Mellier and Mellier
[2010] FMCAfam 1286
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MELLIER & MELLIER | [2010] FMCAfam 1286 |
| FAMILY LAW – Children – Interim Parenting Orders – two children – older child due to start school in 2011 – [omitted] culture – family violence issues – best interests of the children – parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA(1) |
| Goode & Goode [2006] FamCA 1246; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS MELLIER |
| Respondent: | MR MELLIER |
| File Number: | SYC 2196 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 November 2010 |
| Date of Last Submission: | 1 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Fowler |
| Solicitors for the Applicant: | Haydon Fowler Jessop |
| Solicitor for the Respondent: | Mr Autore |
| Solicitors for the Respondent: | Autore & Associates |
ORDERS UNTIL FURTHER ORDER
All previous parenting orders are discharged.
The Applicant Mother is to have sole parental responsibility for the children X born 2005 and Y born 2007.
The children X and Y are to live with the Applicant Mother.
Until the commencement of the first school term in 2011 the children X and Y will spend time with the Respondent Father:
(a)From 8:00am on Sunday until 4:00pm the following Wednesday in alternate weeks;
(b)From 4:00pm on Sunday until 8:00am the following Thursday in each intervening week; and
(c)From 3:00pm on Christmas Day 25 December 2010 until 7:00pm on Boxing Day 26 December 2010.
From and after the commencement of the first school term in 2011 the children X and Y will spend time with the Respondent Father:
(a)during school terms:
(i)from 4:00pm on Friday until 4:00pm the following Tuesday in each alternate week; and
(ii)from 4:00pm on Sunday until 4:00pm Tuesday in each intervening week.
(b)During the Autumn, winter and spring school holiday periods, for two separate periods each of four (4) days’ duration and in default of agreement then for a period commencing on the morning of the first Saturday of the school holidays and concluding on the afternoon of the following Tuesday and for a period commencing on the morning of the second Sunday of the school holidays and concluding on the afternoon of the second Wednesday.
Notwithstanding Order 5(a) above the children X and Y will spend the Sunday of Mother’s Day with the Applicant Mother.
The parties are to do all acts and things required to enrol the child X at S.S Primary School at S to the intent that X will commence attending that school at the beginning of first term in 2011 and the parties are to ensure that the said child continues to attend that school.
Each party is to permit the children to telephone the other party and permit the other party to speak to the children on the telephone at any reasonable hour on one (1) occasion each day whilst the children are in the care of that party.
Each party is restrained from using abusive or derogatory language to the other party in the presence or hearing of either of the children or permitting any third person to do so.
Each party is to ensure that the children are to sit in the rear seat of any motor vehicle and to be restrained in a suitable properly fastened and adjusted approved child restraint at all times when they are travelling in a motor vehicle.
IT IS NOTED that publication of this judgment under the pseudonym Mellier & Mellier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2196 of 2010
| MS MELLIER |
Applicant
And
| MR MELLIER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim orders by the Mother of two children, a little girl called X and a little boy called Y. X will be five years old. Y is only three years old. He was born in 2007.
One reason why this application has been pressed with some urgency is that the child X is due to start school in First Term of next year, and the parents are at odds as to which school she should attend.
The application is listed for final hearing on 3rd and 4th March 2011, by which time X will have already started school. The workload of the Court will not allow an earlier date for a final hearing.
Orders sought
The Mother seeks interim orders:
a)To cover the period until the commencement of the first school term in 2011; and
b)To cover the period from the commencement of the first school term until the final hearing has been concluded.
The orders sought by the Mother to cover the period until the beginning of the school term can be summarised as:
a)The children live with the Father from 8:00am Sunday to 4:00pm Wednesday in alternate weeks;
b)They live with the Father from 4:00pm Wednesday until 8:00am Tuesday in each intervening week;
c)They live with the Mother from 4:00pm Wednesday until 4:00pm Sunday in alternate weeks; and
d)They live with the Mother from 8:00am Thursday until 8:00am Sunday in each intervening week.
