Newman & Tate

Case [2020] FamCA 1114

FAMILY COURT OF AUSTRALIA

Newman & Tate [2020] FamCA 1114

File number(s): SYC 4869 of 2017
Judgment of: MCCLELLAND DCJ
Date of judgment: 24 December 2020
Catchwords: FAMILY LAW – PARENTING – Review of Senior Registrar’s decision – Where there is an Application before the Court to review a decision of the Senior Registrar in respect of interim parenting arrangements – Senior Registrar’s orders provide for one of the twin children to live with the father and the other twin and third child live with the mother and spend supervised time with the father – Where there is no dispute in respect to the interim arrangements for the parties’ third child – Where the parties have competing applications in respect to the interim living arrangements for the twin children – Where the child living with the father spent a period of time in Hospital subsequent to a mental health episode – Where the child living with the father has expressed strong views in respect to his propensity to self-harm if he were not to live with the father – Where the Independent Children’s Lawyer contends that a cautious approach should be taken by the Court – Consideration given to the potential risk to the children’s mental health in respect to each of the parties’ applications – Orders made for each of the children to remain living with the respective parents – Orders made for the children to spend un-supervised time with the parent with whom they do not live as agreed between the parties – Orders made for the parties to surrender their firearms.  
Legislation:

Australian Constitution s 71

Family Law Act 1975 (Cth) s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 140

Family Law Rules 2004 (Cth) r 18.08, 18.10.
Cases cited:

A v A (1998) FLC 92-800

B and B (1993) FLC 92-357

Banks& Banks (2015) FLC 93-637

Blinko & Blinko [2015] FamCAFC 146

Cowling v Cowling (1998) FLC 92-801

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Feiteiro & Feiteiro [2019] FamCA 647

GO v CS FC Palmerston North FAM 2003-054-000859 21 January 2005

Godfrey & Sanders (2007) 208 FLR 287

Goode and Goode (2006) FLC 93-286

Harris v Caladine (1991) 172 CLR 84

Henley & Henley [2019] FamCA 101

Johnson & Page (2007) FLC 93-344

M & S (2007) FLC 93-313

M and M (1988) FLC 91-979

Masson v Parsons (2019) 266 CLR 554

Mazorski v Albright (2007) 37 Fam LR 518

Morgan and Miles (2007) FLC 93-343

N and S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

R & C [1993] FamCA 62.

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

The Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

The Hon Richard Chisholm ‘Unacceptable Risk…

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AGLC
Newman & Tate [2020] FamCA 1114
Case
[2020] FamCA 1114
Decision Date

CaseChat Overview and Summary

The case of Newman & Tate concerned an application to review interim parenting orders made by a Senior Registrar. The dispute primarily involved the living arrangements for twin children, X and Y, aged 15, and their younger sibling Z, aged 12. The Senior Registrar's initial orders provided for one twin to live with the father and the other twin and the third child to live with the mother, with supervised time for the father. The mother sought orders for all children to live with her and attend school in Sydney, with limited supervised time for the father. The father sought orders for the children to live with him and attend school in City H.

The court was required to determine the interim living arrangements for the twin children, X and Y, and the third child, Z, considering the children's best interests. Key issues included the expressed views of the children, particularly X's strong statements about self-harm if not living with the father, the potential risk to the children's mental health, the children's established schooling and social connections in City H, and the mother's unilateral relocation of the children to Sydney. The court also considered the Independent Children's Lawyer's contention for a cautious approach.

In reaching its decision, the court applied the principles outlined in section 60CC of the Family Law Act 1975 (Cth), which mandates consideration of various factors relevant to a child's best interests. The court gave significant weight to the expressed views of X, including his concerns about self-harm, and the potential negative impact of further disruption on the children's mental health. The court also considered the established relationships and schooling in City H. The court noted the mother's relocation to Sydney and the father's desire for the children to remain in their existing environment.

The court ordered that the previous interim orders be suspended, and that X live with the father. The children Y and Z were ordered to live with the mother. Both parties were ordered to facilitate unsupervised time between the children and the parent with whom they did not reside, as agreed between them. The father was authorised to enrol X at his school in City H for the upcoming academic year. Furthermore, both parties were ordered to immediately surrender any firearms in their possession to the police. The court also set out a process for any party wishing to seek costs orders.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The orders made on 4 March 2020 that the child, X born … 2005 (“X”), live with Ms Newman (“the mother”) be suspended.

2. X shall live with Mr Tate (“the father”).

3. X shall spend time with the mother as agreed between the parties.

4. The children, Y born … 2005 (“Y”) and Z born … 2008 (“Z”), shall live with the mother.

5. Y and Z shall spend time with the father as agreed between the parties.

6. The parties are granted leave to approach the Chambers of Senior Registrar Campbell for a relisting of the matter in relation to any dispute concerning the frequency or length of time that Y and Z spend with the father and/or the frequency or length of time that X spends with the mother.

7. The father is authorised to enrol X at J School in City H for the commencement of the 2021 school year.

8. Both parties are to forthwith attend the City H Local Area Police Command to surrender, to the supervising officer, such firearms as they currently have in their possession.

