Parsons and Parsons

[2007] FamCA 1311

FAMILY COURT OF AUSTRALIA

PARSONS & PARSONS [2007] FamCA 1311

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates with

Family Law Act 1975 (Cth)

APPLICANT: Mr Parsons

RESPONDENT: Mrs Parsons

FILE NUMBER: NCC 1442 of 2007

DATE DELIVERED: 5 June 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: JR Loughnan

HEARING DATE: 5 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Adams Leyland Solicitors

Orders

1. Leave is granted to inspect documents produced on subpoena by G Medical Centre.

2. Until further order, orders are made in terms of paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Response to an Application in a Case filed on behalf of the mother on 5 June 2007, as amended and set out hereunder:

   “2.That the parents have equal shared parental responsibility for the children [J] born […] April 1999 and [R] born […] March 2003 (“the children”).

   3.        That the children live with the wife.

   4.        That the children spend time with the husband:

   (a)Each alternate weekend from 4.00pm Friday until 4.00pm Sunday in the Albury/Wodonga area;

   (b)During the term school holiday periods from 4.00pm on the first Saturday after school concludes until 4.00pm on the Saturday immediately prior to school recommencing;

   (c)During the Christmas School holiday period from 4.00pm on the 3^rd Saturday after school concludes 4.00pm on the Saturday before the commencement of the new school year;

   5.That in order to facilitate the children spending time with the husband as set out in order 4 above, the wife shall deliver the children to the husband at the commencement of such time and the husband shall return the children to the wife at that place at the conclusion of such time.

   6.That the children communicate with the husband by telephone at all reasonable time and not less than between the hours of 6.00pm and 7.00pm each Monday, Wednesday and during those times on Saturday when the children are not spending time with him.

   7.That the communication provided for in order 6 above be implemented by the husband telephoning mobile telephone number … and the wife making the children available to speak to the husband.

   8.That the wife shall authorise any school that the children may attend to provide to the husband copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the husband of any emergency, remedial or correctional treatment required by the children as soon as is practicable, and that each parent is entitled to attend school events, parent/teacher appointments and the like.

   9.That the wife shall authorise any treating medical practitioner, hospital or medical practice that the children shall attend from time to time to provide to the husband any information regarding the children.

   10.That the husband and wife keep each other informed of any sickness or illness of the children.

   11.That the Wife and Husband shall keep each other informed of contact addresses and telephone numbers at all times.

   12.That the parties shall notify each other within 7 days of a change of address and within 48 hours of a change of telephone number.”

3. The father’s time with the children be subject to him providing at least 7 days prior written notice of his intention to spend time with the children in the Albury/Wodonga area whether in accordance with paragraph 4(a) or in accordance with some arrangement made between the parties.

4. The Court notes it is the intention of the Court that the father should have the capacity to spend time with the children provided he gives that notice for periods of up to 7 days at a time in the Albury/Wodonga area.

5. Leave to the father to attend himself and/or through his solicitor at any Court event other than a final hearing by telephone or if practicable by video link.

6. The venue of these proceedings be changed to the Melbourne Registry of this Court for hearing in the Albury circuit on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Parsons & Parsons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1442 of 2007

MR PARSONS  

Applicant

And

MRS PARSONS  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, J and R who are 8 and 4 years of age.  The father and mother are 34 and 36.  They started to live together in 1995, were married, one of them says, in September 2001 the other one says in 2000.  They separated in April 2007.

2. The background to the proceedings is the mother having a long history of chronic pain associated with damage to her back caused during her service in the armed forces. She has subsequently had a number of procedures, laminectomy and other procedures, to try and manage that and then has had some hospitalisation and treatment to try and deal with pain management and to try and wean her from one form of pain relief to another. Of recent times an effort has been made to try and keep her from the opiate family of drugs, morphine and other drugs of that nature.

3. The parties have substantially lived in the Newcastle area, although they have moved around further north than here. 

4. The agreed facts are that the parties planned to move to the Albury/Wodonga area. It is agreed that there was a breakdown in their relationship in the course of that move and each of the parties says that the other person was the catalyst for the breakdown.

