Mellick and Mellick
[2010] FMCAfam 869
•29 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MELLICK & MELLICK | [2010] FMCAfam 869 |
| FAMILY LAW – Interim parenting arrangements – interim residence – separation of siblings. |
| Family Law Act 1975, ss.4, 61DA, 60CC, 65DAA |
| Goode & Goode (2006) FLCA 93-286 Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Cowling& Cowling [1998] FamCA 19 Cilento& Cilento (1980) FLC 90-847 Griffiths& Griffiths (1981) FLC 91-064 Rainer & Rainer (1982) FLC 91-239 AMS & AIF (1999) CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MR MELLICK |
| Respondent: | MS MELLICK |
| File Number: | PAC 2030 of 2009 |
| Judgment of: | Harman FM |
| Hearing date: | 29 June 2010 |
| Date of Last Submission: | 29 June 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 29 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Counsel for the Respondent: | Mr Singh |
ORDERS
No later than the first day of term 3 2010 the child [X] born [in] 2005 is to be re-enrolled at [S] School, [M] and to thereafter attend that school.
PENDING FURTHER ORDER each of the parties is restrained from changing [X]’s school from [S] School, [M] save with further order of this Court or the written consent of both parents first having been obtained.
PENDING FURTHER ORDER that the child [X] is to live with his father:
(a)during school terms from the conclusion of school Wednesday until the commencement of school the following day (Thursday) commencing Term 3 2010;
(b)Each weekend from after school Friday until 6pm Sunday provided however that if the father is living within 30 minutes driving distance of [X]’s school such time will extend to the commencement of school Monday;
(c)for one half each school holiday period commencing with the July 2010 school holidays and PFO being for the first half of such holidays being from conclusion of school Friday until 5pm on the middle Saturday;
(d)for one half of the Christmas school holidays in each year on a week-about basis with [X] to live with the father in 2010 for the first week of the school holidays and to conclude 5pm Christmas Eve and thereafter on a week-about basis;
(e)such further and or other period as is agreed between the parties from time to time.
That the child [Y] born [in] 2009 shall live with her father:
(a)Until 27 August 2010, from 9am until 5pm each Wednesday and from 9am until 5pm each Saturday and Sunday;
(b)From 27 August until 3 December 2010, in each week from 9am Wednesday from until 9am the next day (Thursday), and from 9am Saturday until 5pm Sunday;
(c)From 3 December 2010, from 9am Wednesday until 9am Thursday (and during school holidays to occur in the weeks when [X] is living with his father) and from 6pm Friday until 6pm Sunday;
(d)In addition to the above time and during school holidays, and whilst [X] is living with his father for periods of one week, that [Y] shall spend the above periods living with her father.
At all other times, save as provided in these orders for [X] and [Y] to live with their father, that [X] and [Y] shall live with the mother.
For the purpose of the children passing into the father’s care pursuant to the above orders the father shall for the weekend of 2 July 2010 collect the children from and return the children to [shopping center omitted], and thereafter changeovers shall occur:
(a)In relation to [X] and where appropriate by collecting him from and returning him to his school at [M];
(b)On all other occasions and for both children at McDonalds [suburb omitted].
Each party shall notify the other forthwith and contemporaneous with the event of significant illness, accident or significant injury of either child and shall do all things, sign all documents and give all consents and authorities necessary to enable both parties to be fully advised and consulted regarding such treatment as is recommended or provided and to visit the child or children if hospitalised.
Each party shall advise the other forthwith upon becoming aware of same of any specialist medical appointment for either child and each party shall do all things, sign all documents and give all consents and authorities necessary to enable each parent to be fully and properly advised and consulted regarding such treatment.
That each party shall do all things, sign all documents and give all consents and authorities necessary to authorise and direct any school, preschool or day-care centre attended by either child to discuss with each parent the child’s attendance and progress, to provide copies of newsletters and reports and full access to all information for programs and activities to which parents are invited or entitled to participate in.
Each party shall keep the other advised at all times of their residential address at which the children will be living with them together with a contact telephone number provided however that each party shall refrain from contacting the other parent save:
(a)to advise of any difficulty or delay in attending changeover; or
(b)to advise information required by the above orders or to comply with those orders.
That the parties and each of them are forthwith and within 72 hours to contact a community based or private Family Dispute Resolution Practitioner for the purpose of arranging and participating in an intake appointment with a view to then participating in family dispute resolution as required by the Act and upon completion of family dispute resolution a s.60I certificate as issued by the practitioner is to be filed with the court to evidence compliance.
