Preston and Preston

[2009] FamCA 909

FAMILY COURT OF AUSTRALIA

PRESTON & PRESTON [2009] FamCA 909

FAMILY LAW – CHILDREN - Interim proceedings - Both parties are seeking orders for the children to live with them and spend time with the other parent - Each party is also seeking an order for sole parental responsibility - A few weeks ago the mother relocated with the children from the Hunter area to Queensland without informing the father - Mother ordered to ensure that the residence of the children is within the confines of two Newcastle City Council areas - Parties to have equal shared parental responsibility - Children to live with the mother and spend time with the father each alternate weekend and half of school holidays - Matter transferred back to the Federal Magistrates Court

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Preston

RESPONDENT: Mr Preston

FILE NUMBER: NCC 74 of 2009

DATE DELIVERED: 27 August 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Honourable Justice Austin

HEARING DATE: 27 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Ashby, Craney Family Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Guyder, Braye Cragg Solicitors

Orders

PENDING FURTHER ORDER, IT IS ORDERED:

1. All former parenting orders are discharged.

2. The mother and father shall have equal shared parental responsibility for the children, E, born … September 2002, and L, born … December 2003 (“the children”). 

3. The children shall live with the mother, and the mother shall ensure that, within 14 days from the date of these Orders, the residence of herself and the children is located at an address within the confines of the K City Council and Newcastle City Council boundaries.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time and communicate with the father as follows, or as otherwise agreed:

   (a)By telephone each Tuesday and Thursday night between 6 pm and 7 pm, and for that purpose the father shall telephone the children on a telephone number provided by the mother to him within 48 hours from the date of these Orders, and the mother shall ensure that the children are able to receive the father’s calls at that number.

   (b)During New South Wales public school terms, each alternate weekend from 5 pm on Friday until 5 pm on Sunday, commencing on Friday 11 September 2009.

   (c)During New South Wales gazetted school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year and for the second half of such holidays in every odd numbered year.

   (d)During the New South Wales gazetted Christmas school holidays, on an alternating week-about basis commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

5. Each of the parties shall take all reasonable steps to ensure that the children communicate with the mother each Tuesday and Thursday between 6 pm and 7 pm, when the children are spending time with the father during school holidays periods, and for that purpose the mother shall telephone the children on the telephone number provided by the father to her within 48 hours from the date of these Orders, and the father shall ensure that the children are able to receive the mother’s calls at that time.

6. For the purposes of implementing the time spent by the children with the father, the mother shall cause the delivery of the children to the residential premises of the paternal grandparents at M at the commencement of the time to be spent with the father, and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place. 

7. The parties shall inform and keep each other informed in writing of their respective current residential address, landline telephone number, and mobile telephone number.

8. These proceedings are transferred back to the Federal Magistrates Court and are listed for further directions before that Court at 9.30 am on 20 November 2009. 

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 74 of 2009

MS PRESTON

Applicant

And

MR PRESTON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before the Family Court of Australia as a consequence of a transfer today from the Federal Magistrates Court.  The reason for the transfer of the proceedings was the apparent urgency attaching to the interim applications pending before the Court brought by each of the parties.  The Federal Magistrates Court was unable to afford the parties the urgent hearing that was understandably necessary. 

2. The competing applications requiring the Court's attention are:

   a)A Response filed by the father on 10 July 2009,  the interim orders set out therein having been supplanted by a Minute of Orders tendered at the commencement of the hearing by the father's solicitor;  and

   b)On the mother's part, an Amended Application filed on 4 March 2009.

3. The parties are the parents of two young children:  E, born in September 2002, and L born in December 2003.  Self-evidently, E is now six years and 11 months and L is five years and eight months.

4. The parties commenced a relationship in or about February 2001.  They were married in August 2001 and they separated on 10 March 2008.  At the time of separation they were living in the Newcastle area. 

