Mowery & Anor and Mylin & Anor

[2015] FamCA 1067

FAMILY COURT OF AUSTRALIA

MOWERY AND ANOR & MYLIN AND ANOR [2015] FamCA 1067

FAMILY LAW – CHILDREN – BEST INTERESTS – RELOCATION – REVIEW OF REGISTRAR’S DECISION – Where the children have lived with their parents, being lesbian partners, since their birth – Where the biological father of the children and his partner, being the respondents, have spent time with the children by agreement with the parents – Where the parents moved to Western Australia with the children – Where the Senior Registrar made Orders requiring the return of the children to the greater Sydney area upon application by the respondents – Application by the parents of the children for review of the Senior Registrar’s decision – Where it is found that the children’s primary attachment is to their parents – Where the Orders of the Senior Registrar are likely to cause financial stress for the parents – Where the Orders of the Senior Registrar would result in a separation of the children from their birth mother, who would stay in Western Australia to remain in her employment – Where it is found that it is in the best interests of the children that they be permitted to live with both their parents – Review application successful – Orders made that the children remain living in Western Australia with their parents and spend time there with the respondents there.

Family Law Act 1975 (Cth) s 60CC

APPLICANTS: Ms Mowery & Ms Foster

RESPONDENTS: Mr Mylin & Mr Pierce

FILE NUMBER: SYC 5344 of 2015

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 25 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITOR FOR THE APPLICANT: Harris & Company

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Linden Legal

Orders

IT IS ORDERED

1. That the application for interim orders filed by Mr Mylin (“Mr Mylin”) and Mr Pierce (“Mr Pierce”) on 14 August 2015 be dismissed.

2. That in the event that Mr Mylin and Mr Pierce (or either of them) travel to Western Australia then, provided that they give not less than 14 days’ notice to Ms Mowery and Ms Foster (“the parents”), they shall spend time with the children, B born … 2011 and C born … 2013 (“the children”) as agreed and in the absence of agreement:

   (a)From 9.00 am on Saturday until 5.00 pm on Sunday for no more than two consecutive weeks in each month provided that such weekends do not include the weekend of Mothers’ Day;

   (b)       From 3.00 pm on Christmas Day until 5.00 pm on Boxing Day; and

   (c)Unless otherwise agreed, the children shall be collected from their home at the commencement of the time and returned to their home at the conclusion of the time.

3. That the parents do all things required to facilitate the children having Skype contact with Mr Munro and Mr Pierce (or either of them) not less than once each week.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mowery & Anor & Mylin & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5344 of 2015

Ms Mowery & Ms Foster

Applicants

And

Mr Mylin & Mr Pierce

Respondents

REASONS FOR JUDGMENT

1. Ms Mowery (“Ms Mowery”) and Ms Foster (“Ms Foster”) (“the applicants”) are the parents of B born in 2011, presently four years old, and C born in 2013 , presently two years old (“the children”). Ms Mowery is the birth mother and biological mother of both of the children.

2. Mr Mylin is the biological father of the children and Mr Pierce is Mr Mylin’s de facto partner. They are collectively referred to as “the respondents” in these reasons.

3. At all relevant times the children have lived with their parents, the applicants, and spent time, by agreement, with the respondents. There is no dispute that the respondents are persons interested in the welfare of the children and thus entitled to bring an application before the Court.

4. The present proceedings arise out of the parents and the children having moved to Western Australia. An application was made by the respondents that the Court require the parents to return the children to the area in which they formerly resided in greater Sydney. On 21 October 2015, the Senior Registrar made Orders requiring the parents to return the children to the greater Sydney area and for them to spend time with the respondents each week from 10.00 am Saturday until 5.00 pm Sunday and on special occasions.

5. The parents have sought to review the decision of the Senior Registrar and thus the matter proceeds before me as a hearing de novo in which the parents are the applicants.

6. There are a number of contested issues of fact which cannot be resolved. The most relevant issue is the nature and extent of the relationship which the children have with the respondents.

7. The applicants depose that after B was born the respondents visited every couple of months for dinner as friends. The respondents depose that following B’s birth they went to spend time with B about once per week in 2011 and weekly or fortnightly in 2012.

8. In late 2011, the applicants and the respondents, with B, visited Mr Mylin’s parents and Mr Pierce’s parents at their respective residences.

9. For two months in 2012, the applicants and respondents lived reasonably close to one another in Sydney and, during that period, the applicants concede that the respondents cared for B on Saturday mornings approximately five times for 30 minutes. The respondents say that the periods were slightly longer, 45 minutes, and more frequent.

