Magee and Graham and Magee
[2008] FMCAfam 1063
•14 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAGEE & GRAHAM & MAGEE | [2008] FMCAfam 1063 |
| FAMILY LAW – Parenting – residence and relocation – interim hearing – grandparents – children’s best interests – children’s views. |
| Family Law Amendment (Shared Parental Responsibility) Act 2006 Family Law Act 1975, ss.60B (1), (2), (2)(b), 60CA, 60CC, 60CC (1), (2), (3)(a) - (c), (e), (f), (i) – (k), (4), 61DA, 65DAA (1), (2) |
| Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 Goode v Goode (2007) 36 Fam LR 422 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 (4 September 2008) Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MS MAGEE |
| First Respondent: | MR GRAHAM |
| Second Respondent: | MS MAGEE |
| File Number: | CAC 1188 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 23 September 2008 |
| Date of Last Submission: | 23 September 2008 |
| Delivered at: | Canberra |
| Delivered on: | 14 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burgess |
| Solicitors for the Applicant: | Legal Aid ACT |
| Counsel for the first Respondent: | Mr Graham in person |
| Counsel for the second Respondent: | Ms Grogan as agent |
| Solicitors for the second Respondent: | Eden Legal & Conveyancing |
ORDERS
Until further order, the orders of Federal Magistrate Mowbray made on 2 June 2006 are suspended.
Ms Magee, Mr Graham and Mrs Magee have equal shared parental responsibility for the children [X] born in 1996 and [Y] born in 1998.
Until further order, the children are to continue to live with the maternal grandmother.
The mother is to spend time with and communicate with the children as agreed between the mother and maternal grandmother.
Each of the parties be restrained by injunction from doing or saying anything to the children or in their presence or hearing derogatory of the other party or detrimental to the relationship each party has in relation to the other party.
The matter is adjourned for further mention on 26 March 2009 at 4:15pm.
The matter is listed for final hearing on a primary basis on 18 and
19 June 2009.
Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave.
The mother file and serve any affidavits upon which she intends to rely by close of business on 23 April 2009.
The father and maternal grandmother file and serve any affidavits upon which they intend to rely by close of business on 7 May 2009.
The mother file and serve any affidavits in reply by close of business on 21 May 2009.
Each party file and serve an outline of submissions, a chronology, 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 5 June 2009.
Subpoenas be returnable no later than 4 June 2009.
The applicant either pay the hearing fee or obtain an exemption with respect to that fee by 5 June 2009.
Each party is to provide to the Associate an electronic copy of their minute of orders sought by 17 June 2009.
The parties have liberty to relist the matter on 14 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Magee & Graham & Magee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1188 OF 2008
| MS MAGEE |
Applicant
And
| MR GRAHAM |
First Respondent
| MS MAGEE |
Second Respondent
REASONS FOR JUDGMENT
Introduction & Procedural History
In a recent non-family law matter, the High Court described the particular litigation as involving “the parties' fascinated obsession with the minutiae of their innumerable litigious battles.” In the same place the Court adopted the description of the trial judge in relation to the litigation as being compared to the Sargasso Sea, characterised by "the constant shifts and manoeuvrings of the parties."[1] Both descriptions are apt to the ongoing struggles between the parties in this litigation.
[1] Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 (4 September 2008) the High Court (Gummow ACJ, Kirby, Hayne & Heydon JJ) at [9] and [endnote 9]. Palmer J was the trial judge: Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 at [39].
Family law litigation, by nature, involves families in dispute to varying degrees. Unfortunately in these proceedings there are extra layers of contest that cloud further the course to be chartered in making interim orders that are in the best interests of the two children involved, 12 year old [X] and 10 year old [Y]. Those extra layers come from a long history of litigation and of complex relationships. Both of these matters are explored, as briefly as possible, in the reasons that follow.
