Prewett and Mann
[2008] FMCAfam 1523
•25 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PREWETT & MANN | [2008] FMCAfam 1523 |
| FAMILY LAW – Parenting – interim relocation. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| C and S [1998] FamCA 66 Goode & Goode (2006) FLC 93-286 Morgan & Miles [2007] FamCA 1230 Sampson & Hartnett [2007] FamCA 1365 |
| Applicant: | MR PREWETT |
| Respondent: | MS MANN |
| File Number: | SYC 645 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 25 February 2008 |
| Date of Last Submission: | 25 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Counsel for the Respondent: | Mr Serisier |
| Solicitors for the Respondent: | Swaab Attorneys |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parents have equal shared parental responsibility for the Child [X], born in 2004 (“the Child”).
The Mother Ms Mann is restrained from:
(a)Relocating the Child to [M] or to any other location outside the Eastern Suburbs of Sydney; and
(b)Enrolling or causing or permitting the continued enrolment and attendance of [X] at any Day Care Centre or pre-school outside the Eastern Suburbs of Sydney; and
the Mother is to do all thing necessary to implement this order no later than 3 March 2008.
In the event the Mother elects to reside in [M] or otherwise outside the Sydney Metropolitan area, [X] live with the Father in Sydney, and spend time with the mother as follows:
(a)Each alternate weekend from 4.00pm on Friday until 11.00am on Monday; with the Mother to collect [X] from the Father at the commencement of such weekend and return [X] to the Father at the conclusion of such weekend;
(b)Each Wednesday at 10.00am to Thursday at 5.00pm (at the Mother’s election) provided that the Mother collect the child from, and return the child to, the Father.
(c)On any further periods agreed between the parents from time to time.
In the event that the Mother elects to return to Sydney and reside in Sydney (mother’s alternative election”) which election shall be evidenced by the mother relinquishing, or otherwise sub-letting, the premises she presently leases in [M] in the Southern Highlands of New South Wales (or as the parties agree) then the child [X], immediately upon the resumption of residence in Sydney, is to spend time with the father on the following basis:
(a)During the first week of the fortnight; from 10.00am Thursday until 5.00pm Friday;
(b)During the second week of the fortnight, from 10.00am Thursday until 10.00am on the following Monday; and
(c)For one week during each of the autumn, winter and spring school holidays in 2008 being the first week of such holidays unless the parties otherwise agree;
(d)For two weeks during the summer school holidays in 2008 being the last two weeks unless the parents otherwise agree;
(e)Where Father’s day falls on a weekend where the Child is not living with the father, the mother shall cause the child to be delivered to the Father at 6.00pm on the Saturday preceding Father’s Day and the Father will return the Child to the mother at 9.00 am on the following Monday;
(f)If the Child’s or the Father’s birthday falls on a day when the Child is living with the Mother, then the Father will spend time with the Child for a period of up to four (4) hours on that day, such hours to be agreed between the parents, but failing agreement to be from 3pm to 7pm;
(g)On Mother’s Day the Father’s time with the Child is suspended from 5.00pm on the day preceding Mother’s Day.
The Child live with the mother at all other times.
Within 14 days of this order the parents do all thing necessary to consult an appropriately qualified person to advise them about whether [X] is developmentally prepared and suitable for pre-school in 2008, and if so for what period each week. If the parents are unable to agree about whether [X] is ready for pre-school in 2008, they will abide by the recommendations made by the qualified person above, and do all things necessary to implement the same. The father is to pay the costs of [X]’s attendance at pre-school or day-care as the case may be. The parents are otherwise to share equally in the costs of implementing this order.
If the Mother resides within the Eastern suburbs of Sydney, in order to give effect to these orders the father is to collect the child at the commencement of time spent with [X], and the Mother is to collect the child from the Father at the conclusion of the time [X] spends with the Father, except where the child is to attend pre-school or day care in accordance with these orders in which case the Father is to deliver her to pre-school or day-care as the case may be.
The matter be adjourned to18 June 2008 at 10am for a two day final hearing.
