Poulson and Poulson

[2014] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

POULSON & POULSON [2014] FCCA 2601

Catchwords:
FAMILY LAW – Interim parenting – whether relocation of children’s residence from New South Wales to Victoria is to be permitted pending final hearing.

Legislation:

Family Law Act 1975, ss.11F, 60B, 60CC

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230

Applicant: MR POULSON

Respondent: MS POULSON

File Number: PAC 2086 of 2013

Judgment of: Judge Dunkley

Hearing date: 30 October 2014

Date of Last Submission: 30 October 2014

Delivered at: Parramatta

Delivered on: 27 November 2014

REPRESENTATION

Applicant appeared in person

Respondent appeared in person

ORDERS PENDING FURTHER ORDER

1. By consent the parties shall have equal shared parental responsibility for X born (omitted) 2000 and Y born (omitted) 2004.

2. The children are to live with the mother from the date hereof until 12 noon on 24 December 2014.

3. The children are to live with the father from 12 noon on 24 December 2014 until at least 25 January 2015.

4. If the mother returns to live in or about (omitted), New South Wales and has  obtained housing in that area by 25 January 2015 then from 5pm on 25 January 2015 the children shall live with her and spend time with the father from after school Thursday (or 5pm on a non-school Thursday) to before school Wednesday (or 9am on a non-school Wednesday) in each alternate week commencing 5 February 2015.

5. If the mother has not returned to live in or about (omitted), New South Wales by 25 January 2015 the children shall live with the father and spend time with the mother:

   (a)From 6pm Friday until 6pm Sunday on the third and sixth weekend of each New South Wales school term;

   (b)From 9am on the first Monday until 6pm on the last Friday of the Term 1, 2 and 3 New South Wales school holidays in 2015;

   (c)For the first half of the Term 4 New South Wales school holidays starting at 9am on the first Saturday of those holidays and concluding at 6pm on the middle Friday;

   (d)At such other times as the parties agree.

6. To facilitate order 2 the father shall collect the children from the mother at (omitted) Victoria, at 12 noon on 24 December 2014.

1. To facilitate the periods of time in Order 5 hereof the mother shall collect the children from the father at (omitted), New South Wales at the beginning of each period and return the children to the father at the same location at the end of each period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2086 of 2013

MR POULSON

Applicant

And

MS POULSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an interim parenting hearing relating to two children X born (omitted) 2000 and Y born (omitted) 2004.

2. X and Y are the children of Mr and Ms Poulson respectively the father and mother.

3. The father and mother separated in 2012.

4. On 3 July 2013 by consent, a Registrar in the Family Court of Australia made final property settlement orders. In those proceedings the mother was the Applicant and legally represented and the father was the Respondent and legally represented. Neither sought any parenting orders.

5. Until recently, that is until 27 September 2014, the parties had shared the parenting of the children. The children lived with the mother in (omitted) in Western Sydney and spent significant and substantial time with the father including recently Thursday evening to Sunday evening each fortnight, and block periods of time in school holidays including from 4 – 26 September 2014.

DOCUMENTS AND HEARING

1. On 11 September 2014 the father filed his Initiating Application which seeks the following interim orders:

   1. That the mother and father have equal shared parental responsibility for the children X (DOB (omitted) 2000) and Y (DOB (omitted) 2004) herein ‘the children’.

   2. That the mother be restrained from relocating the children’s residence from the Western Sydney are pending further order.

   3. That X continues his enrolment at (omitted) High School and Y continues her enrolment at (omitted) Primary School pending further order.

   4. That in the event the mother relocates her residence from Western Sydney to (omitted) Victoria, pending further order, the children live with the father and spend time with the mother as follows:

   4.1 For the second week of the NSW school holidays in September 2014.

   4.2 For 4 weeks during the Christmas school holidays in 2014.

   4.3 By telephone at any reasonable time, but specifically on each Monday and Thursday at 6pm with the mother to telephone the children at such time and the father to make the children available to take the calls with privacy and for these purposes the mother is to keep the father informed of her landline telephone number; and

   4.4 By email and/or Skype at any reasonable time and that, upon the mother making written request to the father, he is to install Skype facilities for the use of the children.

   4.5 Such other times as may be agreed between the parties in writing.

2. The father also relies on a Form 4 filed 11 September 2014 and his most recent Affidavit sworn 16 October 2014.

3. The father’s Initiating Application had a first Court date on 27 October 2014.

4. On 27 October 2014 the parties were directed to attend, and did attend, a Child Dispute Conference pursuant to s.11F of the Family Law Act 1975.

