Morgan and Morgan
[2007] FMCAfam 902
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
MORGAN & MORGAN [2007] FMCAfam 902
FAMILY LAW – Children – interim arrangements for care pending final hearing – presumption of equal shared parental responsibility – best interests – reasonable practicality.
Family Law Act 1975, ss.60CC; 61DA; 65DAA
Goode & Goode (2006) FLC93-286
Applicant: MS MORGAN
Respondent: MR MORGAN
File number: ADC 2980 of 2007
Judgment of: Brown FM
Hearing date: 1 August 2007
Date of last submission: 1 August 2007
Delivered at: Adelaide
Delivered on: 1 August 2007 REPRESENTATION
Counsel for the Applicant: Ms A. Horvat
Solicitors for the Applicant: Barr Lawyers
Counsel for the Respondent: Mr D.M. Berman
Solicitors for the Respondent: C M Tucker & Associates ORDERS
(1)This matter be listed for final hearing before Federal Magistrate Brown on 17, 18 and 19 December 2007 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
(2)The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
(3)Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 26 November 2007.
(4)That 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 N born in August 2001 and G born in September 2002 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 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.
(5)Pursuant to section 61DA the parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said children.
UNTIL FURTHER ORDER
(6)The children N and G live with the father.
(7)The said children spend time with the mother on alternate weekends commencing 3 August 2007 from after school on Friday until commencement of school Monday and half of each school period or at any other times as agreed.
(8)The mother is to telephone the children each Monday, Wednesday and Saturday if the children are not otherwise in her care at 6:00pm with the mother to call the father’s landline number.
(9)The mother and the father be restrained and an injunction be granted restraining each of them from discussing these proceedings with the said children or encouraging others to do so.
(10)All handovers at the commencement and conclusion of the mother’s time with the said children occur at the BP Service Station, Bxxx in the State of South Australia, or as otherwise agreed between the parties.
(11)The mother and the father have the right to attend at the said children’s school or kindergarten for events that parents are normally invited to participate in such as, but not limited to:
(a)reading, music and art assistance;
(b)sports days;
(c)school concerts;
(d)school plays;
(e)sporting events; and
(f)any like event
and should the children’s attendance be required for such event then the parent having the care of the said children at that time shall facilitate the children's attendance at such event.
(12)Each parent shall have the right to obtain copies of the said children's school academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information, and all other such information pertaining to the said children's schooling and school related sports activities.
(13)The father and mother shall do all reasonable things to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of the said children while the said children are with that respective parent and the father and the mother shall specifically keep the mother informed of the name and address of each school that the children attend from time to time.
(14)The father and mother shall provide to the other party from time to time the following information within four (4) days of that party's written request to the other party having such information:
(a)the name of the General Practitioner attending to the said children’s health requirements and the name(s) of any medical specialists, psychologists, psychiatrists and social workers so attending to the said children; and
(b)the names of any hospitals, clinics and health institutions that the said children attend and the dates of such attendances.
IT IS NOTED that publication of this judgment under the pseudonym Morgan & Morgan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDEADC 2980 of 2007
MS MORGAN Applicant
And
MR MORGAN Respondent
REASONS FOR JUDGMENT
1.These reasons for judgment were delivered orally, after the matter came before me in the duty list. The reasons have been corrected from the transcript. Grammatical errors and errors in expression have been corrected.
2.The matter of Morgan comes before me today. The applicant in the proceedings is Ms Morgan and the respondent is Mr Morgan.
3.The parties are the parents of two children: N who was born in August 2001 and G who was born in September 2002. For ease of pronouncing these reasons for judgment, I will refer to Mr Morgan as the father and to Ms Morgan as the mother, although the parties were and have been married to one another.
4.The matter is a complicated one which comes before me in a busy duty list today. As a result, I am delivering some extempore reasons for judgment in the matter. The orders that I am going to make today are interim orders. What that means is that the orders will stay in place until there can be a full investigation of all the various matters which each of the parties have raised in their respective affidavits.
5.As the parties will be aware, I have not had the opportunity of seeing either of them in the witness box, and so observing them, particularly seeing them answer questions that may be put to them and seeing how they answer perhaps about difficult issues arising from their respective behaviour in the past.
