Reynolds and Elias and Anor
[2015] FCCA 3361
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REYNOLDS & ELIAS & ANOR | [2015] FCCA 3361 |
| Catchwords: FAMILY LAW – Relocation − children not biological children of parties − relevance of possibility of re-establishing relationship with biological mother − whether risk of the children losing relationship with the stepmother if they relocate. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DA |
| Goode & Goode [2006] FamCA 1346 [2006]FLC 93-286 |
| Applicant: | MS REYNOLDS |
| First Respondent: | MR ELIAS |
| Second Respondent: | MS ELIAS |
File Number: | DGC 549 of 2014 |
| Judgment of: | Judge Phipps |
| Hearing date: | 11, 12 & 13 May 2015 |
| Date of Last Submission: | 13 May 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gates |
| Solicitors for the Applicant: | Bona Fide Lawyers |
| Counsel for the First Respondent: | Mr McCloskey |
| Solicitors for the Second Respondent: | Christine J Shanahan No appearance |
ORDERS
That the applicant and the first respondent have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2006.
That the children live with the first respondent.
The first respondent is restrained by injunction from removing the children’s place of residence outside the Commonwealth of Australia.
That the children spend time with the applicant as follows:
(a)Each alternate weekend from after school Friday until the commencement of school Monday or commencement of school Tuesday in the event Monday is a non-school day;
(b)Each Wednesday from after school until commencement of school Thursday;
(c)For one half of all school term holidays at times to be agreed and in default of agreement the first half in odd numbered years commencing at 9.00am on the first Monday of the holidays and concluding at 9.00am on the following Monday and the second half in even numbered years commencing at 9.00am on the second Monday and concluding at commencement of school on the first Monday of term;
(d)For one half of the long summer/Christmas holidays at times to be agreed and in default of agreement for the first half in odd numbered years commencing at 9.00am the Monday after term ends and concluding at 9.00am on the middle day of the holidays and for the second half in even numbered years commencing at 9.00am on the middle day of the holidays and concluding when school returns;
(e)From 5.00pm the day before Mother’s Day until the commencement of school the Monday after Mother’s Day;
(f)On the applicant’s birthday from conclusion of school or 3.00pm the day before the birthday until commencement of school the day after the birthday or 9.00am if not a school day;
(g)For two hours on the children’s birthdays in the event they fall on a school day and four hours in the event they fall on a non-school day at times to be agreed and in default of agreement from after school until 5.30pm on a school day and from 10.00am until 2.00pm on a non-school day;
(h)In 2015 and each alternate year thereafter from 4.00pm Christmas Eve until 4.00pm Christmas Day;
(i)In 2016 and each alternate year thereafter from 4.00pm Christmas Day until 4.00pm Boxing Day;
(j)From 6.00pm the Thursday before Good Friday until 9.00am the Tuesday after Easter Monday in 2016 and each alternate year thereafter;
(k)By telephone each Monday and alternate Friday between 7.00pm and 7.30pm with the applicant to initiate the calls;
(l)Such further or other times as may be agreed in writing.
That notwithstanding paragraph 4, the children spend time with the first respondent at times as follows:
(a)From 5.00pm the day before Father’s Day until commencement of school the Monday after Father’s Day;
(b)On the first respondent’s birthday from conclusion of school or 3.00pm the day before the birthday until commencement of school the day after the birthday or 9.00am if not a school day;
(c)In the event the children’s birthdays fall on a day they would otherwise be in the applicant’s care, for two hours on the children’s birthdays in the event they fall on a school day and for days they fall on a non-school day at times to be agreed and in default of agreement from conclusion of school until 5.30pm on a school day and from 10.00am until 2.00pm on a non-school day;
(d)In 2015 and each alternate year thereafter from 3.00pm Christmas Day until 4 00pm Boxing Day;
(e)In 2016 and each alternate year thereafter from3.00pm Christmas Eve until 4.00pm Christmas Day;
(f)From 6.00pm the Thursday before Good Friday until 9.00am the Tuesday after Easter Monday in 2017 and each alternate year thereafter.
