Papp and Myers

[2019] FamCA 557

FAMILY COURT OF AUSTRALIA

PAPP & MYERS [2019] FamCA 557

FAMILY LAW – CHILDREN – Review of Registrar’s decision – interim orders sought by father for overnight time pending final hearing – Best interests – where the mother and the father were in a casual relationship –where the father seeks to have a meaningful relationship with the child – where the mother relocated to Town B – where the father seeks interim orders for overnight time – overnight time ordered.

Family Law Act 1975 (Cth) ss. 60CA, 60CC

Family Law Rules 2004 (Cth) rr. 1.04, 18.08, 18.10

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Papp

RESPONDENT: Ms Myers

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

FILE NUMBER: SYC 5372 of 2018

DATE DELIVERED: 16 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 14 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Ryan QC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

THE RESPONDENT: In Person

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Newland

Order amended pursuant to sub-rule 17.02(1)(g) of the Family Law Rules 2004 (Cth)

Orders

1. That each of the mother and father shall file and service by 4:00pm on 28 October 2019 an Amended Initiating Applications and/or Amended Response to Initiating Application in which they set out with precision the final parenting orders sought.

2. That each of the mother and father shall file and serve by 4:00pm on 28 October 2019 any further affidavits that they intend to rely on at the final hearing.

3. That Orders 2.1 and Order 2.2 of the interim Orders made on 27 February 2019 be discharged.

4. That until further order, the father spend time with the child each alternate weekend from 9:00am Saturday until 4:00pm Sunday, with changeover of the child to occur at Town A Airport, commencing on 24 August 2019.

5. That for the purposes of Order 4 herein the father be at liberty to travel with the child by air either to the Gold Coast or Sydney and that all the associated costs of that travel be paid for by the father.

6. That the father provide to the mother 48 hours prior to the time in Order 4 herein occurring, details of all flights for the child and that the mother will do all things necessary to ensure changeover occur as reasonably close to the time provided for in Order 4 herein so as to allow the child to spend the maximum time with the father.

7. That the parents communicate all issues about the welfare of the child by text message and the parents shall each contact the other immediately should there be any urgent medical issues in relation to the child.

8. That within 48 hours of the date of these Orders, the parents will advise the other of their current residential address and mobile telephone numbers and any changes thereto within 48 hours of any change occurring.

9. That the mother shall enrol in the program known as “Parenting After Separation” or such other similar program as recommended by E Group or F Group and shall provide to the father and the Independent Children’s Lawyer written confirmation of enrolment and a certificate of completion and the mother shall enrol in the first available placement on offer.

10. That each party be restrained from saying anything to or in the presence of X or permitting any other person to say anything to or in the presence of X which is in anyway derogatory of the other parent or say anything in relation to the current proceedings.  

NOTATIONS

A.That the time arrangement set out in Order 4 are contended by the father not to be in the best interest of X but are all that can be agreed in the circumstances that the mother has unilaterally relocated X’ primary residence from Sydney to Town B.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5372 of 2018

Mr Papp

Applicant

And

Ms Myers

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings between the Applicant Father, Mr Papp, (“the Father”) and the Respondent Mother, Ms Myers (“the Mother”).  They concern the child of the relationship X, born in 2015 (“the Child”).  The child is four years of age.

2. The proceedings were commenced by the father on 23 August 2018 by filing an Initiating Application. 

3. In summary, on a final basis the father seeks orders that the child live in Sydney and spend time with both parents, while the mother seeks that the child live in Town B, NSW, with her and spend time with the father.

4. There is an Independent Children’s Lawyer.

5. It is unnecessary for the purpose of this judgement to set out in any detail background facts.  I will refer to such facts as necessary in the course of these reasons.

6. It appears to be uncontroversial that between about mid-2013 and early-2015 the parties resided as flatmates in accommodation at Suburb C in Sydney.  It appears that between June and November 2014 the parties had a casual intimate relationship and the mother fell pregnant, resulting in the birth of the child.

7. The mother was born and educated in Sydney.  At some point prior to June 2018, her parents retired to Town B.  In June 2018, the mother and child moved to Town B and lived with the maternal grandparents.  The mother had previously lived in Town B for a short time before returning to Sydney, and then permanently returning to Town B.  The father continues to reside in Sydney.