6.Accordingly, what that means is that where there are disputes between the parties, today, I cannot definitively resolve them – I cannot make a finding that X happened or Y happened. That must await the final hearing, which will be later this year, in fact in December; on 17, 18 and 19 December this year. At this stage there will be time for an exhaustive hearing. It is also likely there will be an independent experts report to hand, which will deal with the children’s relationships with each of their parents and any views they may have about the appropriate outcome. Still, I have to make some orders to deal with arrangements for the care of these two children until that final hearing can occur.
7.By way of background, the mother in these proceedings was born in Michigan in the United States. The father was born in South Australia. The father obtained I think some employment through his work, in Michigan, and the parties met in Michigan in 1999. I think one of the parties described it as a whirlwind romance. At any rate, the parties began to live together shortly after they met, and they married in Michigan, in the United States, on 9 September 2000.
8.Obviously the two children were born shortly after the parties began their marriage, or rather in the early years of their marriage I should say. It seems that both children were born in the United States. However, in November of 2005, it seems that the father's contract of employment in the United States ended, and the parties and the two children concerned returned to Australia and the father resumed his employment in Australia.
9.It is the mother's position that she was unhappy in this country. In any event, it is common ground that in August of 2006 the parties separated in South Australia and in September of 2006 the mother and the two children returned to Michigan. The circumstances surrounding that departure have not been fully canvassed before me today and it seems that the parties have a different view about how that came about. I will return to that in a moment but it is difficult for me, at this stage, to form a concluded view about that issue.
10.In any event, it is the mother's position that she had some sort of consent from the father, a matter which he vociferously denies. The mother obtained, it seems, some ex parte orders from the court in the United States regarding arrangements for the care of the two children. The father, as was his entitlement, sought a remedy; particularly, that the two children should be returned to this country pursuant to the provisions of the Hague Convention, which is an international convention to which Australia is a signatory as are the various states of the United States, which deals with the removal of children over international boundaries.
11.Ultimately, the father's application came on before a United States district judge in one of the federal districts of the United States Supreme Court, I think. I may be wrong about that. One of the superior courts in the United States, in any event. The Honourable Patrick Duggan, who is a United States district judge, on 21 March 2007, determined that the habitual residence of the two children concerned was Australia and that the mother had wrongfully removed the two children concerned from their place of habitual residence. For that reason the father's petition to return the two children to Australia was granted and some days afterwards Mr Morgan and the two children returned to live in this country.
12.Since the parties separated, the father has repartnered. His partner, a person by the name of Ms C, has a home on some acreage at a place called Txxx. After the father and the two children returned to Australia, the children and Mr Morgan have been living at the property in Txxx.
13.The mother herself has returned to live in Adelaide. She deposes as to having recently obtained accommodation for herself in Rxxx, which is one of the inner suburbs of Adelaide. It is her position that since she returned to Adelaide in April of this year, she has experienced extreme difficulties in spending time with the two children. It is her position that, prior to the parties' separation, she was what is commonly called the primary carer of the two children concerned and it is likely to be in the two children's best interests that an arrangement whereby they live predominantly with her is reinstated at this stage.
14.By way of both interim and final orders she seeks orders that the two children concerned live with her and spend time with their father on alternate weekends. She also has proposals that the children spend time with their father on each Thursday and for one half of each school holiday.
15.The parties, to their credit, have agreed on a number of orders which would involve each of them in the children's schooling and other activities and require them to keep the other informed as to health and other issues which may arise from time to time.
16.The father also seeks some orders, to which the mother agrees, which would prevent the mother again from removing the children from Australia and ensuring that their names are entered on the Federal Police watch list maintained at points of departure within Australia.
17.On the other hand, it is the father's position that it would not be in the children's best interests for there to be a change in their care arrangements at this stage. The father is critical of the mother and particularly what he characterises as her lack of insight into the magnitude of her behaviour, in September of last year, when the children were taken to the United States.