5. The father is concerned because of the timing, that he was tricked into an agreement to relocate the children to that area and that the wife engineered a breakdown once those arrangements were made. The wife has the opposite view.  She says that there was a commitment made to the move which was ultimately so that the parties and the children would have the benefit of being close to her family.  Sadly, her father has a terminal illness and she wanted to provide some assistance in that regard. She says that they looked for accommodation, ultimately secured accommodation and signed a lease and, in fact, it was the father who engineered a separation.  She says that there was a violent incident, which was the point at which she decided that the separation was necessary. 

6. It was said in the course of submissions on behalf of the mother that there was something of a history of violence, although it was said to be at a low level.  I do not think that is right.  The mother says that in March 2007:

   "We argued outside. [the husband] picked up a whipper snipper and tried to hit me in the face.  [the child J] was present.  I could not believe that [the husband] had tried to hurt me."

7. And she goes on to say that was the point of separation. It came as something of a shock to her that he had attempted to hurt her on that occasion. That does not sit terribly comfortably with a history of violence. 

8. The circumstances cause an obvious problem.  The wife's case is that she is moving to the Albury/Wodonga area and she asks for an order that the children live with her most of the time. In the event that the children cannot live with her, she intends to remain in the Albury/Wodonga area and the children will visit her. 

9. The father wants the children to come back to the Newcastle area.  He wants the children to live with him. I do not think he would mind if the mother moved back, but she is not going to do that.  His proposals are not really set out in detail and to be fair to him, as I said during the course or submissions, I do not know that he had much notice that the mother's attitude was going to be - she was going to stay there whatever happened.

10. I am not able to make a decision about who is right about the breakdown of the relationship.  I am not allowed to prefer one party's evidence over another.  The only way I can make a finding of fact on a dispute issue of fact is if there is some completely independent evidence, and there is nothing here, as is often the case in interim proceedings.

11. So, I am left really with a decision that will remain in force until the matter comes on for a final hearing.  There is a complexity to that because, quite rightly, the mother says if the children are living with her in the Albury/Wodonga area then the sensible place for these proceedings would be that they be managed out of the Albury circuit, whether that is by the Family Court or the Magistrates Court.  That makes a difference to the case and I there is no about the availability of either Court there. The reasons for the change of venue in those circumstances are that the counsellors and any independent child lawyer would be based in that area. 

12. So the choices are, that the children live with the father in Newcastle or with the mother in the Albury/Wodonga area. The father says that his work arrangements are such that he is always going to be available to the children. They would see the mother when the parties can afford to make arrangements to get them to and from the Albury/Wodonga area. That is going to involve expense and the parties do not have any significant funds. The mother receives a part-pension associated with her invalidity from the armed forces and the father is working part-time, I understand, as a contractor. So money is an issue. 

13. It is notoriously dangerous for the children to travel up and down the Hume Highway in a motor vehicle.  That will be hard to avoid. The only options are trains, planes or automobiles. It is just an unfortunate fact that for these children their parents, for the time being, have decided to live a long way apart and I cannot fix that. 

14. Of all of the powers I have, I cannot order the father to live in the Albury/Wodonga area or the mother to live in the Newcastle area or anywhere else.  The only power I have is to cause the parties to cause the children to live in a certain place. Therefore we are stuck with the parties' arrangements. 

15. It follows from the mother's approach to the case, that her capacity to care for the children is not uncompromised.  In other words, she needs support. That is not anything to apologise for.  That is just the way it is. 

16. The father give evidence about a history of illegal drug use, marijuana and so on, and I think the gist of it is that although she may well have used marijuana prior to the injury, that she continued to some extent afterwards by way of pain relief.  There is some evidence in relation to the mother's medical condition.  A doctor has given her a relatively clean bill of health, although his English is not all that flash, to the effect that she is not compromised.  It is his view, this is Professor L who works in the Newcastle area, who says that she has physical restrictions, travelling is difficult, she takes some medication and the medications do not have an adverse effect on her ability to function on a daily basis.  I think probably that is a little bit more bullish than the circumstances warrant given the mother's case which is that she does need some assistance.