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4 June 2008. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing;
(b)The Orders sought at hearing;
The parties have liberty to apply on 7 days notice with regards to the interpretation, implementation or enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Prewett & Mann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 645 of 2008
| MR PREWETT |
Applicant
And
| MS MANN |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The applications before me are competing applications. The father's application is an application in a case that is filed on 6 February 2008 and in it he seeks orders that effectively restrain the mother from relocating with their daughter to [M] and enrolling her at a school, and various other orders including orders for shared parenting.
The mother's response was filed on 21 February 2008 and it seeks various orders in relation to the child spending time with the father. For all practical purposes the dispute before me is commonly known and recognised as an application arising out of what the father says was a unilateral relocation by the mother, and the thrust of his application is to have the child returned to Sydney and the various orders consequent upon whether or not that happens.
By way of background, the applicant father is 40 years old and he describes himself as an [occupation omitted]. The respondent mother is 37 years old and she describes herself as a [occupation omitted]. They married in March 2004 and separated on 14 February 2005, though they cohabited for various periods before March 2004. There is one child of the marriage [X]. She was born in June 2004 and she is about three and a half years old now. On 11 February 2008 when the matter first came before me the parties entered into interim orders that I incorporate into these reasons. For practical purposes they provide for the father to spend time with the child, [X], on a fortnightly basis. During the first week of the fortnight it is from 10am Thursday until 5pm on Friday. During the second week of the fortnight it is from 10am Thursday until 5pm on Sunday.
The parties attended a child dispute conference on 12 February 2008 and the child dispute conference memorandum was before me and it indicates that a judicial decision is required, that the parties are attending counselling with Ms B. The family consultant also makes a recommendation that an order 30A report be prepared, and once I make some orders I am going to invite Mr Serisier and Mr Schonell to indicate whether that is the preference still or whether I should make an order for a family report. We will get to that.
As for the issues in this case, the issue is what order under the circumstances is in the best interests of [X]? Of course, it is a temporary order. Any order that I make is pending further order of the Court to be made at a final hearing. So the question is what is in her best interests in this period? As I have said, the facts may very loosely be categorised as a unilateral relocation by the mother.
The applicable law is contained in Pt VII of the Family Law Act 1975 and I incorporate into these reasons the objects provisions in s.60B, s.60CC, which sets out a statutory list of factors that goes to the best interests of [X]. There is s.61DA which creates the presumption of equal shared parental responsibility. That applies in this case. And then s.65DAA that requires me to consider substantial and significant time, or equal time, provided that is in the best interests of [X] and is reasonably practicable.
The relevant case law includes the Full Court's decision in Goode & Goode (2006) FLC 93-286, and again I incorporate into these reasons the relevant passages that deal with how interim matters such as this one should be dealt with. I think the other relevant Full Court decision is the Full Court decision of Morgan & Miles [2007] FamCA 1230 a decision of Boland J sitting as the Full Court. The relevant passages are paragraphs 86 to 92 of her Honour's judgment and for the purposes of these oral reasons I incorporate those passages.
Another relevant decision which is referred to in Morgan & Miles is the Full Court's earlier decision in C and S [1998] FamCA 66.
Mr Serisier, counsel for the mother, submitted that the Full Court's recent decision in Sampson & Hartnett [2007] FamCA 1365 was also relevant on the facts of this case. I must respectfully disagree with Mr Serisier, something that happens very rarely I should say. I do not think that Sampson & Hartnett is a decision that assists me in the context of an interim relocation such as this one. To the extent that Mr Serisier's submissions amounted to an argument that if I make the order returning the child that that in effect compels the mother to relocate, if that were the case then Sampson & Hartnett would have something to say. But I do not think that is the effect of the order that I make. The mother has the choice as to what she wants to do in this case. So, in any event, Sampson & Hartnett I do not regard as relevant in the context of making this decision.
The competing proposals are set out in the father's application in a case and the response of the mother, and again I incorporate those orders into these reasons. Under Goode & Goode I have to ask myself am I able to identify common ground or undisputed facts between the respective parties, and I think in this case the answer is yes. I think it is common ground, and indeed undisputed that till the end of January [X] was in Sydney, she was spending time with her father, a matter that for example is set out in the mother's affidavit at paragraph 26. It is clear that he was spending time with her at least each week and certainly each alternate weekend.