5. The Consultant’s Memorandum to the Court from that conference is Exhibit ‘A’.

6. The mother thereafter sought and was granted an adjournment to prepare documents.

7. The case was adjourned to 9.30am on 30 October 2014 for Interim Hearing.

8. At the commencement of the Interim Hearing the mother had prepared but not filed her documents. Her Response became Exhibit ‘B’ and her Affidavit became Exhibit ‘C’.

9. Her Affidavit was sworn on 25 October 2014 and her Response was signed on 25 October 2014, that is two days before the directions hearing. Her Affidavit was sworn in (omitted), Victoria.

10. In her Response she seeks interim orders as follows:

    1. That the mother and father have equal shared parental responsibility for the children, X (DOB (omitted)) and Y (DOB (omitted)), herein “the children”, consulting with the father if necessary.

    2. That the children be allowed to remain in the primary care, of and continue to reside with, the mother, in (omitted), Victoria….

    3. That X continue his enrolment at (omitted) Secondary College and Y continues her enrolment at (omitted) Public School.

    4. That the children live with the mother and spend time with the father as follows:

    4.1 For his planned trip to Queensland in November 2014 on the dates to be advised by the father at the times to be agreed by the parties, provided the father returns the children to the mother or her representative at the McDonalds restaurant (omitted), NSW (hereinafter the changeover location) at the time agreed by the parties in writing.

    4.2 From 5pm on Christmas Day 2014 until 5pm on the date requested by the father, not later than the 31^st December 2014, with the father to return the children to the mother or her representative at the changeover location at 5pm on the agreed day by the parties in writing.

    4.3 For up to an additional 14 nights during the December 2014/January 2015 school holidays….

    4.4 Contact by telephone at any time deemed reasonable…. At the request of the father to the mother via text message prior to calling the children…

    4.5 Contact by email/Skype/Facebook at any time agreed upon by the parties in writing, within the limits of the internet data available to the children at the time.

    4.6 At such other times as may be agreed upon by the parties in writing.

    5. That the father not contact the children via text/phone call/Skype/Facebook or any other means within school hours, or after 8pm.

    6. That the father not be permitted to remove the children from their current schools without prior written authorisation from the mother to the father, and the mother’s notification to the schools.

    7. That the father not approach, attend, loiter nearby, follow/stalk the mother at or in the surrounding suburbs of her place of residence or employment or the children’s schools or places of activities without or without the children present.

Issues to be Determined at Interim Hearing

·Should the children be permitted to relocate from Western Sydney to (omitted), Victoria?

·With whom should the children live? 

·What time should they spend with the parent with whom they do not live? 

1. The parties agree there should be an order for equal shared parental responsibility, for the children. That order will be made by consent pending further order. Such an order is in the best interest of the children because it continues a long circumstance that demonstrably worked until recently.

Agreed Facts

1. The father lives in shared accommodation in a three bedroom house in (omitted) in the (omitted) with another separated father.

2. Until September 2014 the mother and the children were living in (omitted). X was attending (omitted) High School and was in year eight and Y was attending (omitted) Public School in (omitted) and was in grade four.

3. The father between July and September 2014 sought to engage the mother in a Family Dispute Resolution process. The mother withdrew from the process. The father was issued with a s.60I certificate on 23 September 2014 on the basis of the mother’s withdrawal from the Family Dispute Resolution process.

4. On 1 September 2014 the father received a text message from the mother. They met and the mother told the father of her plan to relocate to (omitted) in (omitted) in rural Victoria with the children. The father conveyed his opposition to the relocation proposal to the mother.

5. The mother concedes she knew the father opposed the relocation of the children’s home as a result of this meeting.

6. The mother was personally served with the father’s Initiating Application and Affidavit sworn 10 September 2014 at 12 (omitted) on 12 September 2014.

7. The mother relocated from (omitted) to (omitted) in Victoria with the children on or about 27 September 2014. (omitted) is approximately 800 kilometres from the father’s home. The nearest major airport to (omitted) is in Melbourne which is about four hours by road to (omitted).  

8. The children spent time with the father by agreement with the mother from 4 to 26 September 2014.

9. The parties agreed the children would have holiday time with the mother in the second week of term three school holidays, starting 27 September 2014.

10. The mother refuses to return to Sydney with the children.

11. The father drove to (omitted) on 5 October 2014. He could not arrange any time with the children. He sought assistance from the Police, they spoke to the children to check their welfare. They advised the father they had no jurisdiction to otherwise assist him to recover the children.