BY CONSENT, WITHOUT ADMISSIONS AND PENDING FURTHER ORDER the father is restrained from dealing with or disposing of the proceeds of sale of his [omitted] business (the sale of which, I am advised, occurred in or about February 2010) save for the purpose of meeting liabilities of that [business] or arising from it’s sale, meeting liabilities with respect to the two parcels of the real estate Property B and Property N or an additional sum of no more than $1000.00 per week.
BY CONSENT, WITHOUT ADMISSIONS AND PENDING FURTHER ORDER the father is restrained from disposing of and further encumbering the above two parcels of real estate.
The Court notes the above consent is provide by the father in circumstances wherein he has been served on 27 June 2010 with the mother’s application seeking restraints and has not yet had the opportunity to reply.
The father is to file and serve an Amended Application or Reply addressing issues of property adjustment no later than close of business 30 July 2010.
That the parties are to attend a Conciliation Conference with a Registrar at 9.15am on 3 September 2010.
Not less than 7 days prior to the Conciliation Conference each party is to undertake mutual informal discovery and in the event that there is any particular document or class of documents that either party seeks to be provided with then a request for the provision of those documents is to made of the other party no later than close of business 6 August 2010 and the documents are then to be provided by close of business 20 August 2010.
Each party is to provide irrespective of any request by way of mutual informal discovery to the other by 20 August 2010:
(a)A market appraisal or appraisals of each of the parcels of real estate referred to above and the father shall cooperate in allowing access to agents or valuers instructed by the mother prior to that date.
(b)Copies of all documents relating to the sale of the father’s [business omitted] and such as to disclose the nett proceeds of sale received and the present nett balance and documents explaining any diminution or increase.
(c)Copies of income tax returns and assessment notices for each party individually and for any entity in which that party controlling or otherwise for the last 3 financial years and if at all possible the parties should endeavour prior to the Conciliation Conference to complete 2010 returns.
(d)Copies of any bank statements with respect to any account in which either party has an interest whether singularly or otherwise.
The matter is listed for further mention and directions before me at 9.30am on 15 September 2010, estimated half hour, for the purpose of making further trial directions if the matter is not resolved and on that date each party is to attend, whether legally represented or not, and is to be in a position to indicate:
(a)the issues which remain in dispute;
(b)whether there are any valuation issues with respect to assets;
(c)whether there are any issues with respect to discovery or provision of information;
(d)what witnesses they propose to call;
(e)a considered estimate of the anticipated length of trial;
(f)whether either party considers that a Family Report is required.
That liberty is granted to both parties to relist these proceedings on 7 days notice whether by telephone or in person in the event of any allegation of non-compliance with the above interim parenting orders or other difficulties arising out of arrangements at that time and, upon such listing date being made known, the party requesting the listing is to forthwith advise the other party of the listing date, it’s purpose and intention and the orders that will be specifically sought on relisting.
Neither party shall file any further Application in a Case or Contravention Application relating to the above interim parenting orders until such time as the above relisting has occurred.
In the event that the parties have been able to resolve some or all issues on a final basis prior to the listing on 15 September 2010 then leave is granted to file Terms of Settlement and orders will then be made in Chambers and, if appropriate to do so, further listing dates vacated.
Both parties are to comply with the above directions in preparation for a Conciliation Conference and so as to ensure that conference can proceed and the Court directs that the conference is not to be administratively adjourned.
IT IS NOTED that publication of this judgment under the pseudonym Mellick & Mellick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2030 of 2009
| MR MELLICK |
Applicant
And
| MS MELLICK |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving interim parenting applications by each of the parents of two children, [X] and [Y]. [X] is six years of age and [Y] will, [shortly], turn one year of age.
Regrettably on her birthday these parties will be before a local court in the state jurisdiction dealing with contested domestic violence proceedings. Those proceedings of themselves loom large in this matter.
As interim parent proceedings, the Full Court has been very clear in cases such as Goode & Goode (2006) FLCA 93-286, and more recently Marvel [2010] FamCAFC 101, as to the process that is to be adopted by the court in dealing with the matter.