8. The parties attended a Judicial Duty List hearing before his Honour Justice Loughnan on 3 September 2018.  On that occasion both parties were initially represented.  However, during the morning the mother instructed her legal representation to cease acting for her.  Orders were made by Loughnan J, by consent, allowing for the child to spend time with the father.

9. The mother filed a Response on 21 September 2018.  In summary she sought orders that the child spend time with the father in a two week cycle on one weekend in the first month in Sydney between 2:30 pm and 5:30 pm on both Saturday and Sunday, and on one weekend in the second month in Town B, again on Saturday and Sunday at the same times.

10. At a hearing before his Honour Justice Johnston on 24 September 2018, the father was represented by junior counsel and the mother by senior counsel from Melbourne.  On that occasion orders were made, by consent, for the appointment of Ms D as a single expert.

11. On 15 November 2018, the mother filed an Amended Response to an Application in a Case and the Initiating Application.  In both documents she sought orders that the child spend time with the father each alternate weekend, with one alternating weekend being in Town B, and the other in Sydney.

12. The father filed an Amended Initiating Application on 9 November 2018, seeking final and interim parenting orders including interim orders that the mother cause the child to live in Sydney.

13. On 5 December 2018, Senior Registrar Campbell made interim orders that the child live with the mother, that she be permitted to relocate the child’s residence to Town B, and that the balance of the father’s interim application be adjourned to 27 February 2019.

14. Ms D issued a family report on 13 February 2019.  The report included a recommendation that the mother be permitted to remain in Town B with the child, but that the child spend time with his father:

    “at as greater frequency as is practicable and that such time include overnight time, in the first instance on a non-consecutive basis at those times when X is brought to Sydney to spend time with his father or when the father spends time with him in his family’s Town A home.”

15. On 27 February 2019, the mother filed a minute of orders in court, which proposed that from 30 March 2019 the child spend time with his father on a four week cycle during the day on Saturdays and Sundays on the first weekend in Sydney and on the third weekend in Town B, and, more importantly, that upon the child attaining the age of 4 years, commence spending overnight time with the father, on the first weekend in Sydney from 3 PM Saturday until 1 PM Sunday and on the third weekend Town B from 3 PM to 6 PM Saturday and 10:30 AM to 1 PM Sunday.

16. Also on 27 February 2019, Senior Registrar Campbell resumed his hearing of the father’s Application for interim orders.  There is some dispute about what happened at the conclusion of the hearing.  It is not necessary to discuss that dispute here for the purposes of these reasons.  It is necessary to record however that on or about 15 March 2019, it appears orders said to have been made by Senior Registrar Campbell on 27 February 2019, were published.  Those orders provided that until 15 August 2019 the child live with the mother and spend time with the father, every second weekend commencing 23 March 2019 on Saturday and Sunday from 10 AM to 5 PM, provided the father collect the child from, and deliver him back to, the mother’s residence at Town B.

17. The orders further provided that from 16 August 2019, that is, when the child turned 4 years of age, he should spend time with the father in accordance with the previous regime, but that the child’s time with the father be extended to include overnight time from 10:00am Saturday to 6:00pm Sunday.  Various additional orders were made which need not be set out in detail in this judgement, but included provision for FaceTime communication between the child and the father. Senior Registrar Campbell also ordered the appointment of the Independent Children’s Lawyer.

18. On 20 March 2019 the father filed an Application in a Case seeking a review of the orders made by Senior Registrar Campbell.

19. I note here that a party may seek to review a Registrar’s decision pursuant to Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”).  Rule 18.10 of the rules specifies the powers of the Court on review as follows:

    1)  A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.

    Note:   In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.

    (2)  The court may receive as evidence:

    (a)  any affidavit or exhibit tendered in the first hearing;

    (b)  any further affidavit or exhibit;

    (c)  the transcript (if any) of the first hearing; or

    (d)  if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

20. It is clear that on hearing the father’s Application to Review, I undertake an original hearing of the father’s Application for interim parenting orders.

21. The matter came before me on 30 May 2019.  Shortly prior to that date, the mother’s previous solicitors filed a Notice of Ceasing to Act.  The mother herself appeared before me on 30 May 2019 and represented herself.  The mother sought an adjournment of the hearing of the father’s Application for Review on the basis that she had no legal representation, that she was short of funds, and needed time to make an application for legal aid.  She also made submissions that she needed time to prepare Affidavit evidence.