5. The applications which are in dispute between the parties indicate that there are a number of issues to be adjudicated.  Firstly, each of the parents wants parental responsibility in respect of both children allocated to them solely.  Secondly, each party wants the two children to live with them in their respective households.  Thirdly, each contending residential parent wants the children to spend time with the non-residential parent. 

6. On the face of the documents, each party proposes that the time spent by the children with the other be for a period of one week in every school holiday period, but as the case evolved during the course of submissions it became apparent that the nature of the time to be spent by the children with the non-residential parent would be dictated by the Court's decision as to who the residential parent would be. 

7. The mother, for her part, contended that any time spent by the children with the father ought be supervised by the paternal grandparents but, again, that position was fluid.  In the course of submissions it was indicated that such supervision would not be necessary. 

8. In undertaking the determination of interim parenting orders, the Court is obliged to follow the process set out in the authoritative precedent of Goode & Goode (2006) FLC 93-286.

9. I have outlined already the competing proposals of the parties and, in brief form, the issues in dispute between them. 

10. A brief summary of the chronology is illuminating.  As I already indicated, the parties separated whilst living in the Newcastle area on 10 March 2009.  The separation manifested itself as a consequence of the father apparently deciding to relocate himself to a geographically distant place.  He settled in or about a rural locality called D, which the evidence discloses is in the district of the New South Wales/Victorian border. 

11. The evidence discloses that the father is a truck driver employed in full-time employment and that, at least at the present time, his employment has him driving a frequent route between Sydney and Melbourne, stopping at his home in D en route, depending upon the direction in which he is travelling. 

12. The father has, since separation, formed a relationship with a young woman called Ms G.  They live together in their household at D, which also comprises a young child born to Ms G in a prior relationship. 

13. Following their separation, Ms Preston, the mother, remained in occupation of the former matrimonial home in K, a suburban area of the Hunter Valley.  She remained there with the two children of the parties.  She also remained there with her elder child, a daughter C, being a child born to her from a former relationship, and an older child called T, who is, in fact, the child of the father from an earlier relationship. 

14. The uncontested evidence is that for a period between about March and August 2008 the children had very little time, or communication, with the father. The reasons for that have not been fully explored, nor should they be necessarily at this interim stage.  The fact of that paucity of contact between the children and the father, which is largely undisputed, is sufficient for the purposes of the determination of the interim proceedings. 

15. The father's interest in the children was apparently rekindled in or about August of 2008 and, without the existence of any parenting orders, the parties were able to mutually agree that the two subject children of the marriage spend time with the father in the school holidays which occurred in or about September 2008.  That time in those school holidays ensued between the children and the father apparently uneventfully. 

16. Because of the distance between the households, I understand the evidence to indicate that the children spent little time, and communicated little, with the father in the next few months before the Christmas holidays but that again, in the Christmas holidays, the children spent some block holiday time with the father at his home in the D district.  At the conclusion, or what was thought to be the conclusion of that block time, the children were not returned by the father to the mother.  Again, the reasons for that have not been fully explored but recognition of that fact is sufficient for today's purposes. 

17. The mother was discontent with the failure of the father to ensure the return of the children to her, and she instigated proceedings before the Federal Magistrates Court, which resulted in orders being made by Lapthorn FM on 23 January 2009.  The general tenor of those orders was that a recovery order was made compelling the return of the children to the mother forthwith.  Those orders were the subject of compliance, and the children were returned to the household of the mother. 

18. Again, the evidence indicates that there was a period of months where the father spent little time, and had little communication, with the children.  That is unsurprising because the orders that were made by Lapthorn FM on 23 January 2009 included Order 4, which read:

    4. Any time the children [E] and [L] are to spend with their father is suspended until further court order.

19. Clearly, until that order came to be changed, there was an impediment to the children spending any further time with their father.

20. The matter came back before the court for procedural orders some weeks later on 19 February 2009 and on that occasion was dealt with by Coakes FM. Order 7 made by the Federal Magistrate directed each respondent to file and serve a Response and any affidavit upon which either intends to rely by 27 March 2009. 