That time pursuant to paragraphs 4(a) & (b) is suspended during all school and summer holidays with alternate weekend to commence after the holidays using the same pattern of weekends that would occur had the holiday period not occurred.
That the children spend time with and communicate with the second respondent as agreed between the applicant and the second respondent or as agreed between the first respondent and the second respondent.
That the applicant and first respondent do all things necessary to authorise any schools which the children may attend to provide to the other all school information including reports, newsletters, school photographs, invitation to parent teacher interviews, concerts, special and sporting event occasions and other events which a parent would normally attend.
That the applicant and first respondent inform the other of any significant injury or illness suffered by the children while in their care.
That the applicant and first respondent authorise any medical practitioners treating the children to discuss the treatment with the other party.
That the applicant and first respondent keep the other informed of any change to the residential address or contact telephone number and advise of any such change within 48 hours of the change occurring.
IT IS NOTED that publication of this judgment under the pseudonym Reynolds & Elias & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 549 of 2014
| MS REYNOLDS |
Applicant
And
| MR ELIAS |
First Respondent
And
| MS ELIAS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The application concerns two children X born (omitted) 2005 aged 10 and Y born (omitted) 2006 aged nine. The second respondent is the biological mother of both children. She has taken no part in the proceedings. The first respondent is the biological father of Y and is named as the father on X’s birth certificate but he is not the biological father. He lived with the second respondent from prior to the time of X’s birth and he is the only father she has known. The applicant lived with the father and the children from (omitted) 2009 until May 2014. The children call her “mum” or “mummy”.
Use of the terms “father”, “mother”, “step father” and “step mother” would be confusing so I will refer to the parties as the applicant, first respondent and second respondent.
Proposals
The mother in her outline of case put alternative proposals, while the first respondent is in Australia, and if the first respondent relocated to (country omitted). If the first respondent remained in Australia then she proposes that the children should live with him. If the first respondent relocates to (country omitted) she proposes that the children live with her.
The first respondent’s case was conducted on the basis that if he was not permitted to relocate to (country omitted) he would remain in Australia with the children.
The applicant proposes that, should the first respondent remain in Australia, she and the first respondent have equal shared parental responsibility for the children and that the children live with the first respondent. She proposes the children spend time with her:
a)Each alternate weekend from after school Friday until the commencement of school Monday or commencement of school Tuesday in the event Monday is a non-school day;
b)Each Wednesday from after school until commencement of school Friday;
c)For one half of all school term holidays at times to be agreed and in default of agreement the first half in odd numbered years commencing at 9.00am on the first Monday of the holidays and concluding at 9.00am on the following Monday and the second half in even numbered years commencing at 9.00am on the second Monday and concluding at commencement of school on the first Monday of term;
d)For one half of the long summer/Christmas holidays at times to be agreed and in default of agreement for the first half in odd numbered years commencing at 9.00am the Monday after term ends and concluding at 9.00am on the middle day of the holidays and for the second half in even numbered years commencing at 9.00am on the middle day of the holidays and concluding when school returns;
e)From 5.00pm the day before Mother’s Day until the commencement of school the Monday after Mother’s Day;
f)On the applicant’s birthday from conclusion of school or 3.00pm the day before the birthday until commencement of school the day after the birthday or 9.00am if not a school day;
g)For two hours on the children’s birthdays in the event they fall on a school day and four hours in the event they fall on a non-school day at times to be agreed and in default of agreement from after school until 5.30 pm on a school day and from 10.00a.m. until 2.00pm on a non-school day;
h)In 2015 and each alternate year thereafter from 4.00pm Christmas Be until 4.00pm Christmas Day;
i)In 2016 and each alternate year thereafter from 4.00pm Christmas Day until 4.00p.m. Boxing Day;
j)From 6.00 pm the Thursday before Good Friday until 9.00 a.m. the Tuesday after Easter Monday in 2016 and each alternate year thereafter;
k)By telephone each Monday and alternate Friday between 7.00pm and 7.30pm with the applicant to initiate the calls;
l)Such further or other times as may be agreed in writing
The first respondent does not propose that the existing order for joint shared parental responsibility (described below) be discharged. He proposes that the children live with him and that he be permitted to relocate their residence to (country omitted). He proposes that while the children reside in the Melbourne area the children spend time with the applicant each alternate weekend from Friday until Sunday, half school term holidays and two weeks over the long summer holiday break with provision for the special occasions.