[X] and [Y]’s parents have been involved previously in legal proceedings in this Court and in the Family Court, at least since 1997. The litigious history includes an appeal from a judgment of Murray J to the Full Court of the Family Court in 2000. In the records of each of those earlier proceedings, now spanning more than a decade, each Court has referred to the intense level of conflict between Ms Magee and Mr Graham. In proceedings in the Family Court before Murray J, her Honour, as did the Full Court, noted that Ms Magee wished to put as much physical distance as possible between her and Mr Graham. The Court also noted that another part of Ms Magee’s wish to relocate to Queensland was to marry a Mr C, obviously not Mr H, her now estranged husband.
In June 2006, orders were made permitting Ms Magee (the applicant in these proceedings) to relocate to Queensland with her children. She moved to Queensland to be with her third husband, Mr H. Unfortunately, that relationship has had, and seems currently to have, a range of difficulties. In her affidavit of 23rd July 2008, she confirmed that shortly after moving to Queensland pursuant to the Court orders of July 2006, she and Mr H separated.
Ms Magee deposed to moving to Canberra after continuing to live in Queensland for three school terms. That move was predicated upon her obtaining better paid employment. Ms Magee said that the move was “a disaster” financially.
Ms Magee remains significantly estranged from the children’s Father, Mr Graham. The estrangement between the parents is mutual. Indeed, at the two short interim hearings (thus far) it was patently clear that, if possible, the strength and degree of acrimony between the parents rested more with Mr Graham than with Ms Magee. Her current angst lay elsewhere.
Apart from being separated from her children, much of Ms Magee’s immediate anguish is due to her perception that her parents and
Mr Graham had, in effect (and to speak somewhat colloquially), teamed up to deceive her and to keep her children on the South Coast of New South Wales.
In her affidavit of 23rd July, Ms Magee confirmed that most of the children’s family connections are on the South Coast, but also noted that she had some family in Queensland. She also said (par.33) that she knew that the children “may want to continue living on the South Coast, but they were in fact well settled and happy when they were living in Queensland as well.” The latter claim was rather strongly refuted by the comments of the children detailed in the Family Report (on which see further below).
A further cause of considerable disquiet, which is also mutual, is the deep and obviously painful estrangement between Ms Magee and her Mother, Mrs Magee, who is the second respondent to the proceedings. Mrs Magee has filed two affidavits already. In them she deposes to the history of the troubled relationship between her daughter and Mr H, as well as to what she says are the views of the children. In particular she stresses that (a) the children do not wish to live in Queensland, (b) the children’s anxiety about contact with Mr H and his family, and (c), at her daughter’s request, the children have lived with their [maternal] grandparents since December 2007. According to Mrs Magee, this was and remains so as to allow Ms Magee to seek to salvage her marriage to Mr H. Mrs Magee also sets out a brief history of a number of changes of residence for her daughter and her children within a relatively short period of time between October 2006 and the end of 2007.
From Ms Magee’s affidavit, and confirmed in Ms Dawson’s Report, there would seem to be not a great deal of contest at least about the number of moves involving the children and the locations to which they moved. It would also seem incontestable that there have been a number of partners to Ms Magee, thus adding further grounds for the children’s sense of instability.
In his Response filed on 13th August, Mr Graham seeks orders that the children live with him. However, at the hearing on 23rd September at which he appeared without legal representation, he confirmed that he was more than happy for the children to continue to live with their grandparents. Although in the circumstances this was somewhat understandable, I confess also that it struck me as a little odd, not in relation to the care provided to the children by their grandparents but something of an abdication of Mr Graham’s parental responsibility. This impression may readily be altered and the reason(s) for it otherwise explained at the final hearing. My questions about the paternal grandparents are fuelled because the proceedings before Murray J and in the Full Court refer to both sets of grandparents.
A final and important introductory observation should be made:
Mrs Magee says that she thinks the children should ultimately live with their Mother. She confirmed this in her discussions with Ms Dawson. However, she says that until her daughter’s relationship with Mr H is clarified, and that she returns to live closer to the children and their Father, they should remain with their grandparents.
Orders Sought & Submissions
Ms Magee seeks that the children live with her in Queensland in accordance with the orders made on 2nd June 2006.