The orders sought by the Mother from the commencement of the school term in 2011 are similar to those that she seeks on a final basis, namely:
a)That the children live with her;
b)That the children spend time with the Father during school term time:
i)From 4:00pm Friday until 4:00pm Tuesday each alternate week; and
ii)From 4:00pm Sunday until 4:00pm Tuesday each intervening week.
c)During the mid-year school holidays, for two separate blocks of four days in each holiday period;
d)During the Christmas school holidays, for three separate blocks of five days and five nights;
e)The Christmas Eve to Boxing Day period to be shared by agreement or on an alternate basis in odd and even numbered years;
Further orders sought include:
a)The parties are to enrol the children at S.S Primary School at S, New South Wales, so that X commences in first term 2011 and Y commences in 2012;
b)The children may telephone each parent when they are in the care of the other;
c)The parties are not to say anything derogatory to the children or in their presence or earshot in respect of the other party’s family;
d)The Father is to ensure that the children are not transported in any vehicle unless seated in the rear seat and are restrained in a suitable child restraint.
For his part, the Father seeks interim orders that:
a)The parties have equal shared parental responsibility for the children;
b)That the children relocate to T in the State of New South Wales;
c)That the children live with the parents on a week about basis;
d)That the children be allowed to have regard to the Father’s [omitted] cultural beliefs and traditions and more particularly the Father’s family and extended family and community values based in the Parish of S Church at F, New South Wales;
e)That the parties should keep a communication book to cover matters concerning the children’s welfare, including;
i)Dietary matters;
ii)Health issues;
iii)Details of medication for the children; and
iv)Visits to the children’s general medical practitioner or admissions to hospital.
f)Handover at the Father’s home at the beginning of the time with the Father[1] and at the Mother’s home at the conclusion of that time;
[1] presumably
g)That the children be enrolled at the S Church School at F;
h)That once the older child X reaches school age then the children are to live with the Father and spend time with the Mother:
i)Each alternate weekend from 3:30pm on Friday until 5:00pm on Sunday;
ii)For half of the mid –year school holidays;
iii)For half of the Easter school holidays; and
iv)On a fortnightly basis during the Christmas school holidays.
i)A number of prescriptive orders under the general heading of shared parental responsibility, including a restraint on either party residing more than 45 kilometres from the centre of the city of W;
j)The parties are to remain civil and courteous to each other;
k)Neither party is to criticise or belittle the other in the presence or hearing of the children;
l)The parents are to allow the children to communicate with the other parent and provide the children with their own mobile telephone[2];
m)The parents are to encourage the children to have communication with the other parent by email;[3]
n)The parents are to keep each other informed of their residential addresses, telephone numbers and email addresses; and
o)They are to explain to the children, in age-appropriate language, that they have agreed about the time they are to spend with each of them and the reasons for their decision.
[2] The children are aged 4 years and 11 months and 3 years and 6 months respectively
[3] See footnote 2
The interim orders sought by the Father appear to be identical to the final orders that he seeks.
Background
The parties were married in 2004. Their daughter X was born in 2005 and their son Y was born in 2007. They separated temporarily in 2007 for about three weeks and permanently in 2008.
The Mother was born in 1975. She is an Australian citizen domiciled in Australia. The Father was born in 1974 and has lived in Australia since 1985.
The Father is employed as a security person although he has given his occupation as accountant. He lives in T, in the W area.
The Mother is employed in law enforcement. She works for three days a week, Monday to Wednesday, and appears at the Local Court. She now lives with her mother in the neighbouring suburb of K.
The Father lives in his parents’ home in T.
In June 2009, the parties agreed that the children would live with the Father:
a)From about 8:00am on Sunday until about 4:00pm the following Wednesday is alternate weeks; and
b)From 4:00pm on Sunday until 8:00am the following Thursday in each intervening week.[4]
[4] See affidavit of Ms Mellier 1/10/2010 at paragraph [12]
The children live with the Mother the rest of the time.
