McNaulty & McNaulty (No 2)
[2023] FedCFamC1F 447
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McNaulty & McNaulty (No 2) [2023] FedCFamC1F 447
File number(s): BRC 14443 of 2022 Judgment of: BAUMANN J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – PARENTING – INTERIM – Where the Registrar ordered the return of the children to the mother’s care, with such orders stayed – Orders made for the children to remain living with the father Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 24 May 2023 Place: Brisbane Counsel for the Applicant: Ms K McMillan KC Counsel for the Applicant: Mr R Cameron Solicitor for the Applicant: Peter J Sheehy Solicitor Counsel for the Respondent: Mr S Williams KC Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 14443 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR McNAULTY
Applicant
AND: MS McNAULTY
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
24 MAY 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the children, X born 2011 and Y born 2013 (“the children”) remain living with the Applicant father.
2.That unless otherwise agreed, the child shall spend time with the mother as follows:
(a)During the New South Wales school term two (2) commencing on Monday, 24 April 2023 and ending on Friday, 30 June 2023, for two (2) non-consecutive weekends on the City B:
(i)from a flight departing Sydney at no later than 10.00am on Friday, 2 June 2023 until a flight departing City B by 4.00 pm on Monday, 5 June 2023, and
(ii)from a flight departing Sydney at no later than 10.00am on Friday, 16 June 2023 until a flight departing City B by 4.00 pm on Monday, 19 June 2023.
(b)For all the New South Wales term two (2) school holidays, from 10.00am on Saturday, 1 July 2023 until 4.00pm on Sunday, 16 July 2023;
(c)During the New South Wales school term three (3) commencing on Monday, 17 July 2023 and ending on Friday, 22 September 2023, for two (2) non‑consecutive weekends on City B:
(i)from a flight departing Sydney at no later than 10.00am Friday, 4 August 2023 until a flight departing City B by 4.00 pm on Monday, 7 August 2023, and
(ii)from a flight departing Sydney at no later than 10.00am Friday, 25 August 2023 until a flight departing City B by 4.00 pm on Monday, 28 August 2023.
(d)For all the New South Wales term three (3) school holidays from 10.00am on Saturday, 23 September 2023 until 4.00pm on Sunday, 8 October 2023.
(e)During the New South Wales school term four (4) commencing on Monday, 9 October 2023 and ending on Friday, Tuesday, 19 December 2023, for two (2) non-consecutive weekends in City B as follows (with all times being reference to AEDT time):
(i)from a flight departing Sydney at no later than 10.00am Friday, 20 October 2023 until a flight departing City B by 4.00pm on Monday, 23 October 2023, and
(ii)from a flight departing Sydney at no later than 10.00am Friday, 17 November 2023 until a flight departing City B by 4.00 pm on Monday, 20 November 2023.
3.That unless otherwise agreed, and save for the children’s flights for the weekend of 2 June 2023 to be booked by the father, the mother shall book all flights under these Orders and arrange for the children to fly as unaccompanied minors from Sydney to City B and return with such Australian domestic airline.
4.That the father shall take the children to the Sydney airport at the commencement of their time with the mother and shall collect the children from the Sydney airport upon their arrival.
5.That the mother shall collect the children from City B airport upon the children’s arrival and take the children to City B airport at the end of their time with her for their pre‑booked return flight to Sydney and shall ensure that the children board the said return flight.
Payment of airfares
6.That the all airfares and/or costs relating to airfares shall be met by funds held in the trust account of O Lawyers.
7.That the mother and father shall do all things necessary, including providing to O Lawyers any signed authority to cause the monies for the children’s airfares to be paid from the trust account of the said lawyers to the parent booking the airfares to enable that parent to book and pay for the children’s airfares, with the mother and/or the father to produce evidence of the flight costs and associated tickets, for reimbursement.
Other orders
8.That when the children are in the care of the mother they shall not spend any physical time with Mr C save for any incidental observations required by the family report writer.
9.That within forty eight (48) hours of the date of these Orders, the mother do all acts and things necessary to deactivate the Instagram account known as “[…]”.