10. The applicants and the respondents went on a 17 day camping holiday together to Western Australia when B was about eighteen months old.

11. The applicants moved to the Region D in 2012 and bought a house.

12. In mid-2012, Ms Mowery became pregnant again, using semen which had been donated by Mr Mylin, and C was born in 2013.

13. In the latter part of 2013, the respondents also moved to the Region D but not to the same town as the applicants.

14. The applicants deposed that between 2013 and mid-2015, the respondents came to their house for dinner on average every six weeks, that the respondents purchased swimming lessons for the children and took the children to those lessons on those occasions. They deposed that the children have slept at the respondents’ home on approximately four or five occasions per year over the last two years and on two of these occasions the applicants stayed overnight with the children. On the other nights the respondents babysat when the applicants went out.

15. The respondents deposed that in 2013, B stayed overnight with them on about six occasions without the applicants and on two or three other occasions when the applicants also stayed over.

16. In 2013, the respondents gave the applicants a motor vehicle which they had purchased two years earlier because they wanted the children to have access to a safe vehicle.

17. The respondents deposed that in 2014, the children stayed overnight with them on at least 11 occasions, mostly for one night but for two nights on five occasions. The applicants concede that the children have stayed with the respondents for two nights at a time on two or three occasions.

18. The applicants and the respondents have spent Christmas together with the children. They have spent occasional weekends away together with the children. They holidayed in Country E together with the children.

19. Whilst it is not possible, in the limited compass of this hearing, to determine which version of the time the respondents spent with the children is to be preferred, it is clear on all of the evidence that the children have a significant relationship with the respondents whom they call ‘daddy’ and ‘dad’.

20. The respondents tendered in evidence a bundle of cards and photographs which collectively make it clear that the children regard the respondents as their daddy and their dad. These cards included Fathers’ Day cards addressed to both of the respondents by each of the children and other Fathers’ Day acknowledgments from each of the children to each of the respondents.

21. In the Region D, Ms Foster ran a business. Ms Mowery was not able to find suitable employment.

22. The applicants decided to sell and move to Western Australia. Their reasons are set out in the affidavits of Ms Foster sworn 13 October 2015 and 12 November 2015:

    ·    The business was not successful and Ms Foster wanted to sell before it deteriorated further.

    ·    Ms Foster’s long term friend, Ms F, died in March 2015 after a long illness.

    ·    Ms Foster’s father aged 88, who lives in Western Australia, became seriously ill and she wanted to move closer to him.

    ·    Ms Mowery had not been able to find suitable employment.

    ·    The applicants had incurred significant credit card debt for living expenses and a debt to the Australian Taxation Office. Their income was diminishing and their debt was mounting. Ms Foster deposed that their total credit card and tax debt was about $50,000.

    ·    They decided that they had no alternative but to sell their house to pay off their credit card and tax debt.

    ·    They formed the view that, once they sold their house, they would not be able to afford to buy back into the Region D market.

    ·    B was due to start school in 2016 and the applicants wanted to be settled before the start of the school year.

23. The applicants deposed that they had told the respondents, before the children were conceived, that their long term plan was to move to Western Australia. That is not conceded by the respondents and appears to be in issue. However, Ms Foster’s parents and two sisters live in Western Australia and the children have cousins there. Ms Foster’s sisters live in the G Town area in Western Australia, where the applicants live with the children.

24. On 26 April 2015, the applicants sent a text message to the respondents which read:

    Boys … We had some big news to tell you last night but couldn’t face it once the time came. So stressful. I know that you both hate text and letters but we both get cold feet with confrontation and anything that may hurt anyone, especially you two. It’s this … we are moving to the [H Region]. We would like to make it happen by next year but it’s all dependant on selling our place etc etc. but we can’t keep it from you as we really want to make it happen. (By the way, it was the idea of inheriting that made us think where in the world is our dream place to live … No inheritance but we think, if that’s our desire we should chase it) It’s huge and hard but something we have been toying with for the entire time we’ve been together. We love you xx

25. On 2 May 2015, the respondents and the applicants had dinner together at the home of the applicants. After dinner the respondents told the applicants that they were upset about their proposal and did not agree that they could take the children to Western Australia.

26. On 9 May 2015, the respondents spent the day with the children. The children stayed overnight with the respondents on the weekend of Saturday 16 May 2015. The children next stayed with the respondents on 13 June 2015 and they did not see them again until 8 August 2015.