Mr Graham, as I have already noted, seeks that the children live with him and spend defined time with their Mother. He also seeks that the children spend time with their maternal grandparents as agreed between them and Mr Graham. As also noted, at the interim hearing, Mr Graham confirmed that he was more than content to have the children continue to live with their grandparents. As described by
Ms Dawson in the Family Report (par.12), “Mr Graham believes the children should stay at the Coast with their grandmother and visit with him. He states he would not be adverse to the children living with him.” In passing, and as noted above, nowhere in the current proceedings (so far as I can see) is there any reference to the paternal grandparents. Doubtless there is a good reason for this about which I can be advised in due course.
Earlier in these reasons I indicated Mrs Magee’s preference for the children to live with their Mother but only after certain other matters had been resolved. I need not repeat those matters. To add to the complex family dynamics in play, it seemed something approaching common ground that Mr Graham and Mrs Magee had not been close but now were at least aligned.
An astute submission was made by Ms Burgess on behalf of Ms Magee at the interim hearing on 23rd September. While not derogating from the principal order sought that the orders of June 2006 be adhered to and the children return with their Mother to Queensland, Ms Burgess suggested that in the current fluid circumstances that surround
Ms Magee’s relationship with Mr H, and other matters that might generally be described as `still in motion’ if not decidedly unsettled, the Court should consider granting the orders sought but suspending them for a period of time until Ms Magee’s living and relationship circumstances are more stable.[2] In a number of respects, this submission mirrored Mrs Magee’s proposal. Indeed, the practical effect of Ms Burgess’s submission may well be identical to the orders sought by Mrs Magee. I will come back to this and related matters shortly.
[2] Transcript (23 September 2008) p. 20-30.
It would appear from what was said in Court during the interim hearing that Ms Magee has travelled back and forth to Queensland and the South Coast on a number of occasions in recent times. I understand that her living situation on the South Coast was impractical, to say the least. And as I have noted, she has quite a number of other matters going on in her life that are in a state of flux – to put it as neutrally as possible. In the light of what has been stated summarily, I trust it will be reasonably apparent why I adopted the High Court’s recent description of certain litigation as like `the Sargasso Sea.’
Before moving to the statutory considerations prescribed by the Family Law Act 1975 (“the Act”) that I must take in to account, I need to refer to the material provided to the Court in the rather urgently scripted Family Report from Ms Dawson, dated 8th September 2008.
The Family Report
In part because the parties and their legal advisers (including those then acting for Mr Graham) each received a copy of the Family Report, I will not rehearse all of the various claims and history recounted in it. Rather, I wish to focus primarily on Ms Dawson’s comments and observations in relation to the children.
It can suffice for the current proceedings to note the following. [X] referred to some incidents of family violence involving Mr H’s family. He said to Ms Dawson on more than one occasion that he was sick of changing schools and that he liked [M] Public School where he had a lot of friends. He said to Ms Dawson that he would `rather stay than go to Queensland with Mum.’ He said that `everything was in storage waiting to see what happens.’ His message to the Court was (par.30) that “he wanted to live at my Dad’s and see Mum every second weekend at Grandma’s.”
As far as [Y] is concerned, she too stated to Ms Dawson that she really did not wish to go to Queensland. She said that she wished her Mother to stay with her, presumably down the South Coast. She also said that she liked the school at [M], which was better than Canberra and Queensland. [Y] also said that she had experienced bullying in schools in Queensland and Canberra. According to Ms Dawson (par.35), [Y]’s message to the Court was that `she wished to go to Dad’s, to have Saturday and Sunday at Mum’s [at an unspecified place] and on other days go to Grandma’s.’
Ms Dawson noted that the children appeared to have settled at the Coast. Their frequent moves in recent times have, in Ms Dawson’s view (par.43), “left them wary of returning to Queensland.”