10.That the parents are thereafter restrained from creating and/or operating any social media accounts on behalf of the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McNaulty & McNaulty has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
INTRODUCTION
The reasons I now deliver are in relation to an interim parenting decision relating to two children, X, born 2011 who is now 11 and a half years of age, and Y, born 2013 who is nearly 10 years of age. These children are the only children of a relationship between the Applicant father and the Respondent mother. I have been asked to make a decision about where the children should live, at least on an interim basis, until further determination of the matter is undertaken during the course of a trial listed by me to commence on 30 October 2023, some five months away.
That trial, in terms of parenting, will at least involve the mother’s primary application that the children be permitted to relocate with her to D State in the United States of America, where her now husband lives and where she hopes to live with him and the children. That application is opposed by the father. The mother’s recent amended Response makes it clear that her current position is that if the children are not permitted to relocate, then she would remain in Australia.
Senior Counsel for the Applicant father and Senior Counsel for the Applicant mother have provided me with written submissions, which were supplemented by oral submissions. I benefited from reading those before delivery of this Judgment. There are other issues which are to be discussed today but these reasons only deal with the parenting dispute.
By way of context, I note the difficulty a Court has on an interim basis, where the evidence is not tested, in making findings, and further noting how, considering I will be the trial judge in this matter, there is every reason to be circumspect in being too robust in findings which may ultimately be different when all the evidence tested. At least I think the following brief background is not in contest.
BACKGROUND
These parties cohabitated from early 1993, married in 2001, and as I say, the children were born in 2011 and 2013. In the early stages of the parties’ relationship, they lived in Sydney where the husband operated a business. However, by October 2015, the parties decided to relocate to City B. X was four and Y was two at the time.
The fact that they lived in City B meant that the husband, I accept, was required to maintain the business interest in Sydney by regular trips to Sydney, which would have meant, and I accept, as the mother suggests, required her to take responsibility for the majority of care when the father was absent. She does not say, nor do I say at the stage, that the father played no role, but rather, as he himself says, was the primary breadwinner.
It seems at least on all the evidence that his “breadwinning” was relatively successful in that the parties enjoyed a quite good lifestyle, including a significant property at Suburb E; a water vessel said to have cost, with improvements, some $3 million; acquisition of other land in F Town which the wife claims is worth over $7 million, and a business that provided a cash‑flow where, if recent decisions of discretionary expenditure are a guide, allowed the parties to enjoy a reasonable standard of living. Of course, the children were also the beneficiaries of this lifestyle, including, it is said, by having the ability to attend and be educated at two private schools in City B – X at G School and Y at H School.
I am satisfied that in early 2021, the relationship broke down. I do not need to go into the reasons for that. It is clear that from then until now, there have been a number of decisions of a financial nature made by the parties, which, it seems, at the very least have put them under cash-flow pressure.
It seems agreed that at least by July 2021, the parties maintained separate residences, and after a period of time, the parties, without court orders, put in place arrangements for week-about care of the children, which operated between approximately December 2021 and November 2022. Since November 2022 however, the children have been in significant uncertainty about their future, all arising, it seems to me, by decisions made by their parents, each of them saying such decisions having been made in the best interests of the children. Whether that is the case or not will ultimately be a focus, in part, at the trial in October 2023.
Nonetheless, on the evidence, it seems that some of these decisions after the week-about arrangement came to an end in November 2023 included:
(a)the mother’s decision, she says with the support of the father, to plan a trip to the United States of America for a holiday during the children’s end-of-year school holidays to meet, further, with her fiancé. The evidence suggests that the mother had – consistent with what she says was the agreement reached with the father – obtained return air tickets for her and the children to leave Australia and return on or about early 2023 for the commencement of the 2023 school year;
(b)the father, however, decided (the mother says without proper notice or pre-action procedures) to commence proceedings in the Court on or about 17 November 2022, the effect of which was to cause an administrative PACE alert or Airport Watch List to be lodged with the authorities which had the effect of restraining the mother from removing the children from Australia for the holiday. The mother is critical of the father’s actions and the father is critical of the mother’s actions. More of that will occur during the trial, no doubt;