18.As is clear from what I have said today, it seems that both parties are critical of the other for not being willing to facilitate a close and loving relationship between the two children concerned and each of their respective parents. Having said that I accept that, no doubt from both parties' points of view, the proceedings in Michigan before the Honourable Judge Duggan were traumatic for them both. I say that because it is apparent to me that the relationship between the parties, I think for fairly obviously reasons, is one that is categorised by mutual mistrust and, although I hesitate to say it, mutual antipathy.
19.In any event it is the father's position that he was a closely involved father in the period prior to the parties' separation. The mother does not accept that. It is the mother's case that, in strictly arithmetical terms, since the parties separated around about this time last year, N and G have been with her for seven months and with the father for four months.
20.The legal provisions which I must apply to this case are contained in Part VII of the Family Law Act, which is the part of the act which deals with arrangements for children. The law in this country was recently significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Its provisions came into force on 1 July 2006.
21.The legal consequences of the amending legislation have been discussed and guidance provided for a court such as this one in applying the law at the interim stage in a recent case of the Full Court of the Family Court, which is called Goode & Goode.
22.The Full Court said in that case that the amendment was intended to favour the substantial involvement of both a child's parents in their child's life in respect of both parental responsibility and the time the child spent with each of his or her parents, subject to the need to protect the child concerned from harm, abuse and family violence and also provided that such an arrangement was in the child's best interests and was reasonably practicable.
23.There is no distinction in how the law is to be applied at the interim as opposed to the final stage. Because of the amendments, the starting point for any court, before it makes a parenting order in respect of any child, is a presumption which is set out in section 61DA of the Family Law Act. Pursuant to that section, it is to be presumed that it is in the best interests of the child concerned for his or her parents to have equal shared parental responsibility for the child.
24.The presumption is qualified on a number of bases. Firstly, if there are reasonable grounds to believe that child abuse or family violence has occurred the presumption does not apply. In this case, although the parties are highly critical of one another and their past behaviour - and the father, I should say, has some criticisms of the mother's behaviour, particularly her level of drinking, which the mother rigorously refutes - it does not seem to be a case where there are reasonable grounds to establish family violence or neglect.
25.As I indicated to Mr Berman, pursuant to subsection (3) the court has a discretion not to apply the presumption, if it is not appropriate for it to be applied at the interim stage. However, the Full Court in Goode said that the discretion is not to be exercised in a broad exclusionary manner but only in circumstances where limited evidence may make the application of the presumption or its rebuttal difficult.
26.Finally, pursuant to section 61DA(4) the presumption is rebutted if evidence exists which satisfies the court that it would not be in the best interests of the child concerned for such an order to be made. Again, in the context of an interim hearing, it is likely to be often problematic for such clear, uncontroverted evidence to be found.
27.As I say, the starting point is that the parties should have equal shared parental responsibility for their children. As perhaps is axiomatic or self‑evident, before I make any order regarding N and G I have to be satisfied that it is likely to be in the best interests of the two children concerned.
28.My discretion in regards to that aspect of the children’s best interests is not uncontained. I have to consider a long list of matters which are set out in section 60CC of the Family Law Act. There are two types of considerations: firstly, what are described as primary considerations and secondly, what are described as additional considerations.
29.It seems clear that the primary considerations are more important. Thy are twofold. Firstly, I have to consider the benefit of the two children concerned having a meaningful relationship with both their parents. Secondly, I have to consider orders which will protect the children from harm, as a result of being exposed to family abuse, neglect or violence.
30.In this case, for the reasons already provided, I am satisfied that issues of violence and abuse and neglect should not be to the forefront of the court's deliberation. That leaves meaningful relationships. In this case the father proposes that the children should predominantly live with him and the mother proposes more or less the same in her favour.
31.I suspect and believe that the law was probably changed in mid‑2006 because very often a parent found a situation where one of them was consigned to what appeared to him or her to be a subsidiary role regarding the care of their children which was unsatisfactory and not to the benefit of the children concerned. No doubt it was for that reason that the Commonwealth Legislature emphasised the desirability of children having a meaningful relationship with both their parents and indeed this aspect is emphasised by the principles and objects of the Family Law Act regarding children, which is set out in the commencement of Part VII of the act.