21. The reference to the two respondents was a reference to the father in these proceedings, and the father of Ms Preston’s other child, C, who has no interest in the proceedings before the court today.

22. What is clear from the evidence before the court is that the father did not comply with that order.  As I recorded at the beginning of my reasons, the document relied upon by the father in these interim proceedings was a Response which he filed on 10 July 2009.  Self-evidently, that was some four months after the date by which Coakes FM directed that such document be filed.  

23. The mother has invited me to draw the inference, and I do so, that any alarm that the father had about the circumstances in which the children then lived with the mother was not as serious as he is contending today.  That is not to say that the mother has been without difficulty, or that the mother’s household has been without difficulty.

24. Apart from the documents that I have identified, which have been read in evidence by the parties, each party has tendered a raft of material produced on subpoena.  A casual reading of that material indicates that the household of the mother has, for a period of time, been rather chaotic.  That difficulty in her household appears to have been apparent from the latter months of 2008, when she fell into dispute with the real estate agent managing the tenancy of the former matrimonial home at K.  It is clear from the documents tendered from subpoena packet 8, produced by W Real Estate, that the state of the household was in a state of disrepair for a number of months.

25. That predicament culminated in the Consumer Trader and Tenancy Tribunal of New South Wales making an order on 31 July 2009 terminating the tenancy and compelling the mother to relinquish possession of the property at K to the landlord on 14 August 2009.  She duly complied with that order. 

26. Her affidavit material indicates that she moved on or about that date to Queensland and, further, that she entered into a residential tenancy agreement in a trailer park on 15 August 2009.  That move by her, and the children within her care, to Queensland was wholly unexpected by the father.  No notice was given to him.  No notice was given to the family consultant who, in recent months, has consulted with the parties and recently prepared a Family Report released on 21 August 2009. 

27. As things presently stand, the father maintains his household at D and the mother is now ensconced at that new address in Queensland with the two children the subject of these proceedings, C and T. 

28. The family consultant, as I said, had his report released on 21 August 2009.  In summary, the recommendations of the family consultant in relation to the parenting arrangements for the children are that E and L should continue to live with their mother and that the father should have twice-weekly telephone contact with them, and that the children should spend the entirety of the July and October school holidays with their father, together with a period of two weeks in the Christmas school holidays, and a further one week in the Easter school holidays at 2010.

29. The family consultant opined that the children should not be moved further away from their current location by their mother.  It should be noted that, at the time the family consultant prepared that report, he understood the mother’s household to be at K, and the family consultant was entirely ignorant, at the time his report was published, of the mother’s move with the children to Queensland approximately a week before. 

30. In dealing with the competing applications of the parties, I am obliged to have the best interests of both children at the forefront of my mind as the paramount consideration. Determining what is in the best interests of the children entails a synthetic collection of the evidence, measured against those criteria set out in section 60CC of the Family Law Act, to which I now turn.

31. By reference firstly to the primary considerations dictated by section 60CC(2), the following observations may be made.

32. The children plainly have a meaningful relationship with both parents. That is the general tenor of the family consultant’s report.  So far as the mother is concerned, she has been the primary caregiver of the children at least since separation in March 2008 and I am prepared to draw the inference on the available evidence that she took the primary role in terms of supervision of, and care for, the children during the period of the relationship prior to the separation. 

33. That is not to diminish the role played in their lives by Mr Preston. But the fact is, he was the primary breadwinner and axiomatically, primary responsibility for the household fell to the mother.  There can be no doubt that she has been almost solely responsible for the children from the time of separation in March of 2008.

34. As I said, there is no doubt that the children have a meaningful relationship with both parents and the report of the family consultant suggests that the children also have a warm relationship with the father’s partner but, by way of caveat, I note that the children have had very little exposure to Ms G in the period since separation.  It follows that I will make orders that preserve the meaningful relationship that the children have with both parents. 