17. The parties' arrangements have had generally the father undertaking paid employment and the mother being, in effect, a full time parent.  So, the father has had some confidence, leading right up until the move to the Albury/Wodonga area, that the mother had some capacity to care for the children.  At the end of the day the parties' arrangement was that the mother was more focused on that role. That was forced on the parties because of the mother's injury, but it was the fact.  If the father is right, then the current circumstances are very unfair to him.  It is very unfair to him that the move happened and if there is any sense in which it happened with any intention to separate at the point of the move, then that is particularly unfair. It is very unfair, of course, that he and his members of his family travelled down to try and see the children after the move and he talks about the great unhappiness caused to his mother by those arrangements.

18. On balance I think the best course, other than the parties living in the same town, is that the children live with the mother for the time being. Of the two parents, the one who is best able to travel is the father. Therefore it is more likely that he would have more time with the children if they live with the mother, than them having time with the mother if they live with him. I accept that it is far from ideal.

19. That means one thing, though.  If the children are going to live with the mother then all of the responsibility for causing the children to spend meaningful time with the father rests with her.  All of the responsibility for making sure that a 4 year old speaks to the father rests with her. If she cannot deliver on that, then that is a matter that the Trial Judge will know about and take into account when it comes to a final hearing.

20. One of the things the Court is required to take into account is the capacity of the parents to foster a proper relationship between the children and the other parent and we will have a short period now when we will see how well the mother manages that exercise. It is difficult to have a 4 year old speak on a phone, but we do not want any repeat of any incidents where the father travels down there and is not able to see the children and gets back in his car and drives back home. We do not want any repeat of problems with telephone contact. I will make the orders that the mother proposes but in addition, of course, if the father is in the area then he can have what time he would like with the children, provided he gives a couple of weeks notice. 

21. It is not these two girls' fault that their parents have decided to live hundreds of kilometres apart.  Life is complicated enough for them.  They will feel that they have lost one of their parents, so it is really a case of putting every effort to try and normalise the arrangements and make a meaningful relationship with the father. 

22. Overall the Court is required to promote the best interests of the children.  How you work that out is determined by the legislation.  The main considerations are the children having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm, being exposed to abuse or neglect or violence. 

23. There are allegations here.  The mother's evidence suggests that there no pattern of abuse. Just in case the parties need reminding, it is devastatingly harmful to a child to be exposed to abuse or violence.  That means seeing someone they love threatened or abused.  They should live in a world where all they see is loving relatives. They should not have to worry about, dad being angry with mum or mum being angry with dad or whatever.

24. And then, once those matters are addressed I am to take into account a whole lot of factors, some of which have been mentioned today. The children are a bit young for their wishes to be relevant. They probably want their parents to live together again. As to the nature of the relationship between parents and children, the likely effect of change of circumstances, practical difficulty and expense of the arrangements, and they are all important factors here, the capacity of each parent, a live issue here.

25. The question about decision making drives all the determination of living arrangements now.  If parties are to have equal shared responsibility for decision making, and there is nothing suggested here in the documents that that will not be the case, then the Court is required to consider the children living equal time with each of the parents, and if that is not ordered then it is to consider substantial and significant time.  The worry for the parties is that neither of those things may be practicable over the distance involved here.  So, that might have a bearing on what the Trial Judge does in the final hearing.

26. I cannot tell the parties what the outcome should be.  It is not my job to second guess that.  Obviously, and it is a matter for the father, it would be easier for everybody if he lived close to the mother, because we cannot order the mother to change her address. But again, that is a matter that he would have to make a decision about.

27. On the plus side we have two loving parents who want the best for the children.  There is no evidence of a significant history of harm. There is a loving extended family on both sides who want the best for the children. Many children do not have these advantages. We need to get through to the hearing which should not be too long away, but that is going to be out of the Albury circuit. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date:  9 November 2007