The first respondent proposes that upon he and the children relocating to (country omitted) children spend time with the applicant for a minimum of six weeks per year on school holidays, one week in each of the March and September school holidays, two weeks in the July and long summer holidays. He proposes the children spend additional time with the first respondent if he travels to Australia during other times during the year and the time with the applicant if she travels to (country omitted). He proposes liberal telephone and electronic communication.
Background
The applicant was born on (omitted) 1982 and is 33. The first respondent was born on (omitted) 1979 and is 36. The second respondent was born on the (omitted) 1981.
The first respondent and second respondent met in early 2005 when the second respondent was pregnant with X. The first respondent says the father is a person the second respondent met in (country omitted), Mr S. The first and second respondents commenced cohabitation in (omitted) 2005 and X was born on (omitted) 2005. The first respondent is registered as the father on her birth certificate.
The first and second respondent separated for three months and reconciled in March 2006. Y was born in (omitted) 2006. The first and second respondents married on (omitted) 2007 and separated in September 2007. The children remained living with the second respondent.
From September 2007 until early 2008 the children spent equal time with each of the first respondent and second respondent. In early 2008 the children lived with the first respondent and spent infrequent time with the second respondent. In June 2009 the second respondent left Victoria then returned on (omitted) 2009 and again began spending time with the children.
On (omitted) 2009 the applicant and first respondent commenced living together and, as I described in more detail later in these reasons, the applicant became the children’s primary carer.
On 29 September 2010 the second respondent commenced children’s proceedings in the then Federal Magistrates Court of Australia naming the first respondent as respondent. Final orders by consent on 2 March 2011 provide for the children to live with the first respondent and spend time with the second respondent as agreed. In early 2014 the applicant and first respondent as applicants and the second respondent as respondent applied to the Family Court of Australia for consent orders. The Consent Order made on 5 March 2014 provides for the applicant and first respondent to have joint parental responsibility for the children, for the children to live with the applicant and first respondent and spend time with the second respondent as agreed. The making of these orders is described in more detail later in these reasons.
In March 2014 (according to the first respondent), or on 14 April 2014 (according to the applicant) the applicant and first respondent separated under one roof. The first respondent travelled to (country omitted) with the children in April 2014.
The applicant left the home on Sunday 11 May 2014 leaving the children with the first respondent. The first respondent had been away at a (hobby omitted) tournament from Thursday evening and returned on Sunday afternoon. The applicant collected him at the train station and had already made arrangements to move. She says there was agreement that the children would spend equal time with each of the applicant and first respondent. The first respondent says that the applicant proposed such an arrangement but denies there was any agreement.
The husband ceased his employment on (omitted) 2014. He did not tell his employer of this but stopped attending.
The applicant says her reason for not taking the children with her was that she knew the first respondent would kick up a fuss and she did not want to subject the children to it. She said she said to the first respondent that she would collect the children on Wednesday which she believed was in accordance with the agreement they had made.
The applicant attended at the former home but the children and first respondent had moved with the children to a friend’s house. The applicant was unable to contact the first respondent. He says she did not telephone him, but the clear inference is that he was avoiding her. The first respondent’s subsequent actions show that he was attempting to keep the children away from the applicant.
