Porter and Porter

[2016] FCCA 3402

FEDERAL CIRCUIT COURT OF AUSTRALIA

PORTER & PORTER [2016] FCCA 3402

Catchwords:
FAMILY LAW – Parenting orders – family report – consideration of s.60CC of the Family Law Act 1975 (Cth) – children live with the Respondent mother – children spend time with the Applicant father – children permitted to relocate to Melbourne with their mother.

Legislation:

Family Law Act 1975, ss.60CC(3), 60CC(2)

Applicant: MR PORTER

Respondent: MS PORTER

File Number: PAC 530 of 2015

Judgment of: Judge Hartnett

Hearing date: 30 November 2016

Delivered at: Melbourne

Delivered on: 30 November 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms McCorriston

Solicitors for the Respondent: Sascha McCorriston Legal

ORDERS

1. All previous orders are hereby discharged.

THE COURT ORDERS BY CONSENT:

1. The mother and father each have equal shared parental responsibility of the children of the marriage X born (omitted) 2006 and Y born (omitted) 2006 (‘the children’).

THE COURT ORDERS:

1. The children live with the mother. 

THE COURT ORDERS BY CONSENT:

1. The children spend time and communicate with the father as follows:-

   (a)on the fourth weekend of each school term from 1 pm Friday until 4 pm Monday;

   (b)for one half of all Victorian school term holidays in terms 1 and 3 of such term holidays together with one half of the Christmas/January school holidays. The term 1 and 3 holiday periods are to commence on the first Saturday of each holiday at 1.00pm and conclude on the following Saturday of each holiday at 1.00pm. The Christmas/January school term holidays are to commence at 1.00pm on the day immediately following the last day of school and conclude at the mid-point of the holiday in the 2017/2018 holidays and each alternate year thereafter. The father to return the children to the mother’s care 48 hours prior to the commencement of the school term;

   (c)for 10 days in the term 2 school holiday commencing on the first Saturday of the holiday at 1 pm and concluding on the Monday week at 4 pm;

   (d)by Skype and telephone each Tuesday, Thursday and Sunday at 6 pm; and

   (e)for the purpose of all changeovers, the father shall collect the children from the mother at (omitted) at commencement of time spent with and return the children to the mother at McDonald's (omitted) (carpark) at the conclusion of all time spent with.

2. The father shall not consume alcohol to excess during those times that the children are in his care.

3. That in the event of childhood illness or emergency the parent with whom the child or children are with, do contact the other parent forthwith to inform them.

4. That the parties have shared responsibility for decisions about the schooling of the children and have the shared responsibility for liaising with schooling authorities, school teachers and receiving school reports.

5. That otherwise all extant applications are dismissed and the matter removed from the list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

PAC 530 of 2015

MR PORTER

Applicant

And

MS PORTER

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed by the father on 9 February 2015. In that initiating application, the father sought orders that the children of the parties' marriage reside with him, spend time with their mother as agreed and further that their mother be restrained from removing the children from the (omitted) region.  The wife in her response filed 6 March 2015 sought that the children live with her and that she and the children be permitted to permanently relocate and change their residence from the (omitted) region to the geographical area of Melbourne. The mother thereafter set out a proposal for the children to spend time with their father and sought other general in nature parenting orders.  At the time of the filing of the initiating application and in accordance with the Federal Circuit Court Rules 2001 (Cth), the father filed an affidavit of evidence sworn by him on 3 February 2015. The mother likewise filed an affidavit of her evidence in the proceedings sworn 4 March 2015. Unfortunately, despite both parties being ordered to file trial affidavits neither did so.

2. The failure to file trial affidavits was made more unfortunate by the fact that the proceedings were commenced in February 2015 and not heard on a final basis until 30 November 2016.  No doubt, much changed in the lives of the parties and their children in that intervening period. To that end, the Court granted leave to each of the parties to provide further evidence-in-chief in the witness box. The Court was also assisted by the evidence as contained in the family report dated 1 February 2016, which had been prepared by Ms S, Family Consultant. That family report was introduced into evidence. Ms S had interviewed the parents and their children in January 2016 and made observations of each of the mother and father interacting with the children.

3. The children of the parties' relationship are X born (omitted) 2006, who is now 10 years of age, soon to turn 11 years, and Y born on (omitted) 2007, who is nine years of age. 

4. The mother was represented by her solicitor in these proceedings and the father was a litigant in person.  At the commencement of the proceedings, the parties each set out the orders that they now currently seek. The father sought that the children live with him in (omitted). The mother sought that the children live with her in Melbourne. The mother put to the Court that she would relocate to Melbourne without the children, albeit that was not a position that the father accepted the mother would ultimately adopt.

