Molloy & McAdam
[2008] FMCAfam 739
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOLLOY & MCADAM | [2008] FMCAfam 739 |
| FAMILY LAW – Parenting – admissibility of recorded telephone conversations between father and mother – mother’s relocation to Brisbane – mother’s interim proposal separates children. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA & 65DAC Evidence Act 1995 ss.128 & 138 Telecommunications (Interception and Access) Act 1979 ss.5, 6, 7, 77 & 105 Listening Surveillance and Devices Act 1972 (SA) |
| Goode & Goode [2006] FamCA 1346 R and R: Children’s Wishes (2000) FLC 93-000 Byrne & Byrne (2003) FLC93-125 Morgan –v- Miles (2007) FamCA 1230 |
| Applicant: | MR MOLLOY |
| Respondent: | MS MCADAM |
| File Number: | ADC 788 of 2007 |
| Judgment of: | Kemp FM |
| Hearing date: | 11 July 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 11 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Britton |
| Solicitors for the Applicant: | BC O’Leary & Associates |
| Counsel for the Respondent: | Mr Bowler |
| Solicitors for the Respondent: | Norman Waterhouse |
THE COURT ORDERS
The respondent, Ms McAdam be granted a certificate under s.128 of the Evidence Act 1995 regarding her affidavit evidence read in these proceedings on 11 July 2008.
ORDERS PENDING FURTHER ORDERS
By consent, [B] [B]born in 1998 live with the father in Adelaide.
By consent, each party is restrained and an injunction is granted restraining them from denigrating the other party in the presence of the children or allowing any other person to do so.
[C] [C]born in 2002 live with the father in Adelaide.
The respondent mother spend time with [B] and [C] as follows:
(a)Telephone and internet communication time as agreed by the parties or failing agreement, on at least 4 occasions per week on Monday, Wednesday, Friday and Sunday between the hours of 5pm and 7.30pm.
(b)During the South Australian October school holidays in Brisbane from the second Saturday of the school holidays until the last Sunday with the father to pay the costs of air travel for the children between Adelaide and Brisbane.
(c)The first half of the South Australian Christmas school holidays in Brisbane with the costs of air travel for the children to be shared equally between the parties.
(d)Such further or other time as the parties may agree for time in Brisbane, provided that the costs of any airfare travel for the children between Adelaide and Brisbane are met by the mother.
(e)If the mother returns to live in Adelaide, such further or other time as the parties may agree or failing agreement, the mother is to have liberty to restore the matter on three days notice to seek such further or other time orders as the Court considers then appropriate.
This matter be listed for trial before Federal Magistrate Lindsay on
3 & 4 November 2008 at 10.00am (NOTING 2 days allowed).
The parties file and serve affidavits of all evidence upon which they intend to rely at trial by not later than 28 days prior to the trial date.
The applicant pay the hearing fee or file a Remission Certificate in respect thereof by not later than 7 days prior to the trial date.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
That the parties re-list the matter for further directions 7 days after the receipt of any report referred to in order 9 above.
IT IS NOTED that publication of this judgment under the pseudonym Molloy & McAdam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 788 of 2007
| MR MOLLOY |
Applicant
And
| MS MCADAM |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application filed 5 May 2008, the father seeks certain interim parenting orders in respect of the children of the relationship, [C] born in 2002 and [B] born in 1998 as follows:-
a)That [C] be delivered up to the father;
b)That [B] and [C] live with the father;
c)Such further or other orders as the Court deems just and expedient.
The Respondent mother in her Response filed 10 June 2008, seeks her own interim parenting orders:-
a)That [B] live with the father;
b)That [C] live with the mother;
c)That the children have telephone and internet communication time with each party at times as agreed or failing agreement as ordered;
d)During the South Australian July and October school holidays, that [C] spend time with the father in Adelaide from the first Saturday of the school holidays until the second Saturday with the mother to pay the cost of air travel between Brisbane and Adelaide;
e)During the South Australian July and October school holidays, that [B] spend time with the mother in Brisbane from the second Saturday of the school holidays until the last Sunday with the father to pay the cost of air travel between Adelaide and Brisbane;
f)That the father be restrained and an injunction granted restraining the father from abusing or denigrating the mother in the presence of the children or allowing any other person to do so;
g)Such further or other orders as the Court deems fit.