The applicant commenced these proceedings on 19 May 2014. She learnt that the children were back at school on 21 May 2014. She attended the school and was advised that the first respondent had told the school that she was to have nothing to do with the children. She produced the orders of 5 March 2014 and was then told she was welcome to attend the school.
The applicant attended the children’s school on Friday, 23 May 2014 and Tuesday, 27 May 2014 to see the children. An altercation occurred on 27 May 2014 with the applicant alleging the first respondent physically restrained the child X running over to greet her and the first respondent saying that he directed both girls towards the car because he did not want them embroiled in an adult argument.
On 28 May 2014 the first respondent applied for and obtained an interim intervention order against the applicant. The evidence in this case shows that there was no risk to the first respondent or the children and again the inference is that this was part of the first respondent’s attempt to keep the children away from the applicant. At that time there was an order of the Family Court of Australia for the applicant and the first respondent to have equal shared parental responsibility for the children and for the children to live with them. The father was away from the home leaving the children with the applicant from Thursday night until Sunday afternoon or evening on 11 May 2014. He cannot have had any concern for the children with the applicant.
Correspondence between solicitors reached agreement for the children to spend half the school holidays commencing Monday 30 June 2014 with the applicant. Apart from the occasions at school they had not seen the applicant since 11 May 2014.
Consent orders on 21 July 2014 provide for the children to live with the first respondent and spend time and communicate with the applicant each Wednesday from after school until the commencement of school each Thursday, each alternate Friday from after school until the commencement of school on Monday and for the first half of all Victorian school term holidays.
Consent orders on 6 October 2014 provide for the children’s time with the applicant at Christmas and then week about during the summer holidays.
Y did not spend time with the applicant from 12 October until 3 December 2014. The reason for this is dealt with later in these reasons.
The applicant works as a (occupation omitted) with Mr N, and was at the time of the separation. She commenced living with Mr N in June 2014. He has two children who spend five nights a fortnight with him. The first respondent now lives with Ms E.
Children’s provisions
Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that the best interests of the children are the paramount consideration in making parenting orders. The best interest considerations are contained in s.60CC. The objects of the Act and the principles to be applied are contained in s.60B. The presumption contained in s.60DA that it is in the best interests of children for the parents to have equal shared parental responsibility does not apply here because the issues are between parties where only one is a parent of one of the children.
The first respondent applies to relocate the children’s residence to (country omitted). The children’s best interests remain the paramount consideration. The pathway through the legislation set out in Goode & Goode [2006] FamCA 1346 [2006]FLC 93-286 must be followed but given the children’s parentage that pathway leads directly to the best interest considerations. Relevant to the relocation application is that the best interests of the children is the paramount consideration but not the only consideration. The desire of the first respondent to relocate must be taken into account.
First respondent’s relocation
The first respondent was born in (country omitted). He wishes to relocate there with the children. He would have the support of his mother, Ms K, his sister Ms J and his brother Mr R. His stepfather, Mr P runs the family business trading as (omitted) and has offered to employ the first respondent. The first respondent proposes to live with his mother and Mr P. Mr P gave evidence, and I accept that he intends to employ the first respondent if he does relocate to (country omitted). I accept that the first respondent’s mother’s house is large enough to accommodate the first respondent, his partner and the two girls and that his mother and Mr P will have them.
The first respondent has re-partnered with Ms E. They commenced living together and the latter part of 2014. She has a relationship with the children. She says that she intends to move to (country omitted) with the first respondent and the children if they do go. She is a (occupation omitted) and considers that she will be able to obtain employment in (country omitted).
Best interest considerations
The first of the primary considerations is the benefit to the children of a meaningful relationship with each parent. Parent is not defined in the Family Law Act 1975 (Cth) and so has its ordinary meaning of biological parent. The second respondent is the biological mother of both children while the first respondent is the biological father of Y. The children have not seen the second respondent since 2009. The hearing was conducted on the basis that the issues are between the applicant and first respondent which is understandable given that they are the only active parties. Nonetheless, the possibility of a relationship between the children and their biological mother, and the possible benefit to them cannot be ignored.