12. Since then he has had some text message communication with X.

Chronology

(omitted) 1971	Father born
(omitted) 1972	Mother born
(omitted) 1996	Mother’s daughter Z from a previous relationship born
(omitted) 1999	Parties marry
(omitted) 2000	X born
(omitted) 2004	Y born
8 October 2012	Parties separate
26 March 2013	Mother and children move to (omitted).
1 September 2014	Mother sends text message to father requesting a meeting, they meet and father objects to children’s relocation
4–26 September 2014	Children stay with father
6 September 2014	A termination notice of the mother’s tenancy at (omitted) issued requiring vacant possession by 21 September 2014
11 September 2014	Father files Initiating Application
12 September 2014	Mother served with Initiating Application and father’s affidavit
27 September 2014	Mother takes children to (omitted), Victoria

Evidence

Mother

1. She says there was family violence during the parties relationship consisting of the father intimidating and yelling at her and on an occasion slapping her. An Apprehended Violence Order was granted.

2. She has relatives near (omitted) Victoria.

3. She says the rent is cheaper in (omitted) Victoria than in (omitted) NSW.

4. She says she can access more affordable fitness advisers to help her manage X’s weight in (omitted) than in Sydney.

5. She says post the date of separation she sought and obtained psychological assistance for both children. A letter from X’s psychologist is annexed to the mother’s Affidavit.

6. She describes both children as anxious.

7. She complains the father pays less than his child support assessment and has current arrears of about $320. His current weekly assessment is $407.36 but she says he only pays $314 per week.

8. She is not in paid employment and apart from limited casual employment was a stay at home mother devoted to the care of the children, she says with only limited help from the father.

9. The mother says she has been treated for ten years for depression.

10. She has no housing now in Sydney.

11. She says if the children are returned to Sydney she is likely to remain in (omitted) Victoria, but is not certain about this. In this event she would want to spend as much time with the children as possible.

12. The mother does not believe the school records about the children’s absences to be correct, saying many of the unexplained absences were in fact explained absences.

Father

1. The father says he will remain in Sydney if the children stay in (omitted) Victoria. He would then want to spend time with the children regularly during term time and during school holidays. He was unclear how this could occur in practice.

2. The father works full time in the (omitted) industry.

3. He says he can call on his parents for assistance when necessary to assist him care for the children if the children live with him.

4. He says he can manage his work hours so as to deliver the children to their schools and pick them up at the end of the school day and they can either then do homework at his workplace or they can return to his home in the (omitted).

5. His work place is in an adjoining suburb to (omitted), where until recently the children lived and went to school.

6. He submits the children’s school records show many absences by them from school for unexplained reasons when they live with the mother and very few absences when he is responsible for getting them to school.

Determination

1. The decisions in Goode & Goode [2006] FamCA 1346 and Morgan & Miles [2007] FamCA 1230 provide binding precedent guidance to me.

2. Parenting orders made at interim or final hearing must be informed by the objects in s.60B and must have as their paramount consideration the best interest of the children.

3. Section 60CC(2)(2A) and (3) set out a list of factors to be considered in deciding what is in a child’s best interest.

4. As well as being in a child’s best interest orders must also be reasonably practicable.

5. Both parents ask for an order of equal shared parental responsibility.

6. They can and do communicate about the children.

7. From 8 October 2012 when the parties separated until 27 September 2014 they had in large co-operatively implemented parenting arrangements for the children. They did not need Court orders.

8. They have a demonstrated capacity to make equal shared parental responsibility work.

9. I am satisfied such an order is in the children’s best interest for the above reasons, and will with the consent of the parties make such an order pending further order.

10. There is little evidence about the children’s views and what evidence there is ambivalent, likely shaped by knowledge of what each parent wants, making the children’s views less influential and causing me to attach less weight to those views than their age might have in less fraught times dictated.

11. The children since separation have spent more time in the care of the mother than the father. This fact mirrored the parenting circumstances that existed pre-separation.

12. Given the children’s ages and the times they have spent with each parent since separation I am satisfied the children’s relationship with each parent is secure and important and that they have and could live with either, notwithstanding the opinion expressed by X’s psychologist. I can only assume the psychologist was unaware of the extended period both children spent with the father in September 2014. Neither party leads any evidence about this period being upsetting for the children.

13. The children benefit from time with both parents. The parents seem to have acknowledged this by the arrangements for parenting the children they put in place.

14. Most recently the father has had regular text message communication with the children, mainly X and no face to face time since 27 September 2014.

15. The distance and travel time between the (omitted) NSW and (omitted) Victoria, approximately nine hours, makes an equal time order impracticable and impossible if the mother remains in (omitted) and the father in (omitted).

16. If the children live in Western Sydney and the mother returns an equal time order, although never previously experienced by the children would be both possible and practicable.

17. Both parents on the limited evidence seem capable and can provide for the needs of the children and have a demonstrated ability to do so.

18. X is an adolescent boy with anxiety issues for which he has been receiving assistance. He is unlikely to be welcoming of being in the middle of the current parenting dispute. His text messages to his father are capable of sustaining such an interpretation.