I am to, firstly, look at the proposals of the parties, to then turn to the uncontested or agreed aspects of evidence, then to look at issues in dispute between the parties, turn to the presumption under s.61DA of equal shared parental responsibility and, subject to such determination as is made as to whether it is rebutted or not, to then, applying a dual test of reasonable practicality as the High Court has reminded us in MRR & GR [2010] HCA 4 and the child’s best interests as set out in s.60CC, to determine what arrangements would be appropriate.
If the presumption is not rebutted, I am required to start by considering equal time, then substantial and significant time, and only after those considerations and, if not satisfied either of those would be appropriate, to move on to consider what time arrangement would best promote the children’s best interests. In addition to aspects of time, there is also suit in this matter with respect to a specific issue relating to [X]’s schooling and, in particular, whether he should return to the school that he had previously attended until on or about the 22nd or 27 May, which ever date is relevant, when the mother moved to [C] and, at that point in time, unilaterally changed [X]’s school to [C] School.
In relation to the parties proposals, the mother and father are not dramatically apart although they are in significant aspects. The father proposes, in a minute of the order attached to a case outline provided to me by counsel for the father, a graduated regime with respect to [Y] that would see her spending day time visits with her father each Wednesday and each Saturday and Sunday until 25 July and, thereafter, each Wednesday morning til Thursday morning, and each Saturday morning til Sunday evening. In relation to [X], the father proposes that he commence time immediately from Wednesday before school til Thursday before school each week, and from Friday afternoon until Sunday afternoon each week. In addition to that, it would appear common ground between the parties, at least once [Y] turns 18 months of age, which will not occur until 2 January 2011, that both children would attend for one half of the school holidays although the father seeks orders with respect to half school holidays with [X] and a lesser regime with respect to [Y].
In relation to uncontested facts, there are precious few in this matter. That is not uncommon in interim proceedings and in a long line of Full Court authorities, ending with Goode but preceding that, Cowling & Cowling [1988] FamCA 19, Cilento & Cilento (1980) FLC 90-847 Griffiths & Griffiths (1981) FLC 91-064 and Rainer & Rainer (1982) FLC 91-239, have all acknowledged the pressures upon the court in seeking to make an interim determination in a limited time, often, as in this case, with circumstances of urgency, and little material and far less agreement. Those pressures have been increased by the present wording of the legislation which requires, in effect, exactly the same exercise to be applied in interim as in final proceedings.
The agreed and uncontested facts of the matter certainly include a germane issue being the mother’s removal of herself and the two children in her care to [C] on either 22 or 27 May and [X]’s consequent change of school.
There remain a large number of issues in dispute between these parties, far more than one would think relevant to parties who have lived together for a reasonable period of time. The parties have recently embarked on defended divorce proceedings wherein their dispute has been whether separation occurred well over 12 months ago and in 2008 or as recently as January of this year. I am not required to make any findings in relation to that issue today nor am I bound by findings made by others in relation to that matter for today’s purposes.
In any event, what is not in dispute and would not appear to be in any way contentious, is that since the beginning of this year there has been regular daily involvement of both of the parents in the children’s lives and, indeed, prior to January of this year, the parties had, whether they were or were not separated or one party considered the marriage at end or not, lived in the same home. As a consequence of that, [X] was enrolled in a school in the [M] area where the parties were then living in rental accommodation. The lease on that accommodation expired in April of this year and some weeks after the lease ran out and whilst the parties were tenants from week to week, the mother moved to [C]. That would appear to be to take up cohabitation with her partner and fiancé, Mr B, who has also filed an affidavit in these proceedings, and has loomed large in the evidence of both parties.
The other matters that are not in dispute from the material before me is that [X] appeared to be relatively settled in his new school and doing well. That much I can glean from the mother’s affidavit where concessions are made at paragraph 57 onwards that [X]’s school teacher indicated that he had settled in the classroom very well, had quickly made friends, enjoyed playing in the playground at lunch time and that the teacher was impressed with [X]’s reading. That has continued when [X] has moved to [C] School. That suggests to me that [X] is an adaptable child who is well adjusted and able to cope with change and has coped, it would appear to me, better with the separation than perhaps his parents are.
The unseemly haste, if one is to accept the father’s position as to when separation occurred, or at least when physical separation between the parties occurred, with which the mother has entered into a new settled relationship is no doubt the cause of great anguish for the father.
The mother describes that relationship in some detail in her affidavit beginning at or about paragraph 53 and continuing.