Both children regard the applicant as their mother, as “mum” or “mummy”. Whether they have any memory of their biological mother was explored briefly by Ms S with Y. Ms S asked Y if she remembered her other mum and she said, “You mean Ms Elias? No I’ve forgotten what she looks like and what she sounds like.” Ms S does not record any similar conversation with X. Y knows of her mother and therefore it is probable that X, being older, has at least a similar memory of her biological mother.
Ms S says that the second respondent had agreed to attend for the preparation of the report but that she did not turn up on the day of the interviews on 6 August 2014. Consequently Ms S says the information for the report was obtained from the applicant and first respondent.
The first respondent is the biological father of Y and therefore the first of the primary considerations is relevant to her. X knows nothing of her biological father and does not know that the first respondent is not her biological father. As Ms S says the first respondent is not X’s biological father but has been her father in every other sense throughout her life from the time of her birth. Ms S also says that the applicant has been the stepmother of both children since toward the end of 2009 and has been the children’s mother in every sense since they have lived with her.
The relationship of the two children with the first respondent cannot be considered separately. That the first of the primary considerations applies to Y but not X must be considered in this context.
No evidence is relevant to the second of the primary considerations the need to protect the children from harm.
There is some evidence of the children’s views, the first of the additional considerations. The first respondent says both children have told him they want to go to (country omitted). Ms S says that in the circumstances where the children are in the middle of entrenched conflict it is likely that that they going to say to each parent what they think the parent want to hear. There is also evidence that X has said she does not want to go.
The best evidence comes from Ms S’s interviews with the children in August 2014. It is worth setting out several paragraphs in relation to X:
X was asked how she would feel if it is decided that they live with Mr Elias and spend time with Ms Reynolds as they currently do and she said, “Really happy ‘cos I miss mum.”
X was asked how she would feel if it is decided that they live with Ms Reynolds and spend time with Mr Elias on alternate weekends and on Wednesdays overnight and she said, “Happy as.”
X was asked how she would feel if they went to (country omitted) to live with Mr Elias and would spend school holidays with Ms Reynolds and she said, “Not happy. If I lived in (country omitted) forever I’d be really upset. Now dad’s saying we are going to move there.”
When X was asked if there was anything further she would like to tell the Judge she said, “We should keep the days how it is and we shouldn’t move to (country omitted).”
Ms S asked Y has she would feel about living with the first respondent and spending time with the applicant and how she would feel living with the applicant and spending time with the first respondent her responses were “Happy” and “Happy as well”.
Ms S asked Y how it was having their holiday in (country omitted) and she said it was fun and how Y would feel if they moved to (country omitted) and spend time with the applicant in school holidays and she said “Fun”.
Of the children’s views Ms S says in her report:
While X presents as quite mature for her age, neither she nor Y have the experience or maturity enough to make informed decisions at this time so other factors also need to be taken into account. In addition, X and Y have no experience of living in (country omitted) so they would have little concept of what this would mean for them. X and Y were in (country omitted) in April 2014, but they were on a holiday so this is quite a different experience of relocating leaving behind all they have known to move into unknown circumstances.
The children’s views about moving to (country omitted) must be given some weight but qualified in the way Ms S says. What was said by the children, particularly X, is relevant to her relationship with the applicant.
The next additional consideration is the nature of the children’s relationship with each parent and other persons (including any grandparent or other relative of the child).
Again, the reference to parent is biological parent. The children have no relationship with their biological mother except that they know of her existence. Should they meet again the extent to which they might remember more of her is uncertain. X, being older, may have more recollection.