Issues in Dispute
It appears to be agreed between the parties that the children are to be brought up in the Catholic faith and educated in the Catholic education system.
The parties cannot agree about which school the children should attend. Whilst the younger child, Y, is not due to start school until 2012, the older child, X, will start school at the beginning of the school year in 2011.
The Mother deposes that X has been accepted for enrolment at S.S Primary School, at S, which is a school in the Catholic education system.
The Father wishes X, and in due course, Y, to attend S Church Primary School at F. The Parish of S Church is an important part of the [omitted] community in the W area.
The Father deposes that attending S Church Primary School is in accordance with what he and the Mother had planned for the children before they separated. The Father attends church with the children and his extended family on Sundays and he considers that it is an appropriate and natural transition for the children to attend school in that parish. The children have cousins and friends who will also be attending the school. The Father does not believe that enrolling the children in a Catholic school in S would provide “the same comprehensive supporting environment of church, family and community together with their culture which is all integrated together by attending at S Church Primary School.[5]
[5] Affidavit of Mr Mellier 20/8/2010 at paragraph {25]
The Father also wants the children to be raised with a knowledge and appreciation of the [omitted] culture as well as being involved in mainstream Australian culture. The Father has deposed:
Ensuring my children experience their [omitted] culture is a natural and essential part of who they are and this has nothing to do with a rejection of being ‘Australian’. I do not see that the two need to be mutually exclusive as the mother suggests in her affidavit…It requires a conscious effort to maintain the children’s understanding of their [omitted] culture, which is also a part of who they are. This does not mean that [omitted] culture dominates, it is just easier and natural for the children to maintain their [omitted] experience through their family and community ties in which I have also been raised.[6]
[6] Affidavit of Mr Mellier 26/10/2010 at [37]
The Mother has deposed to a lengthy history of domestic violence and intimidation by the Father, some of which has taken place in front of the children. She has been consulting a counsellor at a domestic violence counselling service at S. The Father denies that he was violent or abusive towards her. He claims that she has been depressed and has been aggressive towards him.
Another issue concerns the provision of appropriate car seats for the children. The Father has borrowed the Mother’s car seats. The Mother claims that she has previously given two approved booster seats to the Father for the children to use when they are in the car with him but he has not used them. She also claims that he has allowed X to ride in the front seat of his car and they children have not been wearing approved child restraints. The Father denies this.
Relevant Considerations
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
The Court must consider the presumption in s.61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[7]).
[7] [2006] FamCA; (2006) 36 Fam LR 422; FLC 93-286
If the Court does decide that it is in the child’s best interests for the parents to have equal shared parental responsibility, the Court must look at the considerations in s.65DAA(1):
a)Whether the child spending time with each of the parents would be in the best interests of the child; and
b)Whether the child spending equal time with each of the parents is reasonably practicable.
Consideration
The primary considerations set out in s.60CC(2) of the Act are:
a)The benefit to the child (or the children, in this case) of having a meaningful relationship with both of the child’s (or children’s) parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There appears to be no issue that there is a benefit to the children in having a meaningful relationship with both their father and their mother.
However, there are concerning allegations by the Mother of family violence having taken place for a long time, which appears to have been a major contributing factor to the parties’ separation. The Father denies the allegations of violence, claiming that the Mother has at times been aggressive towards him. It is well established that on an interim hearing, where there is seldom the opportunity to test the evidence by cross-examination, the Court cannot make findings of fact on contested issues.
Nevertheless, the Mother alleges that the children have been exposed to family violence perpetrated on her by the Father. The allegations are contained in her later affidavit sworn October 2010, although she refers to “an incident in 2007” which led to the initial separation in her affidavit filed in 2010.
