Lines and Lines

[2018] FamCA 1115

FAMILY COURT OF AUSTRALIA

LINES & LINES [2018] FamCA 1115

FAMILY LAW – CHILDREN – Parenting – Interim Orders – Where a child has expressed clear views – Where certain orders are made by consent – where changeover arrangements are disputed – where evidence is limited – where orders are made on the basis of the evidence presented.

Family Law Act 1975 (Cth) s 61DA

APPLICANT: Ms Lines

RESPONDENT: Mr Lines

INDEPENDENT CHILDREN’S LAWYER: Mr P Smith

FILE NUMBER: MLC 1921 of 2017

DATE DELIVERED: 21 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Moylan Family Lawyers

SOLICITOR FOR THE RESPONDENT: Snedden Hall & Gallop

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Z, born ... 2005, and Y, born … 2010, shall live with the mother;

2. That the mother is permitted to and shall enrol Z and Y attend G School for the 2019 school year;

3. That the mother is permitted to and shall enrol X, born … 2005, to attend F School as a boarder during the week for the 2019 school year;

4. In the event that X is absent from F School during a school week, then she shall spend time with her mother and father as agreed by the parents and, failing agreement the matter may be relisted on short notice;

5. That X shall, subject to any written agreement by the parents to the contrary, spend the following time with each of the parents:

   (a)Alternative weekends with the mother and the father during term times from after school on Friday to 6pm Sunday, commencing the first weekend of each term with the father.

   (b)One half of the school holidays, by agreement and failing agreement, the first half of each term’s school holidays with the father, in which case handover is to occur at 6pm on the middle Saturday of the holiday period.

6. That Z and Y spend time with the father:

   (a)During term time from after school on Friday to 6pm Sunday, with such time to coincide with the time that X is with the father.

   (b)One half of the school  holidays to coincide with the time that X spends with the father, by agreement and, failing agreement, the first half of each term’s school holidays with the father.

7. That changeover on Sunday pursuant to orders 5 and 6, and on Saturdays pursuant to Orders 5(b) and 6(b) will be at H Park.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lines & Lines has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 1921 of 2017

Ms Lines

Applicant

And

Mr Lines

Respondent

REASONS FOR JUDGMENT

1. The parties appeared before me on 19 December 2018 following the filing of an Application in a Case by the Mother on 13 December 2018.  That application concerned interim arrangements for the three children of the relationship, X aged 13, Z aged 11 and Y aged eight.  Until recently, absent orders dealing with where the children would live and how they would spend time with each parent, they have been living primarily with their Mother in Region D of New South Wales.  The Father has lived for some time away from Region D, but has recently moved to Sydney.  Generally, by agreement, there has been fortnightly time for the children with their Father although that has been interrupted, according to the Father, by the Mother withholding her agreement in recent months.

2. The Application in a Case filed by the Mother followed an incident whereby X was due to spend time with her Father on the weekend commencing Friday, 7 December 2018.  The Mother noted that there were school events scheduled on that day and weekend and indicated to the Father her disagreement with him spending the entire weekend with X (although agreeing with part of the weekend to be spent).  Despite this disagreement the Father collected X on 7 December 2018 and she has remained living with him ever since.  He says that this is the product of X's wishes.

3. The Mother filed an application to have X returned to her on 13 December 2018.  This application was heard on 19 December 2018 and an order was made for X to return to her Mother for the short period of time before she would return to her Father pursuant to agreed orders governing the Christmas school holiday period.

4. The matter was conducted on limited material.  The Mother relied upon two affidavits, the first being an affidavit which dealt with matters primarily leading up to the end of 2017.  The second affidavit dealt narrowly with circumstances surrounding the withholding of X.  There was little, if any, information about the living arrangements for the children through 2018.

5. The Mother’s material outlines a history of family violence by the Father and circumstances of exposure of the children to family violence.  If her material is accepted, it depicts serious and ongoing family violence on the part of the Father. 

6. The Father filed in Court, with leave, his affidavit in support of his Response to the Mother's Application in a Case.  That Response was filed the day before the hearing and he was refused filing of the affidavit.  I note that the Rules do not permit the filing of affidavit material for an interim hearing so close to the hearing date.  The Rules provide for that restriction for important reasons as such filing prejudices the just and proper conduct of proceedings.