On 8 July 2008, this Court made the following orders by consent and pending further order
a)That the mother file and serve an affidavit in response to the affidavit filed by the father on 26 June 2008 by no later than 5pm on 10 July 2008.
b)That the parties attend child inclusive alternative dispute resolution at 2pm on 10 July 2008 with Mr Trevaskis.
c)That the mother do all things necessary to facilitate [C] spending time with the father in Adelaide from 9 July 2008 and the father to do all things necessary to arrange for [C] to fly to Adelaide at his expense.
d)That further consideration of the matter be adjourned to 11 July 2008 at 8.30am.
On the hearing, Mr Britton of Counsel appeared for the father and
Mr Bowler of Counsel appeared for the mother.
The order provided in 3(a) above, was to enable the mother to put on further evidence responsive to the material provided by the father in paragraphs 15-24 of his affidavit filed 26 June 2008. Mr Bowler, on
8 July 2008, objected to that material being read as he submitted it extended beyond that which was directed to be filed pursuant to the orders of Federal Magistrate Lindsay made on 20 June 2008. That direction was to the effect that the affidavits should address only the following:
a)any agreement reached by the parties with respect to a change in the living arrangements for [C] for the period of January to April 2008; and
b)any particulars as to any claim either party has resiled from any agreement described in a) above.
and such affidavit material was to be no more than 25 paragraphs in length with each such paragraph not to exceed 2 sentences in length.
It was clear that the father’s affidavit did extend beyond that which was directed, yet such material also appeared to be of some relevance and indeed formed a basis of the father’s written submission document. Whilst FM Lindsay was directing his attention to the circumstances of the parties alleged agreement, the schooling issue as covered in the father’s affidavit material was, nevertheless, in the Court’s view a relevant consideration with respect to determining the best interests of [C]. Accordingly, if it was to be read, the mother was to be granted time within which to prepare her responsive material.
The alleged agreement referred to above, it is submitted refers to the father allowing [C] to travel to Brisbane on the basis that she could live with the mother and for her to attend school there for one term and then for the matter to be reviewed. It seems a common point that if this agreement existed the father had resiled from it on 18 April 2008. However, Mr Bowler’s submission was that the mother had continued to act in accordance with her understanding of that agreement and that [C] had attended school for the term, but that the parties had not had the opportunity of conducting the review as was contemplated. Accordingly, the order proposed in paragraph 3(b) above, allowed for the parties to have the opportunity of reviewing the current status of [C]’s education and wishes and for the parties to see if agreement could be reached as to what was in her best interests. The Court discusses further the evidentiary basis for the alleged agreement below.
On 20 April 2007, the Family Court of Australia ordered by consent:-
a)That the children live with the mother, save as to otherwise specified.
b)That the children live with the father as follows:
i)On the first 2 out of 3 weekends from 6pm Friday until 5pm Sunday commencing Friday 2 March 2007;
ii)Each third weekend from 6pm on Friday until 12 noon Saturday commencing 16 March 2007;
iii)For one half of each school holiday period at times to be agreed between the parties;
iv)The parties to agree the time the children will spend with each parent on special occasions including Christmas and birthdays;
c)That all proceedings be removed from the pending cases list as finalised.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d)considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Justice Boland in Morgan v Miles (2007) FamCA 1230 in reviewing the relevant legislation held, on considering an appeal from an interim parenting order made on a relocation case, that the following earlier “core principles” remain valid. These principles were as stated by Her Honour:
“1.that the child’s best interests remain the paramount but not sole consideration;
2.that a parent wishing to move does not need to demonstrate “compelling” reasons;
3.that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
4.the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.”
Her Honour stated that the Act requires a careful exercise of a structured discretion (there being no applicable presumption), to determine the appropriate order.
Her Honour made it clear, that if a parenting order for equal shared parental responsibility had already been made prior to any application to relocate, the parties have a primary duty under s.65DAC to determine jointly (through a process of consultation and genuine effort to reach agreement) if the proposed living arrangements for the child would make it significantly more difficult for that child to then spend time with the parent not relocating. The operation of this section, her Honour finds, “would preclude a unilateral move by one parent without notice and consultation with the other parent”. This is particularly so, as her Honour finds:
“Section 60I requires parents, if no exclusionary factors such as abuse, family violence, or urgency apply, whether there is an order under s.61C, or s.61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner”.
Evidence
The father relied, on:-
a)His Affidavits sworn on 5 May 2008, 13 June 2008 and 26 June 2008.
The mother relied, on:-
a)Her Affidavits sworn on 10 June 2008, 18 June 2008, 26 June 2008 and 10 July 2008;
b)Affidavit of Ms P sworn on 27 June 2008.