22. After hearing submissions from the parties, and particularly bearing in mind the existence of a fresh family report by Ms D, I acceded to the mother’s application for adjournment. I also made orders expediting the matter and provisionally listing it for hearing on 27 and 28 November 2019. Additionally, I made orders that the mother file and serve any further Affidavits relating to the father’s outstanding Application for Review, by no later than close of registry filing on 5 July 2019, and adjourned all outstanding applications to 8 August 2019 for mention or further hearing.  Orders were also made for the preparation of a brief case outline document from each party.  Subsequently, by reason of changes to the judicial calendar, the adjourned date was moved from 8 August 2019 to 14 August 2019.

23. The father complied with the directions of the Court.

24. On 14 August 2019, when the matter was called, the father was represented by senior counsel, the mother was represented by a solicitor and the Independent Children’s Lawyer appeared.  The Court was informed that the Independent Children’s Lawyer had circulated a proposed minute of order, and parties were granted some time to consider the proposal.

25. When the matter returned before me later in the morning, the mother appeared for herself, informing the Court that she had withdrawn instructions from her solicitor and wished to apply for an adjournment.  The solicitor who had appeared for the mother earlier in the morning sought leave to withdraw from the proceedings. 

26. The Mother told the Court that although she had a grant of legal aid, she was not satisfied that the solicitor representing her sufficiently understood the matter.  She said she needed to take control of the situation because she was the only one who understood the full details of the case.  She complained that she felt “railroaded” and needed time. The mother also told the Court that she had taken steps to prepare an Affidavit which was close to completion, but had been unable to contact her solicitor to enable the document to be finalised prior to 14 August 2019.  The mother repeated submissions that she was feeling overwhelmed, did not understand the process and had no legal representation to assist her.

27. For those reasons, the mother made an oral application for an adjournment. In particular, her submissions in support of the adjournment focused on allowing her to have sufficient time to prepare an Affidavit in relation to the father’s Application for Review.

28. The father pressed for his Application for Review to be determined and for the final hearing dates of 27 and 28 November 2019 to be confirmed, with directions for preparation for trial to be made.

29. The matter was stood down to 2.15pm.  At that time, the mother again pressed her application for an adjournment, saying again she needed time to prepare her Affidavit material.

30. I refused the mother’s application for an adjournment. 

31. The Court was not persuaded that the mother should be afforded a further opportunity to provide Affidavit evidence relating to the father’s application for review.  The uncontested history recorded above indicates that the mother had on at least two occasions, including 14 August 2019, withdrawn instructions from legal representation on a day when the matter was before the Court.  She had already been afforded procedural generosity on 30 May 2019 when the father’s Application for Review was adjourned, with over a month allowed for her to prepare Affidavit evidence.  On the one hand, while asserting she had taken steps to prepare an Affidavit, the mother also sought to persuade the Court that she needed more time to finalise the Affidavit with the assistance of legal representation, despite having withdrawn instructions for legal representation on that same day. 

32. The mother in making her submissions stated that she felt overwhelmed and nervous.  However, she presented as an intelligent and capable woman in making her submissions to the Court.

33. In refusing the adjournment I have taken account of the fact that the mother has had ample opportunity to prepare Affidavit evidence and engage legal representation.  She had actually engaged legal representation.  I was satisfied a further adjournment in light of proximate final hearing dates was not in the best interests of the child.  The position of the father was also a matter which needed to be weighed in the balance. 

34. I have also taken account of the claims of other litigants upon the resources of this Court, and the significant pressures on judicial time. While case management considerations are not an end in themselves, they are relevant. Rule 1.04 of the Rules provides that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case.

35. In light of those considerations taken together with reasonably proximate final hearing dates, I was comfortably satisfied that allocating a further adjourned date in relation to the father’s Application for Review could not be justified.  Accordingly I proceeded to hear arguments on the Application for Review.

36. Since the hearing of the Application for Review involved an original hearing of the father’s application for interim parenting orders, I have had regard to the material relied upon by the parties.   I have approached my decision by following the statutory pathway in Part VII of the Act, and bearing in mind the best interests of the child are the paramount consideration: s 60CA of the Act.  I have taken account of the primary and additional considerations set out in s 60CC of the Act.  As pointed out by the full Court in Banks & Banks (2015) FLC 93-637 it is not necessary to discuss each one of those consideration, only those considerations which are relevant, in light of the evidence and submissions of the parties.