(c)however, in a very difficult situation, I accept the mother made a choice to continue with her trip to the United States of America at that time. In using those words, I am not meaning to give the impression that that was an easy choice for the mother, but of course she did have other choices she could have made. The context for those decisions, again, is a matter that will be considered at the trial;
(d)as Mr Williams of King’s Counsel on behalf of the mother submits, the father opportunistically and even in an orchestrated manner, having prevented the children leaving to the United States of America, and having seen the mother leave to go to the United States of America, chose to relocate to New South Wales where he now lives. Suburb J is the name of the town;
(e)I am satisfied the mother, at some time after she left Australia, became aware that the children had relocated. Whether she was aware that in late 2022 the father met, who he claims to be his current partner, Ms K, a 29 year old Country L citizen who began cohabitating with him and the children in early 2022, I do not know;
(f)even though the mother, I accept, was aware of the proceedings before the Court, her first affidavit actually having been sworn when she was still holidaying in the United States of America, the mother did not return to Australia until shortly before a Directions Hearing before a Senior Judicial Registrar on or about 22 February 2023. By this stage, the mother had, during the course of February 2023 on her evidence, and I accept, secured accommodation on the City B. The evidence is silent as to what arrangements the mother had made if she had returned in early 2023 as the initial return tickets suggest was her intention. Certainly there were some difficulties at that time with X returning to G School in 2023 because of non-payment of school fees. The mother has, to her credit, discussed with the school if the child, X and Y, lived with her, for X to return to G School;
(g)Sensibly, the father accepts through his Counsel, Ms McMillan of King’s Counsel, that if the decision is for the children to return to the mother’s care and for X to attend G School’s, then the fees for G School can be paid from moneys in trust – that being an intimation the Court made to both parties; and
(h)the mother, on 1 March 2023, filed amended Response in which she identified her application which she presses today that, effectively, the children live with her. The matter was dealt with by a Senior Judicial Registrar who made Orders on 15 March 2023, stayed two days later, and is now the subject of this review application before me.
DISCUSSION
I have not read nor should I read the Reasons for Judgment of the Senior Judicial Registrar. This is not an appeal. This is a hearing de novo. Therefore, I have not only the material relied upon before the Senior Judicial Registrar in March 2023, but also new material, some of it being filed within the last few days. It is important to make the point that I must deal with the evidence as is before the Court now, with all of the inherent difficulties that arise from not being able to make findings on contested facts.
The evidence is that the children have spent time with the mother over the Easter school holidays and for some weekends, whilst living with the father.
It is not lost on the Court, and a matter of significance identified by Mr Williams of King’s Counsel, that the father, at some time after he relocated to Sydney and considering what he says about his requirement in terms of maintaining the property and business interests of the parties, engaged a nanny, Ms N. She gives evidence about many things, but most importantly for the purpose of today’s decision, she says that she actually attends to the before and after school needs of the children and occasionally for half a day on the Saturday. It is not possible in these ex tempore Reasons to deal with all of the submissions made by Counsel, both orally and in writing. I regard it as a finely balanced position that involves a number of uncertainties and competing proposals.
I accept that when the matter comes before me for hearing on 30 October 2023, the big decision in terms of parenting is initially, of course, the application by the mother that the children relocate with her to the United States of America. Nothing I should say today should indicate any presumption or pre-determination of that application. For example, it would not be appropriate, in my view, for the Court to speculate that, for example, if the children were permitted to relocate, how it might be appropriate for the children to spend more time with the father before they live in the United States of America where time would be less possible or practicably achievable. Similarly, I should not be making a decision speculating that if the children do not relocate, the children might, into 2024 and thereafter, live primarily with the mother in City B, if that is where she then chooses to live, or with the father in Sydney if that is where he continues to choose to live.
Authorities like Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637 make clear the pathway I need to adopt. I do not need to laboriously go through all the primary and additional considerations save to say that apart from, it seems to me, some engagement of at least X in the dispute, neither party raises serious issues of risk of the other parent – the children with them.
That is, neither party on the current material argues that the other parent is affected by use of illicit substances or abuse of alcohol (I note that at least Y makes some mention about the father’s alcohol consumption which might be an issue that needs to be further examined at trial); neither party asserts that the other party is affected by mental health issues or challenges, and there is no evidence that the parties’ relationship to date has been shaped by severe family violence, although of course they are in dispute – much of which is over money, it seems.