Objection was taken to the admissibility of transcripts of recorded telephone conversations between the father and the mother, said to have occurred on 17 and 18 February 2008 and on 6 March 2008 (“the subject conversations”) the mother having recorded those conversations. There was no specific evidence before the Court as to the manner in which the recordings were effected, namely whether the subject conversations were conducted through mobile telephones and/or land lines and the manner of the recordings are unclear. The Court has had regard to the decision of Judicial Registrar Halligan (as he then was) in Byrne & Byrne (2003) FLC93-125 and the Court adopts his finding that the Commonwealth legislation now known as the Telecommunications (Interception and Access) Act 1979 covers the field in relation to the interception of a communication passing over a telecommunication system and the State law, being in this case the Listening and Surveillance Devices Act 1972 (SA) cannot operate to render lawful that which is unlawful under the Commonwealth Act or to render unlawful that which is lawful under the Commonwealth Act. One must, accordingly, look to determine whether the recording occurred in circumstances not covered by the Commonwealth Act, and only then, can the State Act be considered. In the circumstances of this matter, the Court is satisfied that the recording of the subject conversations did occur in circumstances covered by the Commonwealth Act.
Ruling as to Admissibility
The Court rules as admissible the transcripts of the recordings of the subject conversations.
Section 7(1) of the Telecommunications (Interception and Access) Act 1979 states:
“A person shall not:
(a)intercept;
(b)authorise, suffer or permit another person to intercept; or
(c)do any act or thing that will enable him or her or another person to intercept;
a communication passing over a telecommunications system.”
A “communication” is defined in section 5 as including
“conversation and a message, and any part of a conversation or a message, whether:
(a)in the form of:
(i)Speech, music or other sounds;
(ii)Data;
(iii)Text;
(iv)Visual images, whether or not animated; or
(v)Signals; or
(b)In any other form or in any combination of forms.
A “telecommunications system” is defined in section 5 as:
(a)A telecommunications network that is within Australia; or
(b)A telecommunications network that is partly within Australia, but only to the extent that the network is within Australia;
and includes equipment, a line or other facility that is connected to such a network and is within Australia.
A “telecommunications network” is defined in section 5 as:
“a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system or series of systems, for carrying communications solely by means of radio communication”
Section 6(1) of the Telecommunications (Interception and Access) Act1979 states:
“For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication (emphasis added).
Section 105 of the Telecommunications (Interception and Access) Act 1979 states:
(1)A person who contravenes subsection 7(1) or section 63 is guilty of an offence against that subsection or section.
(2)An offence against subsection 7(1) or section 63 is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years.
Section 77 of the Telecommunications (Interception and Access) Act 1979 states:
(1)Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of 7(1), then
(a)Subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 75A, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and
For the purposes of the current proceedings, the sections referred to in (a) above are not relevant.
The mother’s evidence relevant to her recording the subject conversations with the father is as set out at paragraph 49 of her affidavit sworn 10 June 2008 and was made the subject of a certificate under s.128 of the Evidence Act 1995(Cth), the Court being satisfied that the mother faced some exposure by virtue of this evidence and was otherwise entitled to the privilege in respect of self-incrimination provided for pursuant to that section.
Judicial Registrar Halligan’s consideration of section 6 of the then Telecommunications (Interception) Act 1979 examined the impact of subsection 2 of that section which provided circumstances where a person lawfully on premises to which a telecommunications service is provided by a carrier and who, by means of an apparatus or equipment that is part of that service, listens to or records a communication passing over that system, will not, for the purposes of the said Act, be the subject of an interception of the said communication. Judicial Registrar Halligan examined in his decision a number of authorities where section 6(2) of the said Act was considered. Indeed, his own decision relies on that subsection to find that the recording of a telephone conversation by the use of a mobile phone which was an apparatus or equipment connected to a telecommunications network and was thus part of the telecommunications system was within the exclusion provided for. However, an examination of the current form of the legislation reveals that the subsection(2) exclusion no longer appears to apply.
The Court has had further regard to paragraph 49 of the mother’s affidavit sworn 10 June 2008 and at this interlocutory stage, and on the basis that the father in his affidavit in reply did not dispute the mother’s assertion that the mother had informed the father of her proposed recording, the Court is satisfied that there has not been a relevant interception of a communication as defined.
Whilst section 77 of Telecommunications (Interception and Access) Act 1979 makes intercepted material inadmissible except as provided in that section, the material to be intercepted must come within the definition of section 6 and if effected, with the knowledge of the person making the communication, would appear to stand outside that definition and accordingly, would not be inadmissible.