27. The respondents deposed that the applicants rebuffed any requests which they made to spend time with the children.

28. Mediation was arranged. It is not clear from the evidence when the parties attended.

29. In July 2015, the applicants put their home on the market and it sold (by which it is assumed contracts were exchanged) within 24 hours.

30. The final mediation session took place on 6 August 2015. The applicants deposed that they told the respondents that they intended to move to Western Australia, that they had sold their house and intended moving with the children in the week of 10 August 2015.

31. The respondents deposed that on the afternoon of 8 August 2015, they received a telephone call from the applicants who told them that they had sold their house, arranged removalists, and intended to fly out to Perth.

32. On Monday 10 August 2015, their applicants’ belongings were moved out of their Region D home by removalists.

33. On 10 August 2015, a letter was written by the solicitors for the respondents to the applicants (forwarded to them by email) stating, inter alia:

    We confirm that our clients do not consent to the childrens’(sic) removal from the Greater Metropolitan Sydney area including [Region D]. Unless we receive your undertaking within 7 days of the date of this letter that you will not remove the children from [Region D], we will have no alternative but to file an Application in the Family Court restraining the childrens’ (sic) removal. We trust that this will not be necessary. If it is your wish to remove the children then you will have to file an Application in the Court for permission to do so. Our clients will be opposing that Application.

34. The final premise of the letter, that the applicants needed to file an application to seek the permission of the Court to move to Western Australia with the children, is not correct. The applicants, as parents, each have parental responsibility for the children and, absent any order pursuant to the Family Law Act 1976 (Cth) (“the Act”), are thus entitled to make decisions about their long term care, welfare and development, including where the children live.

35. On 10 August 2015, the applicants received by email the letter from the respondents’ solicitors. On that day they had dropped their cat at the airport to be flown to Perth. Their tickets had been booked to fly the children and themselves to Perth.

36. Settlement of the sale of the applicants’ home took place on 13 August 2015.

37. The application by the respondents seeking final and interim parenting orders, including orders restraining the applicants from removing the children from the greater Sydney area, was filed on 14 August 2015 by which time the applicants were in Western Australia with the children.

38. Ms Foster deposed that the cost of the move to Western Australia was about $14,000, including costs of transporting their cars, removalist’s costs and airfares.

39. The applicants travelled with the children to Perth and rented a home in G Town in Western Australia, about two and half hours travelling time south of Perth. Ms Mowery secured employment in G Town earning about $54,000 per annum.

40. B was enrolled in kindergarten at G Town Primary School and C was enrolled at a pre-school three days a week.

41. Ms Foster set about establishing a business. She spent about $6,500 on printing advertising material, setting up a website and advertising. The business is in its early stages and the family relies on Ms Mowery’s income.

42. Ms Foster has two sisters who live in the G Town area and the applicant and the children visit Ms Foster’s parents every second weekend. Ms Foster is also able to help her parents with shopping and taking them on hospital visits when they need assistance. Ms Foster deposed that the primary reason for moving to Western Australia was that she would be able to provide assistance to her parents. The children have cousins in Western Australia.

43. The applicants have signed contracts for the purchase of a house and land package in G Town with a contract price of $510,000. Pursuant to the agreement they have four months to obtain finance and their mortgage broker has advised that Ms Mowery needs to be in full-time employment for four months to establish her borrowing credentials.

44. Accordingly it is the applicants’ position that, in the event that the Court orders the children to be returned to New South Wales, Ms Foster will return with the children but Ms Mowery will remain in Western Australia in employment. The children will then be separated from their birth mother.

45. This is a decision about the best interests of the children and falls to be determined pursuant to the provisions of s 60CC of the Act which are set out below:

FAMILY LAW ACT 1975 - SECT 60CC

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) The primary considerations 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.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3) Additional considerations are:

(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;

(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);

(c) 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;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(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;

(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;

(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;

(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;

(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;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(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;

(m) any other fact or circumstance that the court thinks is relevant.

1. The provisions of s 60CC(2)(a) do not apply to the relationship between the children and the respondents, who are not parents. However that provision is relevant in weighing up the competing considerations pursuant to s 60CC(3) because the respondents’ application, that the children should return to the greater Sydney area, will necessarily have the effect that the children will not be able to remain in the same house as both of their parents and will be separated from their birth mother.

1. Similarly, the provisions of s 60CC(3)(c) and (ca); and (d)(i) apply specifically to parents and have no application in the present proceedings. However, those factors are relevant and can be considered under the “catchall” of s 60CC(3)(m).