5. At the commencement of the hearing, the Court discussed with each of the parties possible arrangements for time spent with the other parent, given that the parties were now going to reside some, in excess of, five hours driving distance apart. The parties agreed on the time spent with regime proposed by the Court and agreed on the balance of parenting orders, which included that each of the parties have equal shared parental responsibility. On the evidence before the Court, the presumption set out in s61DA of the Family Law Act 1975 (Cth) was not rebutted.

6. Both parties also agreed as a preliminary matter that it was not possible for the children to spend equal time with each of their parents because it was not geographically practicable. 

7. The issue in these proceedings was thus with which parent the children would live.  It was conceded by the father that since the birth of the children the mother had been their primary care giver. 

History

1. The parties met in 2003 and became engaged on (omitted) 2005.  At that time, the mother was living in Melbourne and the applicant father was residing in (omitted) in NSW. On (omitted) 2005, the parties married and following a honeymoon in (omitted) commenced to reside in (omitted). They separated on 17 December 2014 after a marriage of some nine years and four months approximately. In that period of cohabitation in (omitted), the wife became increasingly unhappy both in the marriage and in residing in the (omitted) district. She wished to move back to her family in Melbourne.  Her family in Melbourne now comprise her 81 year old mother who lives in (omitted); three sisters, two of whom she has a close relationship with; and her sisters' adult children, her cousins and her cousins' children, the latter being of approximate age to the parties' two children. The Applicant father's extended family resides in Brisbane, Western Australia, (omitted) and (omitted).  In particular, his parents reside in (omitted).  The paternal grandmother has assisted the father in the care of the children since separation and during those periods that the children have spent time with their father.

2. The children currently attend (omitted) Primary School in (omitted).  X is in year 5 and Y is in year 3. X is engaged in the leadership program as are the other members of his class as he prepares for entry into his final year at primary school. His father argued before the Court that X should be allowed to complete his primary school years at (omitted) Primary School in (omitted) prior to any relocation if the Court was minded to allow for the children to reside in the Melbourne area.

3. The mother proposed that the children commence their school enrolment in the year 2017 in (omitted) Primary School in (omitted). The children have earlier attended at that school.  They commenced in January 2015 and remained there until such time as the mother was required pursuant to the issue of a recovery order to return the children to their residence in (omitted). Upon that return to (omitted), the children were re-enrolled in (omitted) Primary School.

4. The father proposes that the children reside with him in (omitted) in what was the former matrimonial home. This is a home registered in the father's name and in respect of which he pays a monthly $200 approximately mortgage repayment. The children are familiar with this home, having resided in it during the course of the parties' marriage and for a time thereafter upon the mother and children's return to (omitted) (following their four-month period of residence in Melbourne in 2015).  The mother proposes, by contrast that the children reside with her in her mother's home in (omitted) which is also a home with which they are familiar.

5. The children resided in (omitted) during their earlier sojourn in Melbourne. That home has three bedrooms and the mother proposes that she occupy one and that the children share a bedroom for the time being.  The maternal grandmother is 81 years of age and in poor health. She requires to be cared for by her daughter and it is her daughter's proposal that she will take up that role in the new year and whilst she is residing with her mother.  Ultimately, the mother proposes that the children would move into other rental accommodation when she is in a position to afford same. That rental accommodation will provide each of the children with their own bedrooms.

6. The mother's ability to obtain rental accommodation in Melbourne will be dependent upon her ability to obtain employment and her general financial position. Save for the father's ongoing payment of the mortgage over the former matrimonial home when the wife and children resided in it post-separation for a period of some 13 weeks, and his own personal expenditure upon the children when they are in his care, the father has made no provision of child support payments to the mother. 

7. The father is the (occupation omitted) of the (employer omitted) in (omitted), which is owned by his sister. Despite that position, and the hours of work performed by him, which in the past have been extensive and included weekend shifts and evening shifts, his receipt of income he claims is approximately $25,000 per annum. It is not likely that the mother will ever receive any form of regular and appropriate in quantum child support payments for the children from the father.  Her ability to support the children will be via Centrelink payments and with the assistance of her mother. The mother will seek gainful employment during  school hours.

8. The mother has managed to obtain current employment in (omitted) being two hours, five days a week as a (occupation omitted) at the (employer omitted).  She aspires to some other form of employment which is more remunerative and anticipates to be able to obtain same in Melbourne.  She notes that employment opportunities are exceedingly limited for her in the country town of (omitted). 

9. The father does not really take issue with the fact that since their birth the mother has been the primary carer of the children and that she continues to be so.  Following the making of the recovery order, the mother returned to (omitted) with the children and has continued to reside there. She has sought to return to Melbourne and the residence of her mother.  She has waited the lengthy period of time it has taken for her application to relocate the residence of the children to be heard.  Thus throughout 2015 and 2016, the children have continued their residence in (omitted).