32.The additional matters, I will not go through them in any great detail. I think at this stage, although it is the mother's position that N and G are expressing a view that their preference would be to live with her, given the children's age and given the nature of these proceedings at this stage, the views of the children are not likely to be easily discernible and for that reason should not be strongly influential in this case.
33.I have to consider the nature of the relationship the children have with each of their parents and others, including grandparents. In this case I am satisfied, as I have already said, that the children concerned have a very significant relationship with both their parents and indeed with others; most certainly their paternal grandparents. I am not aware of their maternal relationships and whether there are any maternal relatives, apart from the mother in this country.
34.I have to also consider the likely effect of any changes in the children's circumstances and I think in this case that is a significant factor. The children I think have had a difficult and disruptive time over the last year or so. They lived in Michigan from September until March, with their mother. They have returned to this country and lived with their father. If the mother is successful in her proposal there will be another change in their circumstances. There will be, as I say, a final hearing of the matter and it is not beyond the bounds of possibility that there may be yet another change. Accordingly, I think at this stage the children are likely to benefit from some level of stability.
35.I have to consider the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. As I have already indicated, both parties are very critical of the other in regard to this issue. Certainly, given the findings that the Honourable Judge Duggan made, it is difficult to see really how the children, given their tender years, would have maintained a significant relationship with their father if he had remained in this country and they had remained in Michigan. As I say, I am perhaps not in a position to make a definitive finding about that aspect of the case. Certainly it is the mother's position that the father, for motives of his own, wishes to circumscribe her relationship with the children because of his own particular emotional needs.
36.I have to consider the capacity of each of the parties to provide for these children and at this stage it seems to me that both parties are in a position to provide for the needs of the children concerned. There are no significant issues of neglect arising in this case.
37.If the presumption is applied, and I think in this case it should be applied, and is not rebutted, that is not the end of the matter. I am required to consider firstly, that the children concerned live in an equal time or shared care arrangement with their parents or, failing that, in an arrangement whereby they spend substantial and significant time with both their parents.
38.Again, the reason for those amendments is to ensure that, wherever possible, children have a meaningful relationship with both their parents. I think it is the clear import of the legislation that children gain meaning from their parental relationship, not only by the quantity of time they spend with their parents but also its quality. It is desirable that both a child's parents and the child concerned feel that both parents are meaningfully involved in all aspects of the child's life. However, both outcomes - equal time, and substantial and significant time - are not to be applied if such outcomes are not reasonably practicable.
39.In this regard I have to consider a number of matters that are set out in section 65DAA(5). I have to consider how far apart the parents live. I have to consider the parents' current and future capacity to implement such arrangements, the parties' current and future capacity to communicate with one another, and perhaps most importantly the impact that such an arrangement would have on the children concerned.
40.Rightly or wrongly, the parties are living some geographical distance apart from one another: the father in a rural setting on the outskirts of Adelaide; the mother in an inner suburb. I think, given what has occurred between the parties, it is self-apparent that it will be difficult for them to implement a shared care or substantial and significant time arrangement and as is obviously the case neither party, as his or her foremost position, advocates such an arrangement. At this stage, as a result of all that has gone before, the parties do not trust one another and as a result it is likely to be difficult for them to communicate with one another and resolve difficulties concerning the children.
41.I also am concerned that the conflictual nature of the parties' relationship is potentially likely to be deleterious to the two children concerned. So although I have applied the presumption of equal shared parental responsibility, at this stage I do not think it is likely to be in the best interests of the children, or reasonably practicable, for a shared care arrangement or a substantial and significant time arrangement to come about. Sadly, at this point the children must live predominantly with one parent.
42.In such circumstances, I think the additional consideration to which I have alluded, regarding not changing the arrangements for the care of the children precipitantly, comes to the forefront. I am concerned that it would be unsettling for the two children concerned for there to be yet another significant change in arrangements for their care. Clearly the children have a need to have a significant relationship with their mother and I think it is likely to be in the best interests of all that the matter be heard sooner rather than later.
43.I appreciate the mother will be disappointed, but I have come to the view that it is likely to be, at this stage, in the best interests of N and G that they continue to live with the father and that they spend time with their mother on alternate weekends. Sadly, the geographical constraints prevent there being a more substantial and significant arrangement.
44.For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 1 August 2007
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