It is common ground that she was at pre-school, that the travel that was involved in her spending time with each parent was minimal, indeed insignificant under the circumstances. This is a case where there are no allegations of family violence. There is no allegation of abuse. There are no mental health issues. There are no addiction issues. There is no serious attack by one parent against the other about their capacity to parent.
I think it is uncontentious that the mother has acted unilaterally in some respects, certainly in terms of the move and then enrolling [X] in [G].
I think it is a reasonable inference for me to make on the facts that there was a failure to communicate with the father about these issues. I wonder, thinking out loud again informally, whether it is in fact the communication difficulties that exist between [X]'s mum and dad that is at the core of this issue.
Again, just continuing on the theme of common ground or undisputed facts, or matters in respect of which a reasonable inference can be drawn, I think there is no evidence to indicate that the mother cannot move back to Sydney, despite some evidence that was tendered today that indicates that the property at Property B, may need to be sold.
The mother's evidence seems to be that she is financially self-sufficient and therefore I think the inference can be drawn that there is nothing to actually present an obstacle to her returning to Sydney whether or not Property B has to be sold. I think the other common ground or a matter in respect of which I can make a strong inference is that the mother was the principal carer of [X] when it is all said and done, looking at it historically.
I am required to consider each of the mother's and the father's proposal through the lens of Pt VII of the Family Law Act1975, especially s.60CC and s.65DAA. When one looks at the father's proposal there are positives and there are negatives. One of the positives of the father's proposal is that he proposes basically that which was described in paragraph 87 of the Full Court's decision in Morgan & Miles.
Where Boland J refers to this, the circumstances of the child at the time of application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence may well be likely to be extremely relevant and one of the positives of the father's proposal, except in one respect that I will get to in a moment, is that it returns [X] to her circumstances before the move to the Southern Highlands so that is one of the positive things that the authorities have indicated.
His proposal provides ongoing stability for [X] and a return to a consistent routine. It avoids the problem that was referred to at paragraph 88 of that decision and that is basically putting me in a position where I will have to determine best interests in an abridged interim hearing which really is an unsatisfactory way of making long-term decisions. That is one of the other positives that the father's proposal makes.
However, there are negatives in the father's proposal, particularly insofar as he is suggesting that it should be equal time. Equal time represents a very substantial departure from the circumstances of [X] at the time of the relocation and inasmuch as the mother cannot use the unilateral relocation to create and maintain a significant change in [X]'s life, the father cannot use it to create what would be a very very significant change in her circumstances. I have quite big concerns about whether [X], at this particular stage in her life, would be able to cope in a developmental sense with the sorts of changes that will be brought about by going straight to equal time.
With the mother's proposal there are positives. One of the positives is that we would not have to, as a result of my orders, bring about more change in [X]'s life. On the mother's proposal she says that both [X] and herself are happy and as part of the mother's case it is presented as a positive in her proposal that, at least on the surface, it maintains the status quo in this sense that the father's time with [X], even on the mother's proposal after relocation is not changed. To quote Mr Serisier, "Life goes on". And indeed he says that it is an improved life from the mother's perspective, particularly because she would be happy.
However, there are negatives in the mother's proposal. Inherent in the mother's proposal is a situation where [X] would be going to, in the same week, depending on whether she is with mum or dad, she would be going to a pre-school and some sort of day care. On behalf of the mother, Mr Serisier stressed the qualitative differences that exist between pre-school and care, but rather than that being a positive, I must say I find that as a negative, particularly when one tries to experience this through [X]'s perspective. I would be worried about how she would cope with two different educational experiences whilst with each parent. I am not sure that that is good for her.
The travel issue is another negative that I think is part of the mother's proposal here. I know that it is disputed as to whether it is an hour or an hour and a half or even more. The doctrine of what is called judicial notice enables the Court to take into account things that are widely known, and indeed not to ignore my own experience in these matters, and I take into account all of those things and I am satisfied that for a three and a half year old child on the mother's proposal there is substantial travel involved.
