father intends obtaining work that will not require his parents to care for the children. The mother is living in a two bedroom unit and appears to be living with someone. The children may therefore not have a bedroom to share between them if they live with their mother. These are considerations within s.60CC(3)(f) and (m).
The Court decides that it is in the best interests of the children that they live with their father until final determination of the matter.
The Court decides that the orders proposed by the father are in the best interests of the children. The orders provide for 10 days of the school holidays with their mother and other times as agreed, and telephone contact.
The mother made application that the matter be transferred to this Court in Sydney. No reasons were provided. That application is dismissed.
The Court makes interim orders as detailed earlier in this decision.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 6 March 2009
0
0
1