Further, the Court is, in any event, satisfied pursuant to s.138 of the Evidence Act 1995 that the transcripts of the recording of the subject conversations should be admitted as the Court finds that such evidence would otherwise be relevant as rationally affecting the assessment of the probability of the existence of facts in issue and the desirability of their admission outweighs their exclusion.
Interim hearing
The Court, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief. The children return to school in South Australian on 21 July 2008 and if [C] was to continue schooling in Brisbane, she would return on 15 July 2008.
The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
The Court does not have the benefit, at this time, of any expert family assessment.
Proposals
The parties seek the various competing orders set out above.
Issues
The essential issues in dispute the subject of determination are:-
a)Who the child [C] is to live with pending final hearing;
b)Time to be spent with the children and the practicality of spending such time.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born in 1974 and is currently 34 years old.
b)The mother was born in 1977 and is currently 31 years old.
c)The parties commenced cohabitation in August 1996, and separated in September 2006.
d)The father’s occupation is [Y].
e)The mother is currently working but her occupation is unknown.Her affidavit refers to being a [Y], but that appears to be an error.
f)The father lives in [X], South Australia, with his partner Ms N and [B].
g)The mother had enrolled the children at [L] Primary School, notwithstanding that they had been attending at [R] Primary School since reception.
h)The mother lives in Brisbane, Queensland, with her partner Mr S and [C].
i)
Notwithstanding the consent orders made in the Family Court of Australia by Judicial Registrar Forbes on 20 April 2007 referred to in paragraph 7 above, the mother having commenced a relationship with Mr S in July 2007, as and from 18 August 2007, the children commenced living with the father in Adelaide.
The mother spending time with the children each alternate weekend from the conclusion of the school day on Friday to 5pm on Sunday. The mother and father had agreed that the children spend half of each school holidays and on other specific occasions with the other party.
j)
The living arrangements referred to in i) above were the subject of a parenting plan entered into between the parties and dated
18 August 2007.
k)As and from 11 October 2007, the father took and retained possession of all of the children’s belongings including toys, clothes and beds.
l)The parties sought to make changes to the parenting plan and had agreed that the children would visit the mother on “variable visits to Adelaide or Brisbane and the children have variable visits with the mother on school holidays in Brisbane.
m)Some time around 18 October 2007, the mother moved to live with Mr S in Brisbane, Queensland.
n)Between 23-25 November 2007, the children spent time with the mother in Adelaide.
o)Between 4-16 January 2008, the children spent time with the mother in Brisbane.
p)Between 12-19 April 2008, the children spent time with the mother in Brisbane with the child [B] returning to live with the father in Adelaide and with the child [C] continuing to live with the mother in Brisbane. At the time of their travel, both children had return tickets to Adelaide.
q)On 5 May 2008, the father commenced these proceedings.
There appear to be a number of disputed facts, as follows:
a)That whether the child [C] living with the mother in Brisbane as and from 19 April 2008, was pursuant to an agreement reached between the parties, and, if so, the terms of that agreement.
b)Who [C] has expressed a wish to live with.
c)Whether the father’s conduct was threatening and whether the mother showed hostility towards the father.
d)Whether the mother refused the father time with the children.
e)Whether the father had acted to undermine the mother’s authority.
f)What child support had been paid for the children.
g)Whether the mother has suffered or continues to suffer from mental health problems.
h)The extent of the mother’s family or her partner’s family, resident in Queensland.
i)The strength of the relationship between [D], the mother’s daughter of an earlier relationship, and the children.
j)The strength of the relationship between the children and the maternal grandmother.
k)The relationship between the two children.
Mr Bowler’s written submission document provided the following extracts from the transcripts of the recordings of the subject conversations to support his submission that the father had agreed that [C] live with the mother. They are reproduced below as:-
For 17th February 2008 .
Point 3
Father – [C] will be staying there.
Mother – What
Father – [C] will be staying there.
Mother – She will be staying here?
Father – Yep.
Mother – Why do you say that?
Point 5
Mother – So what you’re saying is let her stay here and she will realise that she doesn’t really want to stay here and then she can go back.
Father – That’s it.
Mother – Is that what you mean?
Father –Yep … but
Point 7
Father – Just asked here then, I said in the school holidays you go up to mum’s … I said do you want to stay at mum’s and she goes yes.
Father – So in the school holidays you fly them both up there, she stays there and if is going to cost me fucken $200.00 to fly [B] well then so be it.
Point 9
Father – OK will you book two return flights not three.
Mother – Alright.
Father – One for [B] and one for [D].