What I do not know is how she would cope with that. I know the mother says that they are used to travelling, especially in the context of travelling down to [B] and all that, but I do not know. Circumstances are completely different. The travel in this context would be what I would describe loosely as stressful travel, and I need to know more, particularly from an expert, what impact that would have on [X], not just in terms of the travel but the broader issues of change as well.
The other thing that I am satisfied is a problem with the mother's proposal is that it does restrict the father's time. The distance makes it almost impossible for him to become involved in the school. Mr Serisier says there is no evidence to indicate that he has been involved in the school in the past. I do not know. I am trying to look forward here to the period between today and when we have a final hearing. The legislation requires me wherever possible to try to ensure that there is a meaningful relationship between children and their parents.
Section 65DAA talks about substantial and significant time and equal time and says that where possible I should strive to come up with a parenting arrangement that enables [X] to have the benefit of both her mother and her father in a whole range of different contexts, including when she goes to pre-school or long day care, including on weekends and all of those sorts of things. I think that the mother's proposal restricts the father's time then.
I think the other big problem with the mother's proposal is that really if I grant her application, I think for all practical purposes the case has been decided. It pre-determines the issue. I ask myself if I made the orders that the mother has sought now, how easy would it be to change it when I make a final decision later on this year. I think it would be almost impossible to change it. So when one analyses both the positives and the negatives, puts them in the balance, I think that the legislation and trying to find a best interest outcome for [X] favours the father's proposals except in relation to equal time.
The legislation asks me to consider equal time or substantial and significant time in each case by reference to what is in the best interests for [X] and what is reasonably practicable. It is probably reasonably practicable to have equal time. I do not think there are any significant practical obstacles. I think though that it is not in her best interests, having regard to her age, having regard to I think the strong inference that I can draw that her mother has been the primary carer for her during her lifetime. So on that basis I think equal time is not in her best interests.
In terms of the orders I make, and I might just hand these down to the Bar table. I will leave the parties and their representatives to look at it in detail, but just to describe it for the sake of the parents. I have made an order for equal shared parental responsibility. I have made an order that restrains the mother from relocating the child to [M] or outside the eastern suburbs of Sydney and enrolling or causing or permitting the continued enrolment and attendance of [X] at any day care centre or pre-school outside of the eastern suburbs, and in order to give the mother an opportunity to implement this, I have said that this must be done no later than 3 March 2008. So that is to provide a little bit of time to actually bring about the changes that have to happen.
In the event that the mother elects to remain in [M] or otherwise outside the Sydney metropolitan area, then [X] will live her father and spend time with her mother. Something tells me, I could be wrong, that that is not going to happen. I suspect that the more realistic scenario is the one that is set out in order (4) and that is that the mother returns to the eastern suburbs, in which case the father would spend time with [X] on the following basis: on a fortnightly basis during the first week of the fortnight, 10 am Thursday to 5 pm Friday. During the second week of the fortnight from 10 am Thursday until 10 am on the following Monday.
The father might be disappointed that I have not actually ordered more time. It goes back to the comment I made just a few minutes ago. I do not think these changes can justify significant changes for [X]. The whole rationale of in effect requiring [X] to come back to Sydney is so that we go back to where she was before these changes, so that is why there has not been a dramatic change there.
Could I specifically refer the parents to order (6). It is a worry that the parents cannot agree whether it should be day care or pre-school. I have made an order that says the parents get some expert advice about it and Ms B may be one of the best people to give that, and if she makes a recommendation and you cannot agree, you have got to go along with what she says for [X]'s sake.
I have managed to find two days to hear this in June, so 18 June for two days and I have made various directions there. I stress to the parents this is a temporary order. It is an interim order and neither of you should read into my comments anything about the likely outcome at the final hearing. When we deal with this at the final hearing it will be with the benefit of much better information, especially expert evidence about the impact on your daughter of these potential changes. Fortunately we are not talking about a long time, especially by reference to the standards of this Court.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 19 August 2009
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