10. The mother has felt compelled to remain in (omitted) as she refused to  relinquish the care of the children.  The mother has continued to be unhappy.  She has now reached the point where she puts before the Court that she will relocate to Melbourne regardless and asks the Court to allow the children to relocate with her. 

11. As part also of the history between these parties the mother obtained an intervention order against the father on 23 February 2015 at the Magistrates Court at Ringwood.  Prior to that time, she had obtained an ex parte order. The order made on 23 February 2015 was a final order and it expired at midnight on 22 February 2016. The mother has not sought any further intervention order since that time. 

12. The intervention order was made with the consent of the father and without admission of the allegations in the complaint.  The father was present at the hearing and agreed to the order being made.  The order was made as a consequence of the mother's allegation of domestic violence which occurred during the course of the marriage and which is denied by the father. The mother failed to put before the Court any evidence particularising those allegations, save the making of the intervention order itself and text messages which passed between the parties around the time of the mother's departure with the children to Melbourne with her intention being to remain in Melbourne.

13. Whilst the mother says the father was aware of her proposed move to Melbourne, it is clear on the evidence that she did not consult him as to removing the children from the (omitted) environs and that instead she indicated to him that she was taking the children to Melbourne for a holiday.  The mother notified the father by text message that she was not returning with the children to (omitted).  This obviously was a very difficult time for the father and a time at which the communication between the parties was strained. The father became abusive in some of his text messages.

14. It was primarily as a result of the parties' text exchanges and dialogue at the time of the mother's removal of the children from (omitted) without the father's knowledge or consent, and the mother’s determination to end the marriage on the basis, as she claimed it, for the safety of the parties' children that the IVO was obtained.

15. In the text exchange between the parties, the mother indicated to the father that he was not a good father and not a good husband.  She said relevantly:

    You're not a good father, you're not a good husband.  We are not coming back to (omitted).  You and your mother have made it very clear to me that we are not wanted and we are not going to be taken care of by you and your family.  The kids are scared of you when you are drunk and that is no way to raise the kids. You are the vindictive and mean one. Taking the kids' money out of the account, leaving me without money for the kids.  It was the final straw when your mother told my son that his mother is not a good person and threatened that the house is not mine or my kids' and that the marriage is over. 

    … you all have already talked about me not coming back and you having the kids.  I will not continue to be undermined by you or any member of your family whilst I'm taking care of my children while “your” job is to ignore them.  What kind of man lets his kids sit in a car with no air con with the high temps that we lived in? Maybe if you stopped drinking and smoking we would be able to afford to put air con.  By the way, everyone in (omitted) knows you're an alcoholic and you're doing wrong thing by your family.

16. By way of response the husband replied:

    Ms Porter, you stupid, petty minded, village idiot. All your so-called friends have been telling me how lazy you have become.  I knew before Melbourne Cup Day you were leaving. Ms L had told everyone in Melbourne and they told me. As for the money, get off your backside and get a job instead of being a parasitic sponge.  You were too lazy to even clean the house. If you think I didn't know you weren't coming back, that's why I took MY money and wouldn't let YOU steal the car.

17. The above is just a flavour of the text messages which passed between the parties at that very volatile time.  Since that time, there has been not a repeat of that level of communication and abuse. Firstly, because of the making of the intervention order and its duration of 12 months and secondly because matters dissipated between the parties and they were better able to communicate in their children interests as time passed. 

18. The time that has passed, of course, is time the mother has spent residing in (omitted) with the children.  In that time, the father has had the children in his care as agreed between the parties and pursuant to order of the Court. The orders of the Court (being those made 4 March 2015) have provided that the children spend time with their father each alternate weekend from the conclusion of school until 5.00pm Sunday together with half the holidays and other special occasion days. There has been generally no issue between the parties in the performance of those orders save for the below.

19. The mother tendered in evidence a New South Wales police force COPS sheet from an event of 30 June 2015. At this time, the child Y, was in the care of her grandmother at her grandmother's home.  It was school holidays and the children Y and X, were then being cared for by their father who was working in the (employer omitted).  On the occasions that he was so employed, he did (and continues to) delegate the childcare duties to his mother.

20. During the afternoon of 30 June 2015, Y called her mother to say that she was at her grandmother's home by herself and that she was feeling sick. The mother contacted police and passed on her concerns that Y was at her grandmother's home unattended. The mother did not wish to breach any Court orders and hence she telephoned the police. The police attended at the grandparents' premises, knocked on the door, which was opened by Y.  Y told police that there was no one else at home and that her grandmother had taken her grandfather to the doctors. Y told police she was feeling sick. 

21. Y was taken by the police from her grandparents' home and placed in the care of her mother. She became sick and vomited on the floor of her mother's house whilst the police were in attendance. The police then attended at the (employer omitted) in (omitted) to speak to the father.  However, he was not then present at the location. The police then returned to the grandparents' home and saw a vehicle pulling into the driveway, the occupants being the paternal grandmother and the father.  Whilst the grandmother indicated to the police that the child was on her own, but only for a very short period of time, the father told police that his father was, in fact, at the premises.