Page 2, Point 1
Father – I am not mate fuck like I said to ya couple of weeks ago fuck mate I have a new missus I have a fucken new baby I am not putting up with this shit no more.
Mother – mm.
Father – She is going to fucken learn the hard way.
Mother – Well is that is what is takes for her to realise what she, you know, what it’s going to be like then.
Father – So be it.
Mother – If you are willing to do that then that’s that.
Point 3
Father – Like I told you before do not ask me for fucken child support money if fucken child support ring you fill out all the paperwork, you tell them like I’m doing now with you that I am paying you fucken directly to yourself.
Point 5
Father – And the counsellor seems to think fucken after two or three weeks she will want to fucken come home.
Point 6
Father – But I mean it fuck mate I tell you know putting it bluntly with the fucken money that I earn mate, if you fucken start hitting me up for fucken child support and look out.
Point 9
Mother – Well we need to do something about this like a parenting plan then ‘cause we haven’t even got around to changing it from the last one either.
Page 3, Point 1
Father – If you … mate I’ll let her go up there at the end of the school term mate if she can fucken start a new school and everything at your house there but if you feel
Point 3
Father – you know and fuck mate they’ve both been little friggin bastards and fucken bitches.
Father – And like I said to her the other day I said if you attitude keeps going little girl I said you will be going to live with mum.
Point 4
Father – She goes is [B] coming? I said no [B] will be staying here with dad and she goes well I want to stay here. I said no you don’t and she didn’t answer me, like she didn’t repeat it.
Point 5
Father – And like i said to [B] I said come school holidays I said when you go up to mum’s you won’t by coming back home. He does ‘no I will be coming back home’.
Father – and [C] said ‘no I want to stay there’.
Point 8
Mother – I need you to know I need to know that you are sure that you want to try this.
Father – [C] mate. Well we have to. [C] has got to get her mind fucken sorted out that’s it.
Mother – But yeah, I mean I really don’t want this to friggin turn around in a couple of weeks and you turn around and say ‘nah there not friggin going up there at all’.
Father – mate, there’s nothing else I can fucken do.
Page 3, Point 1
Father – Fuck as hard as it is to fucken let them go mate, if that’s what [C] wants well then fucken so be it.
Point 3
Father – Yeh we will give it a fucken term.
Mother – Alright a school term?
Father – Yep.
Mother – Can we put this down in writing for both of us to have peace of mind?
Father – Na fuck, give it friggin mate, fuck you can’t its going to take at least a term.
Point 5
Father – We don’t need a fucken parenting plan we are talking fucken civil between me and you.
Mother – I know this but I just don’t want it to turn out that you know you could very well turn around and say I didn’t send her back.
Father – I can’t say that because fuck mate, after the last fucken Court agreement, fuck as far as the Court’s concerned you got the fucken kids.
Page 4, Point 3
Father – Listen mate, fuck you know the last couple of times fuck things have been spoken on the phone and everything like that mate, fuck she wants to live with mum.
Point 3
Mother – Alright mm … you know I really would feel better if we had something in writing, though even if it’s not a parenting plan.
Father – Right fuck.
Page 5, Point 5
Father – That virtually gives you a term with [C] up there.
Mother – Mm.
Father – yes, its going to fuck with her mind and everything like that but after that term, you, [Mr S] and her will know.
Mother – Well she will know how she feels when she’s here and how she feels being away from you, [Ms N] and [B] ... and the baby.
Father – You can’t say that because its only a week up there, you are going to giver her a term.
Mother – No that’s what I mean, if she was up here for a term then that’s time enough for her to work out.
Father – That’s it.
Mother – But yeh, I need to be totally sure that this is what you want to try and work out.
Father – Mate fuck I have to [Ms McAdam].
Point 7
Father – Mate as fuck like I said to [Ms N] that mate as hard as it is mate, if that’s what fucken she wants well then fucken so be it.
Point 9
Father – Yeh mate fuck if she wants to up there well then so be it I will give her a term up there, fuck mate and then she’ll know.
For 18th February 2008
Point 4
Mother – OK, well she will be starting school … that’s for sure … what about, what about [B] … what’s he have to say.
Father – He’ll go up there for his week’s holiday and then he will come back home.
Mother – yeh but I mean what does he have to say about her starting school and stuff.
Father – Nothing
For 6th March 2008
Point 5
Father – When you book the flights.
Mother – Yeh.
Father – See if you can leave one open.
Mother – What do you mean?
Father – You leave one return flight open so she can come home when she wants.
Page 2, Point 1
Father – If you can book an open ticket … I might lose you in a minute I’m going into a lift … if you can book an open ticket.