35. There is no evidence adduced which invites the court to find that the children are exposed to physical or psychological harm at the hands of either parent.  Ms Preston, the mother, has suggested in passing in some of her affidavit material that the father has an alcohol dependence which exacerbates his temper and that he has perpetrated family violence in the past.  Those allegations are the subject of rebuttal by the father. 

36. Given the nature of the interim proceedings, I am unable to resolve that factual dispute and, apart from recognising that the allegations are made and refuted, I make no further finding.  I am not satisfied that, on the basis of the evidence that has been adduced, the children are at an unacceptable risk of abuse at the hands of their father at any time in the future. 

37. Conversely, the father has contended that the children are not at risk of abuse or family violence in the care of the mother, but rather, are at risk of neglect.  In making that allegation, he invites my attention to material to which I have already adverted from W Real Estate concerning the chaotic nature of her household, but in addition, material produced on subpoena by the Department of Community Services.

38. True it is that some of the documents tendered in evidence amongst the material produced by the Department demonstrates that there may have been some concerns about the level of physical care provided to the children in the care of the mother from time to time but, by the same token, there are other documents within that material which suggest that some of the complaints made to the Department about the care of the children have been maliciously made. 

39. For example, it is recorded on 8 April 2008, that a complainant made a call to K Primary School, raising concerns about E in particular.  Investigation revealed that the children were well presented, bring their lunch and their homework done to school. 

40. On 19 March 2008, a report was made which required police and ambulance officers to attend the home of the mother in response to information given.  The allegation was made that the mother had seriously physically abused the children.  It was reported that a child was found to be safe, well and not distressed. 

41. On 25 March 2008, the police again were called upon to attend for a welfare check at the home of the mother following allegations that one of the children was unconscious as a consequence of consuming alcohol.  The children were found to be fine. 

42. The mother has indicated to the Department that allegations made against her are malicious and the Department file records that that appears, at least on some occasions, to have been supported or corroborated as a consequence of police visits.

43. Some of the material contained within the affidavit material of the father is photographic evidence taken by the father at the home then occupied by the mother at K with the children.  The photographs disclose that the home was not particularly well cared for. 

44. I am not convinced at this particular point in time, at least at an interim stage without the benefit of fulsome evidence about those circumstances, that that is anywhere near as serious as to warrant the removal of the children from the care of the mother.  Although it may be that the father has grounds to have legitimate concerns about the level of care offered by the mother to the children, I am not persuaded that, on the evidence so far provided, I could properly conclude that the children are at risk of neglect on the part of the mother.

1. With respect to the additional considerations set out within section 60CC of the Act, I note that the children are still quite young. The material produced on subpoena from their schools indicates that their progress at school is capable of improvement. There is nothing to suggest that they have not met their normal milestones.

2. I suspect, in the circumstances, that their emotional maturity is commensurate with their chronological age.  They are simply too young to express a view in which I would repose any real weight.  I have already commented upon the fact that the children have a very positive relationship with each of their parents.  It is important at this point to record that the children have an important relationship with other people in their lives, most notably their half-sister C and their half-brother M.

3. As I have already recorded, C is the daughter of the mother from a former relationship, and M is a child of the father from a former relationship.  They still comprise part of the mother’s household and I am prepared to accept the submission that the children enjoy a warm relationship with their half-siblings. Separation of the children from those half-siblings is likely to have a deleterious effect on the children, and I am mindful of that fact when determining this matter. 

4. There has been a willingness and ability on the part of the mother to facilitate and encourage a close and continuing relationship between the children and the father, to the extent that their geographical circumstances permit.  As I have already indicated, without the benefit of any parenting orders being in place, the mother facilitated the children’s travel to spend block holiday time with the father in or about September and December 2008. Her having done so demonstrates a capacity and a willingness to facilitate the relationship between the children and the father. 