9. In the event that either party wishes to make an application for costs in respect to these proceedings or an earlier proceeding involving the parties, they are to, within 14 days of the date of these orders:

(a) File an updated financial statement;

(b) File and serve, including by emailing my Associate at ...@familycourt.gov.au, a summary of argument of no more than two (2) pages typed in 12-point font setting out the basis upon which they contend an order for costs should be made in their favour.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

Background

Background to the litigation

The parties’ competing proposals are contained in their respective Applications which have been set out above.Parties’ contentions and agreed or objectively verifiable facts The following relevant background summarises the parties’ respective contentions and agreed or objectively verifiable facts. On … 1974, the father was born. He is currently aged 46 years. On … 1978, the mother was born. She is currently aged 42 years. In early 2003, the parties commenced a relationship and, in September 2003, they commenced cohabitating. On … 2004, the parties married. On … 2005, the twins were born. They are currently aged 15 years. On … 2008, the parties’ child Z was born. He is currently aged 12 years. During the course of the parties’ relationship, they relocated several times within the State of New South Wales however, predominantly resided in the local government area of K Town, which is a rural region proximate to City H. Prior to the parties’ separation, the parties were residing in L Town. In October 2016, the parties separated. Since separation, the father has resided on his family’s farm property at Suburb M in the City H region while the mother and the children continued to reside in L Town. The father states that, following the parties’ separation, the mother did not facilitate the children spending time with the father on a regular basis. On 31 July 2017, the father commenced proceedings in the Family Court of Australia after having not seen the children for approximately two (2) months. On 21 September 2017, interim consent orders were made providing for the children to live with the mother and spend time with the father on a graduating basis. In 2018, the twins commenced high school at J School in City H. In mid-2018, the mother and the children moved into rental accommodation in City H. On 4 September 2018, orders were made transferring the proceedings to the Federal Circuit Court of Australia. On 19 July 2019, the mother filed an Amended Response to Initiating Application seeking orders that would allow her to relocate with the children to the “northern suburbs of Sydney” and enrol the children in N School in Suburb O. On 27 August 2019, orders were made by consent for Dr C to prepare a single expert report and for the cost of that report to be paid by the mother. On 20 December 2019, a copy of Dr C’s Single Expert Report dated 19 December 2019 was released to the parties. The father contends that, from 11 January 2020 to 18 January 2020, the children were in his care and, during this period, the children stated, in response to a question by the father, that they “want to stay in City H and keep going to [J School]”. The father also states that he was introduced to Y’s girlfriend, who resides in City H, while the children were spending time with the father in January 2020. The father sets out evidence that, in late-January 2020, that the mother had unilaterally relocated with the children to Sydney and enrolled them in N School.

Evidence

Evidence Before The Court

The mother seeks that orders be made in accordance with the Minute of Order provided to the Court by email dated 16 December 2020 (marked ‘Exhibit F’ in the proceedings), as follows:1.That the children X and Y both born … 2005 and the child Z born … 2008 (“the children”) live with the Mother.2.That the Mother have sole parental responsibility for the care, welfare and development of X born … 2005, Y born … 2005 and Z born … 2008. The Mother will take into account the wishes of the Father and will accommodate same where possible.3.That the children attend N School, Suburb O.4.That for the first four (4) months from the date of these Orders, the children will spend time with the Father in Sydney for a period of 8 hours from 9am to 5pm one day every fortnight and that such time be supervised by a commercial supervision provider.5.That on the basis that the reports prepared by the commercial supervisor are positive, for the second four (4) months from the date of these Orders, the time with the Father will be in the same terms as set out in 4. above but will be on an unsupervised basis.6.That for the third four (4) months from the date of these Orders, the time with the Father will be every alternate weekend from 9am on Saturday to 6pm the following Sunday and shall take place in City H and will be on an unsupervised basis.7. That in relation to the children’s school in Sydney, that the Mother will:a)authorise N School to provide the Father with copies of school reports, notices, other publications and any information he may request about the child;b)keep the Father informed of the child’s significant school and extra-curricular activities of which the Father is at liberty to attend;8.That the Father be permitted to communicate with the children by text message. 9.That each party inform the other as soon as practicable of any medical emergency involving the children that the parties keep each other informed of their current residential addresses, house and mobile telephone numbers and email addresses.10.That each party do all things to enable the children to engage with T Service being the mental health program that X and Y are engaged with. EVIDENCE The father relied upon the following documents:(a)Application in a Case filed 23 November 2020;(b)Undertaking of the father filed 4 November 2020;(c)Response to an Application in a Case filed 16 October 2020;(d)Affidavit of the father filed 16 October 2020;(e)Affidavit of the father filed 23 October 2020;(f)Affidavit of the father filed 14 December 2020; and(g)Single Expert Report of Dr C dated 19 December 2019. The mother relied upon the following documents:(a)Application in a Case filed 9 October 2020;(b)Application in a Case filed 12 October 2020;(c)Affidavit of the mother filed 12 October 2020;(d)Affidavit of the mother filed 27 October 2020;(e)Affidavit of the mother filed 3 November 2020;(f)Affidavit of the mother filed 30 November 2020;(g)Affidavit of the mother filed 15 December 2020; and(h)Single Expert Report of Dr C dated 19 December 2019.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. These considerations are as follows:·Sub-section (3)(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;·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;·Sub-section (3)(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;·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living;·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;·Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs;·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant;·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander;·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;·Sub-section (3)(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; and·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant considerationConsideration In arriving at my decision, I have had regard to all of the considerations set out in s 60CC of the Act. Under the immediately following subheading, I will set out those considerations which I regard to be of sufficient relevance such that they have impacted upon the decision that I make in this matter.Meaningful relationship