37. The mother clearly has a close and warm relationship with the child.  She strongly agreed with the proposition that the child should have a meaningful relationship with the father.

38. As the Independent Children’s Lawyer pointed out, there were no allegations of any risk factors by either party concerning the child in the care of the other party.

39. The area of argument was reduced to a narrow compass by the existence of a form of orders agreed between the Independent Children’s Lawyer and the father.  Senior Counsel for the father informed the Court that through discussions he and the Independent Children’s Lawyer had agreed upon a proposed form of orders to be made on an interim basis between 14 August 2019 and the final hearing dates commencing 27 November 2019.  The proposed orders were set out in the document entitled “Short Minute of Order Sought”, which I have marked “Exhibit ICL 1” on the father’s Application for Review. Those orders were as follows:

    1. That the hearing of the applications for final orders on 27 and 28 November 2019 be confirmed.

    2. That each of the mother and father shall file and service by 4:00pm on 28 October 2019 an Amended Initiating Applications and/or Amended Response to Initiating Application in which they set put [sic] with precision the final parenting orders sought.

    3. That each of the mother and father shall file and serve by 4:00pm on 28 October 2019 any further affidavits that they intend to rely on at the final hearing.

    4. That Orders 2.1 and Order 2.2 of the interim Orders made on 27 February 2019 be discharged.

    5. That until further order, the father spend time with the child each alternate weekend from 9:00am Saturday until 4:00pm Sunday, with changeover of the child to occur at Town A Airport.

    6. That for the purposes of order 5 herein the father be at liberty to travel with the child by air either to the Gold Coast or Sydney and that all the associated costs of the [sic] that travel be paid for by the father.

    7. That the father provide to the mother 48 hours prior to the time in Order 5 herein. [sic] Occurring, details of all flights for the child and that the mother will do all things necessary to ensure changeover occur as reasonably close to the time provided for in Order 5 herein so as to allow the child to spend the maximum time with the father.

    8. That the parents communicate all issues about the welfare of the child by the [sic] text message and the parents shall each contact the other immediately should there are [sic] any urgent medical issues in relation to the child.

    9. That within 48 hours of the date of these Orders, the parents will advise the other of their current residential address and mobile telephone numbers and any changes thereto within 48 hours of any change occurring.

    10. That the mother shall enrol in the program known as “Parenting After Separation” or such other similar program as recommended by E Group or F Group completion and the mother shall enrol in the first available placement on offer.

    11. That each party be restrained from saying anything to or in the presence of X or permitting any other person to say anything to or in the presence of X which is in anyway derogatory of the other parent or say anything in relation to the current proceedings.  

1. The proposed minute of orders also made the following notation:

   A. That the time arrangement set out in Order 5 are contended by the father not be [sic] in the best interest of X but are all that can be agreed in the circumstances that the mother has unilaterally relocated X’ primary residence from Sydney to Town B.

2. Apart from procedural orders confirming the hearing dates and making trial directions, the orders sought a variation of the interim parenting arrangements ordered on 27 February 2019, to include overnight time to be spent by the child with the father each alternate weekend from 9:00am Saturday until 4:00pm Sunday with changeover to occur at Town A airport.  The proposed orders also provided that the father be at liberty to travel with the child by air either to the Gold Coast or Sydney, with the costs to be paid for by him, when the child spending time with him.

3. The narrow question became whether or not overnight time as proposed in orders 5 and 6 of Exhibit ICL 1 should commence prior to the final hearing, in place of orders for overnight time made by Senior Registrar Campbell, which orders were due to commence on 16 August 2019.

4. The mother vociferously resisted any such orders.  She submitted that the child had spent the vast majority of his time with her, she knew the child well and in her view he was not ready for overnight time.  She contended from the bar table that the father had not demonstrated a satisfactory attitude towards parenting, in that he had played no part in the life of the child for about 18 months after the child’s birth, and he had not availed himself of all the opportunities to spend time with the child as permitted pursuant to the orders of 27 February 2019.  She said that the child was not ready for overnight time, that he was clingy and constantly unsettled on those occasions when the child had spent time with the father during the day.  She said that her parents were also of the view child was not ready for overnight time.