5. Although the father declined to willingly return the children to the mother following the block time that he enjoyed with them in December 2008, I am not prepared to draw the conclusion that he is not willing or able to facilitate a relationship between the mother and the children.  I am prepared to accept that he was at that point in time somewhat concerned with the unsatisfactory domestic circumstances that prevailed in the mother’s household. 

6. The change of the children’s circumstances at this point in time is regrettable.  The mother has relocated the children to a very distant place on short notice without telling the father, and without telling the family consultant of the imminence of that move.  I cannot countenance how the mother could consider that that move might have been in the best interests of the children. 

7. The evidence about that is not all one way.  The father, as I have already said, decided to unilaterally remove himself from the matrimonial household in March of 2008 and move to a property on the border region of Victoria and New South Wales, after which time he had little contact with the children for some time. Those respective changes in domestic circumstances for the children must have been dire on both occasions. 

8. The mother has been the primary carer for the children.  They live in her household with their half-siblings.  The evidence points in the direction that unless the risk to the children in her household is untenable, they ought to remain with her, at least on an interim basis. 

9. Clearly, with households in Queensland and on the New South Wales/Victorian border, there is a practical difficulty and expense for the children to spend time with the non-residential parent or to have communication with the non-residential parent, given the mobile phone transmission difficulties from the location where the mother is currently living. 

10. The father has made submissions about the mother’s lack of commitment to the children’s education.  In my view, those submissions are made with merit.  The records produced on subpoena in subpoena packets 3 and 5 by the home school liaison officer and the K Public School respectively demonstrate an appalling level of absenteeism on the part of both children, but particularly E. 

11. The father is rightly concerned about that level of absenteeism which cannot possibly be logically explained.  For her part, the mother’s solicitor has conceded in submissions that that appalling school record has to be rectified immediately.  That unfortunately reflects poorly on the mother’s parenting capacity. 

12. As I have already remarked, there is no evidence suggesting that any family violence has directly involved the children, and so far as I am aware from the evidence adduced there is no family violence order in existence. 

13. The Family Law Act requires me to deal firstly with the issue of the allocation of parental responsibility, having regard to those matters of salience that I have mentioned under section 60CC of the Act.

14. Each party, as I indicated earlier, seeks an allocation of parental responsibility solely to themselves. 

15. There is a presumption that on the making of parenting orders the court will allocate equal shared parental responsibility. 

16. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or in family violence.  The evidence does not permit me to find that either of those qualifications is triggered so as to not permit the presumption to apply. 

17. When making an interim order, that presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied.  Nothing about the evidence leads me to the conclusion that the presumption ought not be applied at this interim stage. 

18. Finally, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  Nothing that has been put before me leads me to conclude that the presumption ought to be rebutted. 

19. For those reasons, I allocate equal shared parental responsibility to the parties, and I will make an order accordingly shortly. 

20. Given that such an order is to be made, I am now mandated by section 65DAA of the Act to consider whether the children should spend equal time with each parent, or alternatively, substantial and significant time with the non-residential parent, and in making that determination I must still bear in mind what would be in the best interests of the children, and whether either equal or substantial and significant time is reasonably practicable. 

21. I am not satisfied that either equal or substantial and significant time with the non-residential parent is in the best interests of the children at this interim stage. Nor is it reasonably practicable.  The households of the parties are just too geographically distant. 

22. It should also be observed that neither party advocates for an order which would have the children spending equal time with them, or alternatively, substantial and significant time within the household of the non-residential parent. 

23. Having regard to all of those considerations, in my view the appropriate orders to be made are to allocate equal shared parental responsibility; for the children to remain in the household of the mother; for the mother to ensure that the residence of the children is within the confines of the K and Newcastle City Council areas; and to now impose orders that will see the children spending meaningful time with their father and communicating with him.

24. I intend to make the following orders to implement such an arrangement.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  18 September 2009