What is remarkable with respect to the mother’s evidence, and which comment was raised with her counsel during the course of submissions, is that the mother’s affidavit material suggests that she has moved to an idyllic circumstance, set up a new family environment, of which Mr B is an integral part, who is described as taking time out of his day each day to come home and to hug and kiss all present, and one is left with the very clear impression that the mother has formed a new family unit into which she considers the father to be little more than an intrusion.
In relation to the presumption, I am satisfied that it does apply in this case and is not rebutted. I am urged to treat the matter otherwise and, on the basis that there is an interim domestic violence order and a charge of breach of domestic violence order pending. Those matters will be determined, as I have remarked, this Friday, subject to being reached. In any event the legislation is clear that I am not to have regard to an order made on an interim basis on a without admissions basis and I do not.
Section 61DA sub.s(3) allows the presumption to not be applied if I consider that it is inappropriate to do so. However, I do consider it appropriate for the presumption to apply if, for no other reason than each of these parents, in their respective applications, have sought an order for equal shared parental responsibility and, accordingly, I intend to make such an order.
That then gives rise, under s.65DAA, to a requirement for me to start by considering equal time, having regard to whether it is reasonably practical, as defined in s.65DAA subsection (5), and as to whether it is in these children’s best interests having regard to s.60CC.
In relation to practicality, such practical difficulties as exist in this matter are not, with the exception of the geographical distance between the parties, problematic. Section 65DAA sub.s (5) requires me to consider how far the parties live apart. Until as recently as a month ago, the parties lived in very close proximity, up to half an hour apart, but no more. The parties were perfectly able to facilitate arrangements.
I am also required to have regard to the parents’ current and future capacity to implement an arrangement for the children spending equal time, or substantial and significant time, with each parent. That, if the parties remain residing where they are, potentially is problematic, although I am told in submissions from the mother’s counsel that the travel distance is something in the nature of 45 minutes between the father’s present home and [C]. My knowledge of the geography of that area is not great but I have difficulty accepting that it is that time to cover to cover that distance. In any event, what turns on that is very little having regard to the issue in relation to [X]’s school.
I am required to consider the parents’ current and future capacity to communicate with each other and resolve difficulties. The parties have had some difficulty of late resolving difficulties and I accept that that has particularly been the case since the mother and father have physically separated earlier this year. However, for a period, on the mother’s case, of around 18 months, the parties have been able to communicate and problem solve so well together that they have lived under the one roof and enrolled the child in a school that is agreed between them.
I am required to consider the impact that any arrangement I order will have on the child or children. I do not think that that has any great relevance at this point in the matter.
In relation to s.60CC, there are two primary considerations, being the need to protect a child from harm, to paraphrase, and the child’s right to a meaningful relationship with both parents. There are no issues in this case that I have been taken to that would satisfy me that there is a risk of harm from either parent nor any arrangement proposed by either parent.
I can also infer that, notwithstanding that I am urged to have particular regard to the interim domestic violence order and consequent outstanding charge, the arrangements proposed by each of the parties ultimately arrive at the same point. The mother wishes to move forward far more slowly than the father but does propose that within six months [Y] would be spending time with her father from Saturday to Sunday each alternate weekend, for half of school holidays and for other periods of time.
I am not satisfied that alternate weekend time with a child of [Y]’s age is anywhere near sufficient but the parties are not at odds with each other that we would be moving towards at least one night over night in the very foreseeable future.
The other considerations under s.60CC do not have any great relevance other than the matters I have already referred to from the parties’ evidence. Having regard to the ages of these children and the absence of any clear evidence I do not place any weight on either child’s views.
I am satisfied, based on the evidence and the concessions by each party, that the children have a good relationship with both parents and that both parents have had an active involvement, whether equal or otherwise need not concern me, in the children’s care.
I do have some concerns about the mother’s willingness and ability to facilitate the father’s relationship in light of what would appear from her evidence to be a desire to “move on with her life” with some disregard of the father’s relationship with these children and based not only on the physical distance she has created between them. I put it no higher than that. However, as I have indicated earlier in these reasons one is left with a flavour from the mother’s material that she has formed a new happy family unit and the father is an intrusion within it. The mother’s actions in unilaterally removing [X] from his school and moving herself to cohabit with her partner, which she is perfectly entitled to do, but to do so a substantial distance away causes me some concern and suggests a disregard for the father’s involvement.