5. The Independent Children’s Lawyer and the father both submitted that the orders were appropriate.  The Independent Children’s Lawyer referred to the report of Ms D in her recommendations and pointed out there was no evidence to support a conclusion that the child could not cope with the modest overnight time proposed in the orders.  At paragraph 45 of her report, for example, Ms D noted that both parents described the child as being healthy, “confident, very intelligent and generally happy” with advanced verbal skills.

6. The mother’s resistance to the orders is difficult to understand.  The Application for Review was conducted as an interim hearing so that the Court had the benefit of only Affidavits and submissions from the parties.  In light of the mother’s failure to avail herself of an opportunity to put on any evidence in relation to the Application for Review, it is not possible to make any findings consistent with her contentions that the father had not availed himself of opportunities to spend time with the child, that the child was not ready for overnight time or that he was clingy and unsettled after spending time with the father.

7. But I do not rest my decision solely, or even primarily, upon an inability to make such factual findings.  It must be emphasised that the child is now four years old.  As recorded earlier in these reasons, on 27 February 2019 the mother herself proposed that the child should commence overnight time with the father upon turning four years of age.  The orders of Senior Registrar Campbell also made provision for the child to commence spending overnight time with the father each second weekend from 10:00am Saturday to 6:00pm Sunday, once he turned 4. 

8. Thus, as of 27 February 2019, the parties and the Court held the view the child should commence overnight time with the father upon turning 4.

9. The reliability of the father as a parent was adverted by Ms D.  So was the possibility of the mother being too restrictive. At paragraph 62 Ms D states: “[X’s] relationship with his father appears to be progressing well.  Provided Mr [Papp] is reliable and predictable in his contact with him and Ms [Myers] does not a restrictive approach to [X] spending time and communicating with his father, it should continue to consolidate and deepen”.

10. I am satisfied that between 16 August 2019 and the final hearing the orders proposed in Exhibit ICL1 will give the father an opportunity to demonstrate reliability as a parent, and give the mother an opportunity to demonstrate she can be appropriately non-restrictive in her approach to the child spending time with the father.  It will also allow the child’s relationship with his father to consolidate.

11. The orders ultimately sought in Exhibit ICL 1 represent a modest change to the orders already made by Senior Registrar Campbell.  It is ironic that it is the father, and not the mother, who has applied to Review Senior Registrar Campbell’s decision, but if the resistance of the mother to the proposed orders was successful, the orders already made by Senior Registrar Campbell would continue to apply and nonetheless the child would commence from 16 August 2019 to spend overnight time with the father each second weekend from 10:00am Saturday to 6:00pm Sunday.

12. Consequently it can be seen that orders 5 and 6 proposed in Exhibit ICL 1 simply seek to alter the existing orders by changing the commencement time on Saturday to 9:00am and the place of changeover to Town A airport.  The purpose of those changes were simply to make it more practical for the father to start and finish his time with the child in light of the fact that he would need to fly to Town A airport in order for this time to commence.

13. I note here that the mother submitted that she had no car and could therefore not comply with an order requiring her to deliver the child to Town A airport, which is approximately a 90 minute drive from Town B.  However, apart from asserting this from the bar table the mother provided no evidence even about that simple question, and accordingly I do not find myself able to act upon her submission in that regard.  I note also that the mother submitted that the commencement time on Saturday should remain at 10:00am because the child often does not wake up early enough to allow him to be made ready for delivery at 9:00am at Town A airport.  There may be some force in this submission, but again apart from the mother’s assertion there is no other basis upon which it could be sustained.

14. I am satisfied that the father’s application to review the orders of Senior Registrar Campbell should be allowed to the limited extent proposed in paragraphs 5 and 6 of Exhibit ICL 1. 

15. I am also satisfied that proposed orders 7 to 11 should be made, particularly an order that the mother enrol in a program such as Parenting after separation recommended by E Group.  Her approach to the litigation and her strong, but somewhat baffling, opposition to the orders proposed in paragraphs 5 and 6 of Exhibit ICL 1, together with Ms D’s caution that the mother not be too restrictive, suggest she may need assistance to achieve a more healthy perspective on her responsibility to promote a meaningful and strong relationship between the child and his father.  I note that the father has already completed such a course.

16. I note finally that on 16 August 2019 the mother sent a lengthy email to my chambers.  It was not apparently sent to the other parties.  I have not had any regard to its content.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 16 August 2019.

Associate: 

Date:  16 August 2019