The focus of Ms Dawson’s recommendations was less prescriptive as to immediate outcomes and more to highlight the basic concern for the children’s lack of stability in their living situations in the last couple of years. She also understandably highlighted the children’s basic anxieties that flow from the various and varying relationships around them that are themselves either fractured or severely strained. It seemed to me more that, at this interim stage of proceedings,
Ms Dawson was less inclined to make any long term recommendations and more to highlight the fundamental needs of the children, and no less so their Mother, to have the appropriate time and circumstances to repair the effects of their recent highly stressed living situations and the strained relationships in play. In particular, stability and predictability are essential for the children, and equally so Ms Magee, to allow appropriate healing to begin. I agree with her focus and concerns.
I move now to the building blocks that constitute the legislative pathway set out in Part VII of the Act and prescribed by the Full Court in Goode v Goode (2007) 36 Fam LR 422.
Jurisprudential Considerations
A most helpful summary of the statutory matrix of Part VII of the Act was set out by Brown J in Mazorski v Albright. Her Honour 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)).[3]
[3] (2008) 37 Fam LR 518 at [3] – [6].
Against this jurisprudential background I will deal firstly with the presumption of equal shared parental responsibility under s.61DA.
Under the orders made by FM Mowbray in June 2006 Ms Magee had sole parental responsibility for the children. Those orders were made just prior to the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Because of the orders I propose making in these proceedings, and in the light of the current circumstances, it would not be appropriate for one parent only to exercise sole parental responsibility. In my view, and until the final hearing, and in the absence of any agreement in writing between the parties, and notwithstanding the obvious tensions between the parties -and inherent in such an order - parental responsibility should be shared equally between Ms Magee, Mr Graham and Mrs Magee. In making this order, I have no reason to doubt that each of these adults wish to place the best interests of the children as the paramount consideration (s.60CA), even though their actions have not always exhibited this principle as a daily reality.
Such an order requires me to consider the application of s.65DAA. I will return to that section and its operation to the facts of this case after I tread the famous statutory pathway.
As Brown J’s summary observed, the objects and principles in s.60B(1) & (2) include especially children having the benefit of both of their parents having a meaningful involvement in their lives, and of them spending time on a regular basis with both of their parents and “other people significant to their care” (s.60B(2)(b)), such as their maternal Grandmother, Mrs Magee. Part of the protection about which the Act speaks in Part VII and elsewhere includes shielding the children from physical and psychological harm.
For my part, given the stresses and strains under which the children have been living for quite some time, it is essential that their stability and welfare comes first. In saying this, I am acutely mindful also of the stresses and strains especially on Ms Magee, many of which were readily acknowledged by her experienced solicitor, Ms Burgess. Indeed, some of them are graphically set out in a somewhat lengthy SMS message Ms Magee sent to Mr H and then forwarded to her Mother on 14th July 2008. It is annexed to Mrs Magee’s affidavit of 12th August 2008.
Mrs Magee too is clearly and understandably under strain, caring for the children, looking after her unwell husband (according to
Ms Dawson’s Report), and dealing with the deep and obvious rupture in the relationship with her daughter. The pain and distress of the
two women involved is palpable.
While time spent with a parent is not determinative of the quality of the relationship with the child, it must affect the capacity of relationships under stress to nurture a meaningful relationship between both parents and the children. Such meaningful relationships are one of the primary considerations under s.60CC(2).
I have already recorded the views of [X] and [Y], as stated to
Ms Dawson. These views, as a matter of common sense and as the first additional consideration under s.60CC(3)(a), must be given significant weight. Even though Ms Dawson rightly observes that [Y] does not fully appreciate the ramifications and implications of all the differing forces in play at the moment, she was clear in her view, as was [X], even more so. If no other factor was to be considered, these quite strong views are, in my view, almost determinative of the issue of where the children should live, at least on an interim basis.
From what has been said, it will be clear that there cannot help but be significant stresses on the children’s relationship with their Mother at the present time. Her life, in her eyes, may be likened to being under siege from multiple forces at the present time. Until those forces are dealt with satisfactorily, the children must be as quarantined from them as the blunt instrument of the law can provide. And whatever the nature of the instrument, blunt or otherwise, the intention is that judicial intervention will be therapeutic, not only and primarily for the children, but for all those embroiled in or affected by these proceedings.