That is not a concern that I can act upon in any real way on an interim basis but at a final hearing it may have some significance. In any event, I am satisfied in relation to those issues that the likely effect of change in the child’s circumstances would be for the better if a regime is now put into place that obviates the difficulties that have been quite apparent since April of this year when there has been little or not time between these children and their father.
I am also concerned in that regard by the number of children’s parties that are advanced as reasons why the children cannot spend time with their father or would limit the time with their father particularly in light of the time that has passed since the father and these children have had any real practical time together.
Practical difficulty and expense is a matter entirely within the mother’s control. She has created the present practical difficulty and expense which until a month ago when she moved did not exist. Mr Givney is quite correct in pointing out that no reason is given by the mother as to why she has moved. The High Court has been clear in AMS and AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238 that parents who seek to relocate or relocate are not required to demonstrate a compelling reason but that the reason of itself can impact on the court’s considerations. In this case the absence of any explanation other than to describe the new arrangement in idyllic terms as “moving to a beautiful beachside suburb”, to describe the proximity to beaches and “the wonderful activities” -and I accept that it is wonderful for both the mother, Mr B and both children to engage in games and arrangements in or about that area – but regrettably they exclude the father and they are at his expense and cost and at the expense of his relationship with the children.
It is to be remembered that each party does seek an order for equal shared parental responsibility that incorporates an obligation for the parties to consult with each other and to seek to make joint decisions regarding major issues.
Major long-term issues are defined in s.4 of the Act as including matters such as the children’s education, both current and future, which of necessity means any change in school; and changes to the children’s living arrangements that make it significantly more difficult for a child to spend time with a parent. That is exactly what the mother’s move to take up cohabitation with her partner has brought about.
The balance of matters under s.60CC have little relevance in this case.
I am satisfied each parent has the capacity to meet the children’s needs.
There are no substantial issues regarding the children’s maturity, sex, lifestyle or background.
Neither child is of an Aboriginal or Torres Strait Islander background.
The attitude to the children and the responsibilities of parenthood would not appear to be criticised by either party beyond the matters I have referred to above.
Whilst there is a family violence order in force it is not a final order and it is presently seriously contested and will be determined on a final basis this week. Accordingly, sub.s(k) does not allow me to have any serious regard to that issue other than the mere allegations that the parties make, allegations which I noted in remarks to counsel for the mother during submissions, do not include any allegation whatsoever of physical violence or threat of physical violence to any person. They would appear to, largely, turn upon a number of text messages of a non-threatening nature and those issues will be left to another court to deal with this Friday.
These are interim rather than final proceedings. I am not satisfied that the unilateral creation of difficulties that might, at least as regards distance, suggest an absence of reasonable practicality should be allowed to dictate the arrangements to apply pending disposal of the proceedings. The considerations are quite different. Finding and managing stability has a greater importance in my mind.
In all of those circumstances and for those reasons I am satisfied that it is appropriate that [X] return to the [S] School at [M]. I am not urged to make any order with respect to use or occupation of any of the parties’ properties which I understand from the minimal evidence that is before me, with respect to property, is all in the husband’s name. They are matters that can be dealt with at a latter time and at final hearing and through conciliation but it is a matter for the mother what she does to meet her obligation under any order that this court makes and I make clear that if this court makes orders it creates obligations to parents to comply and they are expected to do so.
I do not see any usefulness to be achieved by [X]’s week being interrupted but commencing with term 3, 2010, he is to be re-enrolled at the [S] School, [M], and thereafter his school not changed by either parent save with the written consent of the other.
I hasten to add that I have not made and am not asked to make any order regarding the mother’s place of residence with these children. However, it would clearly be contrary to these children’s best interests to be exposed to substantial travel on a daily basis and should the mother choose to remain where she is and expose the children to that disadvantage then I will revisit the applicable interim parenting orders on the next occasion and consider that attitude as part of the relevant evidence.
Before pronouncing orders I would remark in relation to the affidavit material, whilst it is well-prepared, there is a very substantial volume of correspondence attached to that material which reflects near daily communication between the parties’ solicitors. For their benefit they should be aware of the cost that they are no doubt incurring in doing that. That is not a criticism of solicitors. They perform work and like any other tradesman, professional or employee they expect to be paid for what they do but it would be beholden of the parties to seek to find some other way of regulating their communication as, quite clearly, that has been, at least in relation of 17 April and for reasons outside of the father’s control on that particular occasion, ineffective in assisting the move towards a conclusion and that what they need to move towards.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 18 February 2011
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