Mother – Yeh.
Father – See what she’s like when she gets up there.
Mother – Yeh well I mean that’s what I thought, but you know if we just stay with our original idea maybe like not for the fucken term if you know if it ends up to the school term then so be it but if she really wants to go back home you know in two weeks then we will send her back home. I’m not going to keep her here if she doesn’t want to.
Father – Well you can only see how she’s gunno go.
The Court accepts Mr Bowler’s submission that an examination of the above extracts clearly shows the father as emotional and under some stress and it would appear, not coping with the position existent at the time. The Court accepts Mr Britton’s submission that notwithstanding the language involved, no particular emphasis should be put on that in itself. However, on further analysis, they are not determinative of the question as to whether the parties reached agreement. Nevertheless, paragraphs 54 and 57 of the mother’s affidavit sworn 10 June 2008 state:
54. “On 18 February 2008,the father telephoned me and told me the children would come up and stay with me in the first week of the holidays because of the different school term dates in order that [C] could start school in Brisbane at the end of the week. The father and I arranged that the children would travel to Brisbane on Saturday 12 April 2008 and that [B] would return to Adelaide with [D] on 19 April 2008.
57. On 6 March I telephoned the father and told him I would book the tickets on that day and that I wanted to confirm the previous arrangements that both of the children travel to Brisbane on 12 April 2008 and only [B] would return on 19 April 2008.”
The father admits the factual allegations contained in the above two paragraphs in his affidavit of 13 June 2008 (see his paragraphs 95 and 98). However, he says that he had changed his mind because [C] had asked why she was not coming home and the father had responded to her because “you wanted to live with mum”. The father stated that [C] started to cry and told him that she wished to live with him.
Taken at its highest, the evidence of the mother is that the father had agreed to the child staying in Brisbane with her for a term at a school in Brisbane with the issues of the child’s residence to be reconsidered or reviewed following that. The father’s position was that no such agreement had ever been reached as to [C]’s residency or schooling and the evidence as to the subject conversations showed no more than that the parties were still in discussion. This appeared at odds with his own concessions and indeed his evidence that both the Counsellor (Ms C) and the [R] Primary School Deputy-Principal had recommended allowing [C] to live with the mother on the basis that the father thought that she would be able to say that she wished to return if it was not working out or if she simply wished to return. This also appeared to be behind his view that an open return ticket be available should [C] wish to return. This view appears to be putting enormous decision making responsibility on the shoulders of a 6 year old. In any event, the father submits that as at 18 April 2008 he had communicated his position for [C] to return to Adelaide, the mother’s position being that this was not communicated to her at the time that [C] travelled to Brisbane. The father was critical of the mother not conferring with the child’s school at [R] Primary School concerning her schooling at the [S] State School in Brisbane. The father submitted that the late selection of the school in Brisbane was indicative of the mother’s change in position and her decision to keep the child with her. The mother denies any late selection of a school and deposes to her understanding that the two schools were to liaise about any exchange of information concerning [C].
The Court’s position is that to a large extent, the determination as to whether there was an agreement will ultimately have to await the final hearing, but that may be, in any event, as circumstances have occurred, a moot point of marginal relevance in the determination of the best interests of the children.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
The Court notes that this interim decision may be disregarded, if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.
As the Full Court in Goode & Goode [2006] FamCA 1346 states, unless displaced by Court order, the parties parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child/ren (s.65DAC of the Act).
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
The Court finds that the presumption will not apply in this case, as whilst the Court’s discretion is not to be exercised in a broad exclusionary manner, on an interim hearing, the controversial evidence before it makes the application of the presumption or it’s rebuttal difficult and supports reliance on s.61DA(3) of the Act to negate the application of the presumption .
Therefore, to determine what parenting orders should be made, the Court must look to the best interests of the child and whether the actual spending of time is reasonably practicable.
The Court in determining a parenting case involving a proposal to relocate a child’s residence, must carefully evaluate each of the proposals advanced by the parties, without dissection of the case into discrete issues. For example, who the child should live with and spend time with and then based on that, whether the relocation should be permitted. The evaluation process requires a weighing up of the evidence and submissions, as to how each proposal is advantageous or disadvantageous when considering the best interests of the child.
The Court must follow the legislative directions in s.60CA and s.60CC of the Act and apply this exercise to each of the factors set out therein. The Court will in it’s consideration, apply necessarily greater significance to some factors over others and it is in this process that the Court must indicate how such matters are balanced out, and the weighting the Court has given to determine that process.