19. Y is younger, a girl and likely beginning the process of individuation that most children go through from late primary school age.

20. The mother acted unilaterally in relocating the children. She had thought through the process and saw it as the best alternative but hasn’t likely appreciated the impact it may have on the children and their relationship with their father.

21. Her evidence about the respective cost of housing in (omitted) and (omitted) is opinion, self-serving and without proven basis.

22. Similarly her evidence about the children settling quickly in (omitted) is self-serving and without demonstrated basis.

23. If the children are ordered to live in Western Sydney and the mother does not return, their relationship with their father would enable them to sustain this change especially if they spend time with their mother during school holidays and at some other time each term.

24. If the children remain in (omitted) their current relationship with their father is likely be sustained but maybe less meaningful provided they spent time with him in holidays and at some time during the term.

25. Both these conclusions I reach tentatively and without the benefit of expert evidence of the type that is obtained from a Family Report. An expert report will also be necessary to determine if the children would do better living with one parent than the other.

26. X’s anxiety was being treated in Sydney. A move means introduction to a new treater and the initial disruption that likely brings about.  

27. There is little evidence as to the treatment options for him in (omitted) or nearby.

28. His psychologist in Sydney was treating him for an adjustment disorder with depressed mood and anxiety triggered by family conflict on parenting separation[1].

    [1] Report by Ms Y dated 27 October 2014 – Annexure ‘C’ to the mother’s Affidavit

29. X must also travel from (omitted) to another place for high school. His anxiety will likely make the relocation difficult for him.

30. X has told his psychologist he wants his father to pay more attention to him.[2] A move to (omitted) makes this much harder to achieve.

    [2] Report by Ms Y dated 27 October 2014 – Annexure ‘C’ to the mother’s Affidavit

31. His school attendance record at (omitted) was poor, especially when in his mother’s care and much less so when he is in his father’s care. The school records which are exhibited are persuasive evidence of this. They are government records and I accept them as accurate despite the mother’s submission to the contrary.

1. A final hearing is some months away.

2. Although the mother has no current accommodation in Western Sydney she could likely obtain some, given time to make arrangements.

3. The children have been at their new schools all of Term 4. The term is half completed.

4. The father’s work place closes from 23 December 2014 to 5 January 2015.

5. If the children return to Sydney at that time, they can complete the current term and be ready to re-enrol next year at their former schools in Sydney thereby minimising educational disruption this term.  

6. The father will then have extended holidays to help them settle. This will possibly be important if their mother does not return to live in Sydney.

7. A return to living in Sydney will be less of a change for the children.

8. Meaning less disruption to their education and to the treatment of X anxiety. It would result in no change in the relationship they enjoy with their father and allow a strengthening of the father/son relationship as recommended by X’s psychologist. If the mother also returns it would allow them to maintain the relationship they have with their mother. If she stays in (omitted) their relationship with her will probably change.

9. On balance it is in the children’s best interest pending further order that they live in Sydney. If the mother does not return they will live with the father. If the mother returns before the end of the summer holidays they will live with her and spend time with the father from after school Thursday to before school Wednesday. They have never lived in an equal time arrangement. An extra two nights with the father will likely improve both their school attendance and increase time between X and the father. It will also reduce the financial burden on the mother likely allowing her to more readily afford the rental of a home.

10. If the mother remains in (omitted) two weekends a month and half school holidays would be the minimum time that is in the children’s best interest to spend with her. More school term time would be in their interest if the mother could commit to an sustain the travel. As that is not certain a flexible option would then be in the children’s best interest in case she can travel to Sydney more regularly.

11. I am comfortably satisfied the mother can get housing that is appropriate in Western Sydney as she has in the past.

12. I do not accept her assertion that she cannot afford the rent, notwithstanding the termination notice, Exhibit ‘A’ to her Affidavit. It is noted that the tenants on the termination notice are Ms Poulson and Mr C. Her Affidavit is silent as to Mr C. It is possible he is no longer a tenant and if so this has possibly caused her rental default.

13. Affording rent is an issue that goes to the reasonable practicality of the orders.

14. If the children live with the father or spend more time with him his flexible work arrangements and the possibility of assistance from his parents mean the orders are reasonably practicable for him.

15. The time from the making of these orders until the end of the holidays gives enough time for the mother to decide whether he will return to Sydney and give her time to obtain housing. This also aides in the practicality of the orders.

16. On 30 October 2014 it was ordered the father spend the weekend of 7 November 2014 with the children so as to enable him to remain a presence in the children’s lives.

17. On 30 October 2014 a Family Report was ordered and the case was adjourned to allow the preparation of that report which is to be available by August 2015.

18. As such by requiring the children to return to Sydney they will remain living in Sydney for at least all of 2015 before a final hearing could be listed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  27 November 2014