2. The provisions that relate to family violence have no application here.

3. Section 60CC(3)(a): The children are aged four and two and no weight could be given to their views.

4. Section 60CC(3)(b): There could be no doubt that the children’s primary attachments are to their parents, the applicants. No doubt they have a loving relationship with the respondents who have been present in their lives since their respective births, but this relationship does not have the importance and significance for the children of their relationship with their parents.

5. Section 60CC(3)(d): If the children remain in G Town with their parents, they will be physically separated from the respondents with whom they have an important and loving relationship. They will be able to communicate by Skype which will assist in the maintenance of the relationship. The respondents have offered to pay the costs of the children’s pre-school fees if they return to greater Sydney, estimated to be up to four days a week for B and three days for C or $560 per week or more than $20,000 per annum. Their willingness to assume those costs suggests that they would be able to afford to travel to Western Australia with some frequency to spend time with the children.

6. The applicants do not oppose Skype contact between the respondents and the children and they suggest that the respondents can spend time with the children in Western Australia.

7. If the Orders require the children to return to greater Sydney, then they will return with Ms Foster, and Ms Mowery will stay in Western Australia to work. The children have never lived apart from Ms Mowery for longer than the periods of two days they occasionally spent with the respondents. Given the age of the children, a separation from one of their parents, particularly for C who is only two years old, will be stressful for them and may cause them psychological distress.

8. It is not possible to predict how long it might take for the matter to be finally heard and determined. It would not be unreasonable to suppose that the time between the children’s return with Ms Foster and the delivery of judgement would be at least one year. With the exception of any holiday time available to Ms Mowery when she may be able to travel to Sydney to spend time with the children, they will be separated from her. The parents will, at least for the foreseeable future, have only Ms Mowery’s salary for their financial support and Ms Foster will have to find and pay for accommodation for her and the children. If they have to pay rent both in Western Australia and in greater Sydney, it is unlikely that there would be any capacity to also pay for the children and Ms Foster (they are too young to travel alone), to visit Ms  Mowery in Western Australia.

9. It is likely that the effect on the children of being separated from Ms Mowery would be significantly more detrimental than the effect of being separated from the respondents.

10. Section 60CC(3)(f):            There is no suggestion that the children are other than happy, well-adjusted and meeting their developmental milestones. The respondents, to their credit, make no criticism of the applicants in relation to their care of the children.

11. The respondents have cared for the children for short periods of time but there is no suggestion that they will be primary carers. Their application, at its highest, seeks time with the children on alternate weekends, for special days and for half of school holidays.

12. Section 60CC(3)(g) and (h): Have no particular relevance.

13. Section 60CC(3)(l):           Sadly, these parties are in the course of litigation which is unlikely to be affected by whatever orders are made for the children’s residence until the final hearing.

14. Section 60CC(3)(m): The respondents are not parents of the children and have no right to participate in long-term decision making. They have not been invited to participate by the applicants who regard that responsibility as theirs alone. The applicants appear to have determined how much time the children will spend with the respondents. In the period between May 2015 and August 2015 when the applicants were unwilling to facilitate time as requested by the respondents, the respondents accepted the applicants’ decision and did not institute proceedings but rather arranged mediation and no criticism could be levelled at them in relation to that decision.

15. The respondents have no obligation to maintain the children and cannot be criticised for not doing so. They have made a contribution to the children’s financial care by giving the applicants a car, paying for swimming lessons and, for a time, putting small amounts of cash in the children’s bags until they were asked by the applicants to cease doing so.

16. The respondents are not parents but they are significant persons in the children’s lives and have acted appropriately and responsibly, commensurate with their role.

17. It is appropriate to consider the financial effect on the applicants of the orders sought by the respondents. They are not financially well off. They sold their home because they could not meet their expenses. The income of Ms Mowery, which is all they have to support themselves and the children, is not great. They have spent what is, for them, a considerable amount of money in moving to Western Australia and establishment expenses for Ms Foster’s new business. The set up costs of the business would be thrown away if Ms Foster cannot maintain her involvement. If Ms Foster and the children return to greater Sydney, they will have to pay rent on two houses and the expenses of two separate households. There is no evidence that Ms Foster will be able to find suitable employment in greater Sydney to supplement their available income.

18. The imposition of financial stress upon the family is likely to cause stress to both of the parents and affect their ability to provide optimum care for the children.

CONCLUSION

1. The interests of these children require that they be permitted to live with both of their parents in Western Australia. Orders will be made accordingly.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 December 2015.

Associate:

Date:  2/12/2015