7. The Father's material outlines issues that he says are occurring between X and the Mother including distress and upset on the part of X, the Mother's blocking of communication between the Father and X and X's wishes to live with the Father.

8. Given the age of X her views loom as important to the resolution of the proceedings.  There was a lack of identifiably reliable evidence of her views and so arrangements were made on the day of the interim hearing for her to attend upon Ms E, a Family Consultant based in the Canberra Registry of the Family Court of Australia.  Following seeing X, Ms E gave evidence about her interview of X. 

9. X told Ms E that a fortnight ago she had decided to live with the Father and had communicated this to the Mother (see exhibit W1 being a letter from X to the Mother which outlines the basis for X's decision but at the same time describes the Mother in glowing terms).  X described herself to Ms E as feeling more herself when she is with the Father.  She described incidents with the Mother, including being locked in her room, forced into a car, forced to attend an event that she did not wish to, having a telephone taken, being called a dictator by the Mother, being pinned against a wall with the mother striking the wall near X, having her door broken and experiencing the Mother as yelling and screaming a lot.  She indicated that her relationship with her Mother was deteriorating.  In contrast, she said that the Father was calm and did not shout or raise his voice.

10. In assessing X Ms E described her as “quite mature” noting her commencement of high school.  At the same time she noted that X had given no apparent consideration in her view that she wished to live with her Father to the impact on her sibling relationships, nor did she describe the living arrangements with her Father, although she expressed that they were satisfactory to her. 

11. X expressed that she wished to live with her Father, wished to board during each week at her current school (F School in Region D), wished to spend alternate weekends between her Mother and Father until Monday morning when she returned to school and wished to Facetime with her parents on Wednesdays and Sundays at 7pm. 

Agreed matters

1. The parties subsequently agreed a number of matters.  In general terms they agreed that X should attend at F School to board during the week.  On the Father's part however, the agreement to this arrangement was contingent upon particular payment arrangement being made.  He asserted that otherwise he was unable to meet the fees.  The Mother likewise sought that X board at F School, with a particular fee arrangement in place.  However, her view that X should be enrolled in F School was not predicated upon such an arrangement for the fees.

2. An order providing for arrangements for the fees of F School was unavailable.  The parties did not consent to one and there was no evidence sufficient to support such an order being made. 

3. The parties also appeared to be in agreement that if X attended F School to board during the week then she should spend alternate weekends with each parent, along with half of school holidays (excepting the Christmas school holidays which they agreed to a different arrangement and orders were made on 19 December 2018 supporting that arrangement).  Where they disagreed was in relation to the handover arrangements.  The Mother said that a handover arrangement when the children spent the weekend with the Father should occur on a Sunday evening.  The Father said that it should occur on the Monday morning with the children being taken to school.  Accordingly, there was also some disagreement about the handover location.  On the Mother's case the Sunday evening handovers would take place at the halfway point between the Region D and Suburb J where the Father lives whereas on the Father's case the drop-off would occur on the Monday morning in Region D. 

4. The parties agreed that there should be alternate weekend time for Z and Y that should coordinate with the time with X.  They disagreed in relation to the handover arrangements as indicated above.

5. Noting there are unresolved family violence issues, the position of the mother that the children spend time with the father appears to speak to an acceptance that such an arrangement will not inappropriately expose the children to family violence under those circumstances.  This is reinforced by an absence of evidence of risk arising from the time that the children have spent with the father in 2018.

Disagreed matters

1. The parties differed in their positions as to parental responsibility.  The Mother sought no order as to parental responsibility, while the Father sought that there be equally shared parental responsibility.  However, they also were in disagreement about a matter properly the subject of parental responsibility being the schooling arrangements. 

2. Further areas of disagreement involved whether Y and Z would attend their current school, G School.  This was unable to be agreed, at least on the Father's part absent an arrangement for the payment of school fees.  The Mother's position is that they should continue to attend this school that they had been attending for some time. 

3. The parties were also not in agreement with where X should live (absent agreement about attending F School).  The Father says X should live with him, attending school in Sydney.

4. There are other matters agreed by the parties which were the subject of orders made on 19 December 2018.  Those matters are not repeated here. 