In her more recent affidavit, the Mother set out details of the incident she claims occurred in 2007:
(b)The Respondent came home from work. I was in the lounge room with X. Y was asleep in my bedroom. I told the Respondent of a conversation I had had with one of his cousin’s wives on my mobile telephone. The Respondent became enraged and called me a “cunt”. The Respondent said “this is what happens when you are allowed to have a mobile phone.” The mobile phone had been given to me by my father as the Respondent had broken my prior mobile phone. The Respondent then threw my mobile phone against the wall smashing it. I was upset and began to cry. X was present and began to cry and I could see that she was scared. I tried to calm the Respondent down.
(c)The Respondent then began punching me in the left side of my head and jaw with both his fists. I saw X standing in the kitchen about a half metre from me while this took place. X became hysterical and cried and screamed out. The Respondent punched me about 3 to 5 times.
(d)I heard Y crying from my bedroom and I ran into that room to pick him up and comfort him. I closed the door behind me. The Respondent then came into the bedroom carrying X. X was still crying. I was sitting on the bed cradling Y. The Respondent walked toward me and then kicked me in the stomach. He was carrying X and I was cradling Y as he did this. I ran out of our unit still carrying Y. I was unable to take X with me as the Respondent was still holding her.[8]
[8] Affidavit of Ms Mellier 1/10/2010 at [12] (b)-(e)
The Mother went on to depose:
(k)X then began having disturbed sleep patters. For a period of time if X saw a bruise or a mark on me she said to me “Did Daddy do that Mummy?”.[9]
[9] Ibid at [12](k)
The Mother deposed to an earlier incident that she said took place about a day or two before X’s first birthday party, which was scheduled to take place in 2006. She claims that the Father grabbed her by the hair with one hand and hit her about 4 times across the head with his other hand. She states that X was in the nearby lounge room at the time. She was then four months pregnant.[10]
[10] Ibid at [12](m)
The Mother deposed to another incident that she says occurred at T in early 2008:
The Respondent and I had an argument in the lounge room. X was present. The Respondent began yelling loudly at me. The Respondent walked toward me and as he did so I stood up. The Respondent came very close to me leaning over me gritting his teeth and yelling and swearing at me. The Respondent then spat in my face. When he did so a large amount of spittle landed on my face.[11]
[11] Ibid at [13](d)
The Mother also deposed to another incident that she said took place at the Father’s parents’ home at T:
The Respondent overheard our conversation and yelled out loudly from the lounge room “Just do it you fucking mole”. X was nearby playing with her cousin and within earshot. I called out to the Respondent “please don’t speak to me like that in front of the children.”
(c)The Respondent got off the lounge and walked up to me and said ‘you should leave if you don’t like the way things are”. As he said this he was standing over me with his face very close to mine. I said “please you are intimidating me. Please move away”. The Respondent did not move away so I walked to a bedroom.
(d)The Respondent followed me and grabbed me around the throat with both hands and pushed me forcefully against a wall. I called out to the Respondent’s nephew to “take X away into the lounge room” so she did not see what was happening. I began yelling out. The Respondent’s mother came into the room. I said “I will call the police”. The Respondent let go of me when I said this but then chased me outside into the garage as I tried to escape him. The Respondent’s mother tried to intervene but the Respondent did not stop. The Respondent grabbed me around the throat again and started yelling at me. He slapped me around the head with his hand. The Respondent’s mother yelled at the Respondent “stop”. The Respondent then let go of me and walked away.[12]
[12] Affidavit of Ms Mellier 1/10/2010 at [14][15][16][17](b)-(d)
The Mother deposed that the police were called on that occasion and, after they left, she could hear the children crying in the lounge room.
There are additional considerations set out in s.60CC(3).
The children are too young for their views to be considered. The older child, X, is not yet five years of age.