In trying to illuminate the pathway to how the decision I have reached in this difficult case today, it being my view that they need a decision today, I take into account some of these factors:
(a)The father’s position is that the children are now settled, and with a trial on 30 October 2023, it is not in the children’s best interests to disrupt their settled environment and current schooling. In my view, of course, although they have been settled to the extent that they have lived with the father in the current property since December 2022 and have attended their school since the star of this year, a significant part of their environment which is not settled is a lack of regular time with their mother who was, at the very least, been an equal carer for the 12 months prior to November 2022;
(b)The father says that his proposal, now amended to include all of the school holidays and regular weekend time on the City B, will preserve, as I understand the submission, the important relationship have with their mother. He asserts that the mother’s primary relocation application and any adjustment to return to the City B schools will be, in fact, short-lived. X, if she is able to return to G School and if the mother’s application for relocation is successful, will only be at G School for a couple of terms. Y is not able to return to H School in any event, but will attend a local state school, M School. The argument is that the current school arrangements for the children provides adequately for their education until a final decision is made;
(c)The father asserts the mother is open to criticism about her decision not to return earlier to Australia knowing the children had relocated with the father. There are also criticisms made by the father about the mother’s use of Instagram for both herself and, importantly, X. I formed the view that they are very much triable issues and must be seen within the context, given by the mother, at some length, which details her decisions, some of which she said were supported by the father in relation to X’s activities on social media, which have, it seems at some level, attracted money and/or attention;
(d)I am certainly not in the position at this time, nor have I formed any view at this time, that the child was being exploited in a way that King’s Counsel for the father suggested. The father really makes no submissions about the comparison between the children living in his home with extensive use by a nanny, and living in the mother’s home with the mother being the primary carer. I infer from the submissions in respect of the whole matter that he says that the parties’ financial situation is very much associated with him maintaining the business interest and cash flow and that that is a proper way of supporting his family, even in their separated state. However, as I indicated to Mr Williams, it is a matter for serious thought by this Court, the comparison between who cares for the children, particularly, when they are not at school;
(e)The mother’s position really comes down to a proposition that returning the children to her will enable the children to re-engage with their usual environment and the parent who has been their primary carer. There is material that suggests that X, at her age and current stage of development, will benefit from having a mother close by, as she manages some of her biological changes. There are allegations made, one against the other, about conversations that are said to have been had with X. I am not able to make findings in respect of that at this stage;
(f)However, as I have already indicated, City B is not necessarily a return to their old environment because their old environment, at least for the 12 months before they moved to New South Wales, involved regular time with each of the parents. I have already noted they have lived in City B since late 2015 and no doubt have developed friends, whether they go to school with them or not;
(g)I am asked to consider the fact that X appears to be a particularly bright child, perhaps gifted, although one gets concerned about tagging children. The evidence suggests that a return to Queensland and, in particular, to G School, if the fees were secured, will maintain her scholastic and academic stimulation and involvement at a higher level. Again, however, on the mother’s primary proposal, that could only be for a couple of terms and, in any event, this child, wherever she lives, if in Australia, will be moving into a different environment through high school at the start of the 2024 school year;
(h)I accept whether or not the mother has been able to give all the names of the children, X regards as important to her is living in City B, and noting what I thought was inappropriate attempts by the mother to obtain that evidence from X through the text messages, I accept that X would have peers that she has grown up with in the G School’s cohort; and
(i)The mother says, and this is, in fact, her most powerful point, in my view, that she will be available to care for the children full-time when they are with her, and that she is not required to rely upon third parties such as a nanny to provide for care in the way that the father has create. Also the extensive time over holidays the children would spend with the father on her proposal would enable his important relationship with the children to be maintained.
CONCLUSION
As I have indicated, I regard this as finely-balanced. Issues which are unclear may become more clear with the benefit of a family report. I have already indicated that the mother was the primary carer of the children for most of their life. I also take into account, as I say, that the children were living in a week-about consensual arrangement – their most recent experience in the 12 months before the relocation to Sydney whilst the mother was overseas.
I do hold some concerns about whether the mother’s decisions in late 2022 and the father’s decision to move to Sydney will meet the test of being entirely child-focused. However, when parties’ relationships break down, they still remain their individual adults, and have needs and requirements and they make the best decisions they can. At least it can be accepted that by the mother leaving, it seems in November 2022 and not returning until just before a date in February 2023, she does not appear to be concerned that the children are at any risk in the father’s care. If she had, one would have thought she would have returned to Australia as quickly as possible and before the 2024 school terms began.
The children have been involved in the dispute to date, and X, at her age and her level of intelligence, probably more so. I am concerned by some of the text messages, and I am concerned about some of the discussions said to be occurring between X and the nanny, Ms N. The parents should try to relieve their children of the burden of feeling they have to solve the problem that these parents are unable themselves to solve.
