Matthews & Matthews (No 2)

[2012] FamCA 473

FAMILY COURT OF AUSTRALIA

MATTHEWS & MATTHEWS (NO. 2) [2012] FamCA 473

FAMILY LAW – CHILDREN – where at the end of a final hearing the children were moved to their father after a finding that an unacceptable risk existed in the mother’s household – where the matter was relisted to assess whether any co-parenting arrangement might be considered now the mother has moved from Far North Queensland to the Brisbane area – where the place to which the mother has relocated does not make equal time or substantial and significant time reasonably practicable

Family Law Act 1975 (Cth)

APPLICANT: Ms Matthews

RESPONDENT: Mr Matthews

INDEPENDENT CHILDREN’S LAWYER: Mr Chris Wright

FILE NUMBER: CSC 456 of 2010

DATE DELIVERED: 1 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Rosen Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray Lyons Solicitors

Orders and notations

1. I note that the mother has indicated that she is currently unable and does not believe she will ever in the future be able to reside within a 45 minute drive radius of the father’s home.

2. Orders 1.1 and 1.2 made 9 November 2011 are final orders.

3. I discharge the condition on Order 1.3 made on 9 November 2011 that made it “pending further order” so that that order becomes a final order.

4. Orders 3 and 4 made 9 November 2011 be discharged.

5. All remaining orders made 9 November 2011 are final orders.

6. In the event there is a significant change in the mother’s circumstances, so that she lives in sufficient proximity to the father to make an equal time arrangement or a substantial and significant time arrangement a reasonably practicable option, she is able to make a further application to the court.

7. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Matthews (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 456 of 2010

Ms Matthews

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 9 November 2011 orders were made which moved the children, T born in August 1999, M born in August 2000 and K born in August 2002 (“the children”) from their mother’s household to their father’s. The children were to be enrolled at P School.

2. The circumstances in which that order was made are described in Reasons of Judgment delivered 31 January 2012.

3. The central issue in the final hearing before me related to the relationship the mother had with Mr T, who was known to the mother as having been convicted of sexually interfering with the 14 year old daughter of his previous de facto partner.

4. I concluded that there was an unacceptable risk to the three children during the period of time that Mr T was a member of the mother’s household. He was still a member of her household at the final hearing.

5. In my Reasons dated 31 January 2012, I considered what orders were in the best interests of the children.

6. The conclusions I reached led to orders being made to immediately move the children to live with their father. The mother said at the end of the hearing that she was terminating her relationship with Mr T and that she would move to Brisbane. Consequently, I did not finalise the proceedings on 9 November 2011. I adjourned the matter for a period of time so that the mother might be able to establish what her new situation was going to be. At paragraphs 94 to 121 of my Reasons dated 31 January 2012, I considered the matters that I am required by statute to consider. I concluded that if the mother moved within a 45 minute drive radius of the father’s premises, then I would further entertain any application the mother wished to make for some co-parenting arrangement. Absent that however, I made a finding that it was in the children’s best interests to reside with their father. So the orders that I made on 9 November 2011 after a defended hearing, made conditional orders that would become final if the mother did not move within 45 minutes radius from the father’s home.

7. I have read the two affidavits that the mother has filed. In paragraph 39 of the mother’s affidavit filed 31 May 2012, she explains that she cannot live within a 45 minute drive of the father’s residence. She is not prepared to share accommodation with any other person. She says that all the people that she knows live on the north side of Brisbane. The mother further indicated that she had applied for assistance under the National Rental Affordability Scheme but that even with that assistance, rent is too high for her to afford in a location close to the father. She was unable to say what was the status of her current application with the Department of Housing (but she said she believed she was not eligible). Her parents are giving her a few hours work a week (and in order to maintain that opportunity she has to be available at short notice). It is clear from the mother’s evidence that there is no reasonable prospect that the mother will move in the foreseeable future to be close to where the children are currently living.

8. As set out in detail in my Reasons for the orders I made on 9 November 2011, which Reasons are dated 31 January 2012, the primary reason why I found it was in the children’s best interest for them to move to their father was the situation that the mother had had the children in for a reasonably long period of time with little insight as to the dangers that she was putting her children in by doing what she was doing.

9. Had the mother moved within a 45 minute drive of the father’s home, some co-parenting arrangement may have been an option I could have considered. If the mother was close by, the father might have a better ability of knowing what the mother’s circumstances were and that the mother would be interacting with the father as they co-parent the children. But that precondition that I set for continuing the final hearing has not happened. I understand the reasons why the mother says it has not been met but, nonetheless, it has not been met. The children have resettled in the father’s home and I have read what the mother has said about concerns that she has. That evidence does not get to the level of a significant change in circumstances that would allow me to revisit the final orders that I have made on the last occasion.

10. The Independent Children's Lawyer submits that the children appear to have settled well with their father and settled well into their new school. This is so, notwithstanding the mother’s evidence in her most recent affidavits about the continuing expression of the children’s preference to be with their mother, a preference that they had at the time of the final hearing. The mother continues not to show any real insight as to the level of risk that she placed the children by entering into and continuing her relationship with Mr T.

11. The Independent Children's Lawyer submitted that given the mother had not fulfilled the pre-condition to have the hearing further extended, that part of the order should be discharged leaving the final orders that were made on 9 November 2011 in place.

12. That position was supported by the lawyer for the father who emphasised the fact that one of the principle reasons why the children were ordered to live with their father was the inability of the mother to make a reasonable assessment of the risk that Mr T posed to the children.

13. The lawyer for the father correctly pointed out that there had been quite a level of disruption to the children moving them from Far North Queensland back to Brisbane and that a further move was not in their best interests.

14. Accordingly, I confirm that orders 1.1 and 1.2 made 9 November 2011 are final orders. I will discharge the condition on order 1.3 and also discharge orders 3 and 4 made 9 November 2011. All remaining orders made 9 November 2011 are final orders.

15. I will note that in the event that there is a significant change in the mother’s circumstances so that she lives in sufficient proximity to the father to make an equal time arrangement or a substantial and significant time arrangement a reasonably practicable option, then she may make a further application to the court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 June 2012.  

Associate: 

Date:  18.6.12