Primary considerations
In order to determine a child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this regard:
a)The primary consideration referred to in s.60CC(2)(a) is supportive of the position that as much time as possible with both parents is in the children’s best interests. The Court accepts that the children have a meaningful relationship with both parents.
b)The primary consideration referred to in s.60CC(2)(b) is inapplicable on the facts of this case. Whilst there are allegations as to the father’s threatening conduct and the mother’s hostility towards the father, those matters do not appear to impact on a need to protect either one of the children. The mother’s interim proposal sees [B] continue to live with the father. Further, as the mother is now living in Brisbane, the potential for confrontation between the parents has to a large extent been removed by the geographical separation.
c)Mr Bowler submitted that the extracts of the subject conversations showed that the father was under stress and not coping and that there had been no other evidence to satisfy the Court that this position would change if [C] was returned to live with him. As Mr Bowler submitted, the subject conversations show the father under emotional stress and in circumstances where he, at one point, discussed with the mother both [B] and [C] moving to live with her in Brisbane. Notwithstanding that, as Mr Bowler submitted, [B] made his wishes clear and as a result, [B] continues to reside with the father. The Court places some weight on this as it would appear to discount any ongoing risk associated with [C] returning to live with the father if the mother was otherwise content to leave [B] with him pending the further hearing.
Additional considerations
The Court must have regard to the ‘additional considerations’ under s.60CC(3) of the Act, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The mother’s evidence was that [B] had told her that he wished to live with the father in Adelaide as he did not wish to leave his friends.
The mother’s evidence was further that [C] wished to live with the mother in Brisbane.
The mother’s evidence was also to the effect that whilst [C] had expressed a wish to reside in Brisbane with the mother, she had also expressed a wish to continue to be with [B].
The Court is concerned that both children have been put in a position to express their wishes as to where they would wish to live and considering their ages, the Court is of the view that minimum weight should be given to such expressions at this time. Certainly in the case of [C] who is only 6 years of age, neither parent should expect that the expression of [C]’s wishes should be determinative given her level of maturity and understanding. See the Full Court’s decision in R and R: Children’s Wishes (2000) FLC 93-000.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The mother’s evidence was that [C] misses her brother and her father.
The father’s evidence was to similar effect.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother’s evidence was that after she had travelled to Brisbane in October 2007 she had telephoned the children each night in Adelaide and was able to speak to them both. Her evidence was that both children “chatted to her” about what had happened in their lives and the mother was able to speak to the father about the children.
The Court finds both parents are willing and able to facilitate and encourage a close and continuing relationship between the children and each other. The Court makes no finding with respect to how the circumstances of [C]’s remaining in Brisbane pursuant to the terms of any agreement impacts on the question of parental responsibility as that is a matter which will have to await determination at final hearing.
Mr Bowler seeks to make a point that the father was under emotional stress and anxiety and was not coping with the care of the two children as evidenced by the transcripts of the recorded subject conversations. However, this would also tend to challenge the view that if he had reached any agreement, he had properly considered at the time all of the issues that he should have responsibly taken into account in the best interests of the children.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court finds that the separation of [B] from [C] has the potential for causing the children some degree of upset. Any findings as to actual upset must await expert assessment and the final hearing.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The mother’s evidence is that she is able to afford to pay for three (3) trips per annum by air for the children to travel from Adelaide to Brisbane.
The Court finds that pending the hearing, the parties would be able to afford for the children to travel to enable time to be spent with each parent and in particular during school holiday time.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Court accepts that both parents have the relevant capacity to provide for the children.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
There are no other matters relevant to the Court’s determination with respect to the children under this factor.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother acknowledged that she had misled the father to the effect that she had been “stuck” in Brisbane as a result of bad weather when that was not in fact the case. The mother conceded that she had misled the father so that he would keep the children for another day.
Further, the mother’s evidence was to the effect that she had advised the father on a number of occasions that she would return [C]’s clothing and other personal items but on her own evidence, she had not attended to that.
The father conceded that he had taken [B] to a Hospital casualty unit following a fall at school, without informing the mother. The father also conceded that he had taken [C] for counselling without informing the mother. The mother disputed the father’s evidence that a copy of the counsellor’s report had been provided to her.
The Court finds that the parties have dealt with each other to a large extent on the basis of positioning themselves for the desired outcome in the current Court proceedings. The parties have unnecessarily engaged their very young children in that process and have put, given the ages of the children, them under some pressure with a potential for some degree of upset. The Court cannot make any further finding without the benefit of some expert evidence in this regard.