I take into account that if Y returned to the City B, it will be to a new school, his third in just over six months. Even if X returns to G School’s, on the mother’s case, it would only be, as I say, for possibly terms three and four, as I would not, as the mother seeks, change residence on 28 May, but more likely at the end of this school term.
The Court would be very cautious about any expressions of support, feelings, or preferences offered by the children to each of the parents or those who support the parents. Hopefully, the family report interviews timed for 5 July 2023 will be an opportunity for the children to genuinely express their true feelings about, importantly and at least, the issue of international relocation and if not, if the mother remains in Australia, as she says she will, whether for 2024 and beyond, they desire to live with the mother in City B or with the father in Sydney. The children’s wishes on these issues may not be determinative, but could be given some significant weight.
I have already made the point that the decision I make today must be made on the evidence before me now, which is quite different from the evidence that might have been available to the Court as at the situation on 22 November 2022, or even when the Senior Judicial Registrar was required to make a decision over two months ago.
I have taken all the matters into consideration and have decided that, on an interim basis, it is in the best interests of the children, X and Y, where neither proposal of the parties could be described as optimal because of their choices to live where they choose, to remain living with the father.
The children should spend at least all of the New South Wales end of term two and three school holidays with the mother, and unless otherwise agreed, at least two weekends each term. Although this was not put to the parties, I propose that the children spend time with the mother on those two weekends a term from Friday until Monday. If the parties wish to be heard on that proposal, I will take their submissions. My view is, however, that for these children, it is better for them to spend a little longer with the mother for those weekends, when weighed against the possible disadvantage of them missing what could be only four days of school over the next two months by extending the time. I intend to allow the parties an opportunity to try and determine the exact weekends, bearing in mind the school calendar for New South Wales. Such weekends should take into account not just how many weeks between the last visit, but important issues such as birthdays and if the father so seeks, Father’s Day.
Airfares are to be met from the funds in trust. I propose to make orders as per the mother’s Response with – in the case outline, at paragraphs 7 and 8 relating to the internet. I will say no more about that at this stage.
I indicated to Mr Williams on behalf of the mother that I would accept an undertaking from the mother about Mr C’s contact with the children. Upon reflection, I do not propose to ask the mother to give an undertaking. I propose to make an order. The context for the order is this. The mother is perfectly entitled, as she has, to choose her next life partner. The fact that he is a citizen who lives in the United States of America makes her relationship with him more difficult, I accept. She has some hard choices in her life to make.
Nonetheless, the evidence about the extent to which the children feel comfortable with Mr C is very opaque at the moment. I am concerned that somehow X, through the text message which I have viewed, has had access to some form of reporting – be it accurate or otherwise – relating to some recent, I think, behaviour of Mr C. The mother may or may not be aware of the full events. She says in some text messages that she has spoken to her husband, as he is now, about that event and he has a different version. I, of course, am aware that often people are charged with offences which do not actually identify the seriousness or gravity of the offence.
However, where there is no evidence that Mr C either has the capacity to come to Australia, an injunction which restrains the children from having physical contact with him does not seem to be a particular significant detriment. Of course, any such restraint which I had proposed to order would not include any interaction necessary for the purpose of the family report. I have also considered that the interaction can be by electronic means, but will not be physical. I say that because the Court must be conscious of the fact that the mother has made a choice as to her future partner, and to pretend that he does not exist or to exclude the children from any contact with him by electronic means, which would seem to be the only likely engagement, would, I think, be inappropriate.
Nothing I have said should be seen to suggest I have made any findings about the character of Mr C, his ability to be involved with the children or otherwise. I simply do not know much about him.
Frankly, much the same can be said about Ms K, the father’s current partner. No doubt if the parties are, as they say they are, committed to these new relationships, then the family report interviewer would require both of the parents’ partners or chosen partner to be at least exposed to the rigours of a family report writer’s questioning, and at trial I would expect evidence from these parties. Clearly, the stability of any future relationship the mother and father form is important to the stability that that household could provide these children.
I will incorporate in these published Reasons, the orders that I pronounce, in circumstances where I asked the parties to engage in some further discussions about the form of parenting orders consistent with these Reasons delivered orally.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 1 June 2023
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