22. In the police event report, the police indicated their belief that:

    …the father's indication that the child, Y's, grandfather was inside the premises whilst police were there was an attempt by the father to diffuse the obvious lack of parental supervision that had occurred in this incident.

23. The father denies he drinks to excess. His evidence is however that he did drink during the marriage, but that at that time it was not a problem for the wife and only became a problem for her once the parties separated. I do not accept that evidence. Clearly the father's consumption of alcohol has been an ongoing problem for the wife throughout their relationship. In May 2015, the husband lost his licence for drink driving. His period of disqualification was six month.  He had an interlock device fitted to his motor vehicle.  His reading was 0.165.

1. In these circumstances it is appropriate some order be made such that the husband does not drink alcohol to excess whilst the children are in his care. The evidence is such that it appeared the husband minimised his consumption of alcohol.

2. The parties have behavioural issues with the child X. The mother's evidence is that X does not like change. She has made an appointment for an assessment of him at the (omitted) Hospital and is still awaiting that appointment. The mother's evidence is that there are no specialists available to her in the (omitted) area who can readily deal with the behavioural problems that X is exhibiting.  Her evidence is further that the father is in denial about such behaviours. The father agrees that the child does not like change, but has not pursued the issue of a need for the child, X, to attend upon a medical specialist. Hopefully the appointment that has been arranged will satisfy each of the parties as to their child's physical and mental health. 

3. The husband chose not to cross-examine Ms S. Ms S, whilst acknowledging the distress to the father which her recommendation would cause, recommended that the children be allowed to relocate to Melbourne with their mother. She set out in her report from page 31 onward those additional considerations, which the Court is required to consider in section 60CC(3) of the Family Law Act1975 (Cth).

4. It is clear in this case that the children will benefit from having a meaningful relationship with each of their parents as set out in section 60CC(2). The Court is satisfied that there is no current need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The Court has likewise considered those matters as set out in section 60CC(3) of the Act and has been assisted in that regard by the observations and recommendations of the family consultant, who has provided her expert report in evidence before the Court.

5. In respect of any views expressed by the children themselves, X expressed a view to remain in (omitted). He was reluctant to move, primarily because he was used to it. The report writer noticed that X did not mention spending time with his father as a reason for him wanting to stay in (omitted). The child Y expressed a view to live in Melbourne. She did so to the report writer, claiming there was more to do in Melbourne and because her best friend, O, was there. She did not say she would miss her father on her departure from (omitted) but she did say she would miss her friends.

6. Both children when observed by Ms S interacted happily with their parents, with Y indicating a stronger positive attachment with her mother. In paragraph 77.1 of her report Ms S noted as follows:

   If they relocate to Melbourne, both children will have to adjust to seeing their father and paternal grandparents less often and will no doubt miss them.  Given their ages, the children should be able to cope with this, particularly if they have regular telephone or Skype contact with their father and as regular visits as practicable, given the distance.

7. The distance does present some barrier to the children seeing their father, certainly on a fortnightly basis as currently occurs.  They can continue to see him for one half of the holiday periods and both parties will share in the cost of transporting the children back and forth between their respective homes by the shared driving of the children over that distance.

8. The mother is and has been always available to care for the children. The father is much less available to them and he relies significantly on his mother's assistance. He also, as part of his care regime for the children, takes them to the (employer omitted) for the periods when he is working.

9. Whilst the children have a good relationship with each of their parents and an affectionate one, the Court finds that the mother's capacity to care for the children in her provision of those things which go to satisfying their emotional and intellectual needs exceeds that of the father; that is because she has been engaged in the satisfaction of those needs to a far greater extent than he has during the course of their lives.  Although she decided to separate from the children's father, she did indicate a willingness for the father to continue to be in touch with the children and for the children to spend time with him. She acknowledges his important role in their lives.

10. The father’s suggestion that the children could now move their residence to reside with him, given his work commitments, and given their history of care was at odds with the promotion of the children's best interests. The Court is satisfied that the children will be able to continue to develop a meaningful relationship with their father as supported by their mother and whilst living in Melbourne.

11. I accept the evidence of the family consultant that to her credit the wife has attempted to make the best of life in (omitted) but there is no doubt that she would be happier if she was allowed to relocate to Melbourne and that, in turn, will enhance her parenting.  Her family supports her in Melbourne and her chances of employment will be enhanced.  Indeed, she had indicated in January 2016 to the report writer that she would make the best of life if she had to remain in (omitted) after the conclusion of this hearing, but at the commencement of this hearing in November 2016, she had moved her position such that she would relocate to Melbourne regardless.

12. The mother’s application shall be acceded to.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  23 December 2016