Parental responsibility

1. The presumption of equally shared parental responsibility is rendered inapplicable in this case.  On the Mother's account there is a reasonable basis to believe that she and the children have been exposed to family violence.  This finding of a reasonable basis does not equate to a finding that such family violence has taken place, but rather to a finding that there is a reasonable basis to form such a belief.  The structure of the provision contained in s 61DA which deals with the rendering of the presumption as inapplicable, is akin to provisions governing the issue of search warrants.  That is, in the same way that they are not contingent upon a finding that a particular item is in a particular place but rather establishing a reasonable basis to suspect or believe that an item may be in a particular place, similarly the presumption is rendered inapplicable if there is a reasonable basis to believe that family violence has taken place. 

2. The allegations of family violence not only mean that the presumption is rendered inapplicable, but also mean that it is not in the best interests to compel cooperation between the parties in their decision-making about major matters for the children in this particular case. 

3. Neither party sought an order for sole parental responsibility.  Their opposing positions were on the Father's part an order for equally shared parental responsibility, as opposed to on the Mother's part no order for parental responsibility.  The effect of her position will be that the parties would have joint and several parental responsibility leaving each with authority to make major decisions for the children independently.  At present, it is appropriate that the mother’s position be adopted, as such will allow parenting decisions to be made absent the cooperation that I have identified would be inappropriate.  This in itself may cause other issues, although I was not addressed as to such.  Absent an alternative position as to parental responsibility being raised or addressed in a manner to accord the parties procedural fairness in the proceedings, I am not at liberty to depart from the positions advanced by the parties.  Should issues arise as to parental responsibility they may present an occasion for further determination by the Court. 

4. It was left to the Court to determine what should happen in relation schooling for the children.  On the limited information available, the Mother's position as to which school the children should attend is preferable.  It appears to promote stability in that the schools the children have been attending for some time are maintained in the context of what is otherwise great upheaval in their lives.  Further and quite importantly, such an order is reflective of X's view as to her living arrangements.  Some weight ought to be given to her view given the maturity that she has been assessed as having and given her description of her circumstances and the deterioration of her relationship with her Mother.  The maintaining of X at the school of her preference under those circumstances is both sensible and provides stability for X while promoting relationships with each of her parents.

Orders governing X when she is at school 

1. The context of an order meaning that X will be enrolled at the boarding school means that her living arrangements are otherwise somewhat moot.  Under the circumstances of the Mother seeking no particular order, of X attending a boarding school, and not having been addressed on the practicalities of an order that X lives with her Father (noting that the parties have not addressed for example, what would happen if X needed a parent urgently while at boarding school, perhaps for medical reasons, and noting that the Mother lives proximately to the school, and questioning the availability of the Father given his work arrangements and his residence in Suburb J) no specific order as to which parent X should live with during this time should be made.  Rather, the arrangements during that time should be subject to agreement between the parties with a short listing being available before the Court should the need arise.  This arrangement accords in large part with the silence on the part of the Mother's proposal.

Handover

1. As to the issue of handover time there are issues with each of the positions of the parties.  The Father notes difficult travel between Suburb J and Region D and return on a Sunday afternoon.  No evidence is presented of this although it may be assumed that there is a significant transit time.  Similarly, there is a question of the difficulty with which arises with travel between Suburb J and Region D on a Monday morning for drop-off for school.  Again there is no evidence in relation to this matter however, it may be inferred that it would require an early departure from Suburb J by the Father and the children which, as noted by the Independent Children's Lawyer, would be hardly conducive to the commencement of a good school week.  The Mother's proposal is for a Sunday afternoon handover to occur at the H Park.  This she asserts is halfway between the parties’ residences and her assertion was not the subject of dispute.  This would appear to relieve some of the Father's problems with travel on a Sunday afternoon.  It would still mean that the Father and children would not be able to enjoy Sunday evening together, but it alleviates the Monday morning trip to Region D, which is a matter that I consider outweighs the benefits that may accrue to the children by spending the Sunday evening with their Father.

Summary

1. In a context where there is no issue between the parties as to where the boys should live, where the arrangements identified cater for each of the children to obtain the benefits of meaningful relationship with each of their parents, and where the agreement between the parties (although limited) signifies sufficient protection from exposure to family violence, and noting the views of X the above conclusions as to the disputed issues between the parties is in the children's best interests when seen within the narrow corridor in which the dispute was conducted.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 December 2018.

Associate: 

Date:  21 December 2018