The evidence suggests that the children have a good relationship with each parent. The Mother deposes that they have a good relationship with both sets of grandparents. However, she states that the children have reported to her negative comments allegedly made by the Father about her mother and sister.[13]
[13] Ibid at (k) on page 21
The parents appear to have a willingness to facilitate and encourage a close and continuing relationship between the children and the other parent, but the Mother has complained that the Father has refused to let her speak to the children on the telephone when she has rung to speak to them.[14] The Father deposes that, whilst he does not mind the Mother ringing “every now and then to speak briefly with the children”, he considers that “the mother calls too many times and I find it is disruptive for the children and an interference with my time with the children”.[15]
[14] Ibid at [35]-[36]
[15] Affidavit of Mr Mellier at [25]
There does not appear to be any practical difficulty or any great expense involved in the children spending time with or communicating with each parent. The Mother lives in K, a southern suburb of Sydney and the Father lives in T, in the W area.
The parents appear to have the capacity to provide for the children’s needs.
The children are still young. X is a little girl who is approaching her fifth birthday. She was born in 2005. Y is a little boy who is three and a half years old. He was born in 2007. It is relevant that their father is of [omitted] birth and desirous of involving them in the [omitted] culture within the [omitted] community around W.
Whilst the children are not [omitted], some parallel can be drawn. It can be argued that the Court should consider:
a)The children’s right to enjoy their [omitted] culture, including the right to enjoy that culture with other people who share that culture; and
b)The likely impact any proposed parenting order will have on that right.
The Father wishes the children to be with him, so that they may have involvement with their [omitted] extended family and the wider [omitted] community. That is one reason why he wants them to attend S Church Primary School. The Mother is not averse to the children being involved in the [omitted] culture, and even speaks fluent [omitted].
The Court is required by s.60CC(3)(i) to consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. Each parent wants to educate the children in the Catholic education system, although at different schools. The Mother has criticised the Father for not ensuring that the children are not properly restrained in approved child seats whilst travelling in a car.
The issue of family violence casts a shadow over the matters to be considered. There is no family violence order in force, even though the police have attended after at least one incident, as the Mother did not want to deal with the humiliation of seeking an apprehended violence order when she herself is a policewoman. She had also deposed that she was reluctant to seek an order which would have an effect on the Father’s employment in the security industry.
Nevertheless, the Mother has made some very serious allegations which, if true, should be taken very seriously. It is particularly disturbing that the allegations involve violence towards her in the presence of the children, which is not at all in their best interests.
There is no evidence that either parent has failed to take the opportunity:
a)To participate in making decisions about major long-term issues for the children;
b)To spend time with the children; or
c)To communicate with the children.
The parties have been separated since 2008, a period of two years. The Mother lives with the children at her mother’s home in K and the Father lives with his extended family in T.
Conclusions
The children’s right to be involved in the [omitted] culture something that should be encouraged, and the Mother, on her evidence, has taken that responsibility seriously. However, the issue of family violence overshadows this consideration. Children should not be exposed to violence in the home or between their parents. In particular, violence towards women sets a bad example to children; they should not be in a position where violence of that nature is seen to be the norm for relations between men and women.
The Court must proceed cautiously. The application is listed for final hearing in 2011, a little over three months away. In the meantime, X has to start school. She has been enrolled at the S.S Primary School at S and I propose to make orders that she commence attending school there. If it transpires that, as a result of the final hearing, different orders are made, then it will not do any serious harm to her school career to go to a different school in the future. The school is near to the Mother’s place of work, so she will be available for her daughter when necessary. It is premature to make any order about Y’s school attendance, as he is not due to start school until 2012.
Clearly, there will need to be a change to the arrangements for the children in the intervening period. The Mother proposes that until school starts the children should live with their father from Sunday to Wednesday and from Sunday afternoon to Thursday morning in alternate weeks. This will coincide with the Mother’s working days from Monday to Wednesday each week. The arrangement will change once school term starts.
I have considered the question of equal shared parental responsibility. The unproven allegations of family violence will need to be investigated at the final hearing in March. I am not satisfied that it is appropriate at this stage to apply the presumption (see s.61DA(3)). The matter will be considered at the final hearing in March. In the meantime, the Mother will have sole parental responsibility until further order.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 November 2010
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