(j) any family violence involving the child or a member of the child's family;
This factor does not apply to these children.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This factor does not apply to these children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court finds that, as this is an interim hearing, this factor must be assessed in this light.
(m) any other fact or circumstance that the court thinks is relevant
Essentially, as the mother’s proposal is for [B] to remain in Adelaide, the Court is concerned that without the benefit of expert evidence children of this age should not be separated. The mother’s own evidence is that [C] misses [B] although she says that the strength of her relationship with [C] still means that [C] wishes to live with her in Brisbane. As said, this puts [C] given her very young years, in a difficult position. There is no evidence as to the level of her maturity for the Court to give any weight to the expression of such a wish. Indeed, it would be highly unusual for a 6 year old to express a view that he/she would wish to live with a person other than the person who currently looks after them and upon whom they rely.
Matters in s 60CC(4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The Court repeats the matters at paragraphs 62-65 above and says that there are current allegations between the parties as to whether child support has been paid or not and such matters will need to await determination at final hearing.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):
(a) how far apart the parents live from each other; and
The mother’s evidence was that she did not see the children between when she left Adelaide in October 2007 and up until 23 November 2007 when she travelled to Adelaide. Her evidence was that until then she was unable to afford the airfare. Her evidence now is that she is able to make payment for the children’s airfares on up to 3 occasions per annum.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The Court finds that the parties geographic separation would dictate against the children spending such time with each of the parents.
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
The Court makes no findings relevant to this matter at this time.
(d) the impact that an arrangement of that kind would have on the child; and
The Court makes no findings relevant to this matter at this time.
(e) such other matters as the Court considers relevant
[C] has only attended one term at her Brisbane school, although as the mother says, she has made friends quickly and to the mother’s observation “settled in very well”. She had previously been attending [R] Primary School prior to her move to Brisbane and should return there to enable her to reconnect with friends in that school environment pending the further hearing, both parties concede that [C] would have been doing well at [R] Primary School and the mother quite properly acknowledged that if [C] is to be returned to South Australia that she should attend [R] Primary School as an appropriate school in those circumstances.
Conclusion
The Court is of the view that, pending further order, [C] should live with [B] in Adelaide. The mother’s interim proposal consents to [B] living with the father in Adelaide. The Court would need the benefit of an expert report for the purposes of a final hearing to determine where the children should ultimately live, whether it be with the father in Adelaide or with the mother in Brisbane. The mother’s proposal on a final hearing is for both children to live with her in Brisbane.
The mother has quite properly acknowledged that she does not wish to keep the children apart.
If the mother remains in Brisbane, it would be appropriate and in the best interests of the children that they continue to have telephone and internet connection time with her and holiday time in October and December.
The Court is of the view that whilst the parties’ interim proposals did not contemplate holiday time beyond October, given the likely hearing time including delivery of any decision, the December holiday period will need to be considered and the Court is of the view that equal time during that period should be spent with each parent and to the extent that the children travel to Brisbane to spend time with the mother, the costs should be borne equally.
The Court adopts the mother’s proposal for the October school holiday period with the costs of airfare travel for the children to be paid by the father.
Both [B] and [C] when spending holiday time with each parent should spend such time together.
It is important pending the final hearing that the relationship between [B] and [C] be protected and reserved.
Both parties consent to a mutual non-denigration provision and the Court will so order.
Whilst the Court might order [C] to return to live in Adelaide, that does not involve an order of itself, requiring the mother to return. That is a matter for her. The mother’s position it would appear is that she would remain in Brisbane, pending the outcome of the final hearing.
The Court is of the view that if the mother was otherwise to return to Adelaide, the parties should spend equal time with the children. If the mother decides to return to Adelaide, then she will be afforded leave to restore the matter to seek such further or other time, in those circumstances.
Finally, in circumstances where the best interests of the children would appear to otherwise determine [C]’s return to Adelaide, the Court should not allow the mother to unilaterally (on the father’s version of events) relocate one child to Brisbane pending the final hearing. To do otherwise would be to adversely affect the father’s application at final hearing (so that the mother’s decision to relocate would in such circumstances become a fait accompli, in the sense that Brisbane would become the new status quo, at least for [C] against which both children’s best interests would otherwise be determined), by dictating now the ultimate outcome and, accordingly, usurping this Court’s ability to assess matters on a level playing field.
Having considered the matters referred to in paragraphs 46 to 87 above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the above orders are otherwise in the best interests of the children and accordingly, the Court will so order.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of FM Kemp FM
Associate: Joanne Balson
Date: 11 July 2008