While the children are clear about not wanting to return to Queensland, and there seems to be no dispute that until recently Ms Magee has been the children’s primary carer, there is the sad irony that they currently want to live with their Father (according to Ms Dawson), but he seems less than enthusiastic to have them live with him and is quite content for them to continue to live with Mrs Magee. Added to this is Ms Dawson’s observation (Report par.48) that “Mr Graham’s parenting as the main carer is untested.” Added to all of this, in a general (i.e. unsworn) discussion with the parties and their legal advisers in Court Ms Magee said that Mr Graham’s partner was very good with the children.
From what has been said, it will be apparent that the children’s relationships with the various adults involved in their lives are rather fraught and complex. That is perhaps the best that can be said for the purposes of s.60CC(3)(b).
The various positions of the adults in the proceedings have already been traversed at some length already. It provides context for and perhaps renders detailed consideration of the respective capacities of each parent (and Mrs Magee) to promote the children’s relationship with the other parent a tad moot. Certainly, I have the impression that Mr Graham is unlikely to promote the children’s relationship with their Mother to any significant degree, especially if she continues to consider moving back to Queensland. Indeed, he said in Court that he was more than happy to take part in mediation to try to settle the matter but would only do so if the `Queensland option’ was no longer on the table.
Ms Magee seems to have the capacity to promote the children’s relationship with their Father, but is currently heavily (and understandably) focussed on the stresses of her failed relationship with Mr H, and re-establishing herself in that State. Balanced against this are the various SMS messages annexed to Mrs Magee’s affidavit in which Ms Magee’s troubled life and general angst about a large number of features of her life (past and present) are painfully laid bare.
These matters of parental capacity are, of course, caught up in s.60CC(3)(c) & (i), and to some extent (f), and s.60CC(4).
Clearly, if Ms Magee moves back to Queensland, there would be significant practical difficulties and expense for the children to see their Father and their Grandparents at the South Coast. The same is true, but in reverse, if Ms Magee returns to Queensland without the children and they remain with either their Grandmother or their Father (s.60CC(3)(e)).
Issues relating to family violence have already been adverted to earlier in these reasons, and may therefore simply be noted for the purposes of s.60CC(3)(j) & (k).
It may at least be implied that the orders I propose are the ones least likely to lead to further litigation. It is hardly likely that any judicial officer will make orders that are designed to inflame litigation!
Conclusion
I have already acknowledged the force and shrewdness of
Ms Burgess’s submission regarding the existing orders of
FM Mowbray to be reinstated or to become operable again upon a number of matters in Ms Magee’s life being resolved. To some respects I will accede to it, but with some qualifications. The children must continue to live with their Grandmother, Mrs Magee, until further order of the Court. This course necessarily requires that there be a formal order suspending the orders of FM Mowbray made on 2nd June 2006.
For that reason alone, but also in the light of the current circumstances, I cannot deal specifically with the provisions of s.65DAA regarding either an equal shared time arrangement between the parents, or that which would directly constitute a regime of time spent with either parent that is substantial and significant.
Until Ms Magee’s relationship, living and employment situations have stabilised, as suggested by Ms Burgess, I can only order that the most liberal time that the children spend with their Mother be negotiated between her and Mrs Magee. There seems to be few problems in
Mr Graham making arrangements with Mrs Magee to spend time with his children.
Until Ms Magee’s relationship with Mr H has been completely resolved, and her living and employment circumstances have fully and finally stabilised, it would be, in my view, premature to make any further orders either regarding the reinstatement of the orders of June 2006, or any variation of them.
I have already stated numerous times that [X] and [Y] need stability and emotional security. Unfortunately, there is still some way to go for that to be achieved in Ms Magee’s life and therefore the children’s life with her.
The matter is to come back before me in 6 month’s time for review. At the same time and for more abundant caution, I formally list it for final hearing on 18 and 19 June 2009. Given the fluidity or instability in the matter, I will also make an order that the parties have liberty to have the matter re-listed on 14 day’s notice.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of FM Neville FM
Associate: J. Curtis
Date: 23 October 2008
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