Both children have lived with the first respondent for the whole of their lives except for a short period of time when they lived with their biological mother while spending time with the first respondent. He is, as Ms S has observed, the only father X has known.
The children’s relationship with the first respondent is not disputed. He has been the constant in their lives and the applicant agrees that the children should live with him. The dispute concerns parental responsibility and whether the father can relocate the children’s residence to (country omitted).
The children’s relationship with the applicant is strong. As Ms S puts it, correctly, the applicant has been the children’s mother in every sense since towards the end of 2009. The applicant’s case is that she was the children’s primary carer from then until the separation in May 2014.
When the applicant and first respondent and the children commenced living together the children’s childcare arrangements were moved to a centre in (omitted) about 50 metres from the applicant’s workplace. She worked as a (occupation omitted). The first respondent worked as a (occupation omitted) in (omitted) from Wednesday to Sunday with Mondays and Tuesdays off. He cared for the children on Mondays and Tuesdays and they went to childcare for the rest of the week.
The applicant says that on Wednesdays, Thursdays and Fridays she would drop the children at child care and then pick them up to 5.00pm when she finished work. She would drive them home give them dinner a bath, bedtime story and put them to bed. The first respondent would arrive home after work at around 8.30pm and later on Fridays and Saturdays. The husband acknowledges that the records from the childcare centre which show that except on a few occasions the applicant delivered and collected the children are correct, and similarly later on for school. The applicant says that she organised school holiday activities and I accept that as being correct.
Similarly, while the first respondent attended some medical appointments, I accept that the applicant was largely responsible for organising and taking the children to them.
The application for consent orders in which the applicant and first respondent in this case are the applicant and Ms Elias, the children’s mother, is the respondent was filed on 27 February 2014. Filed with it is a statement of agreed facts dated 24 February 2014 signed by all three parties. It says in part:
Due to her personal circumstances, Ms Elias has elected not to pursue a relationship with the children and has not spent time with or communicated with the children since approximately October 2010.
Mr P has re-partnered with the second named Applicant, MS REYNOLDS (“Ms Reynolds”), and has lived in a de facto relationship with Ms Reynolds since (omitted) 2009. Ms Reynolds has assumed the role of primary care giver to X and Y. Ms Reynolds is primarily responsible for dropping off and collecting the children at their school, taking them to swimming and dancing lessons and other extracurricular activities, taking them to doctors and other health professionals, cooking their meals, buying clothes and other necessities for them and attending to their physical and emotional needs. Ms Reynolds has formed a very close and loving relationship with the two children.
Ms Reynolds has experienced some difficulties in managing her role as caregiver to the children as a result of the fact that she is not recognised as having parental responsibility for the children. For example, she cannot authorise medical treatment for the children nor is she able to sign school forms or enrolment forms in respect of the children.
The application and statement were prepared by Ms Joanne Walters of MacPherson and Kelly. She gave evidence. She is a solicitor specialising in family law with 17 ½ years’ experience.
The first respondent says that MacPherson and Kelly were the applicant’s solicitors. He says all arrangements to draw the documents were done between the applicant and the solicitors. He says that the papers he signed were only for the applicant to be able to sign medical and school forms in cases of emergency. He says the applicant had presented him with the papers while they were still in a relationship. He claims to have signed the documents without reading them.
The applicant says the first respondent signed the application for consent orders and the statement of agreed facts in the presence of Ms Walters. The first respondent says that when Ms Walters asked if he had read and understood the documents he replied “no”. He says her response was “I didn’t hear that”.
Ms Walters gave evidence and produced her file. She said she was acting for both the applicant and the first respondent. Instructions were given to her by the applicant. She sent the letter of engagement to both the applicant and the first respondent and it came back signed by both. She prepared the documents necessary which included the statement of agreed facts and an affidavit by each of the applicant and first respondent.
The relevant documents, the application for consent orders, affidavits and statement of agreed facts were all signed or executed on 24 February 2015 in the presence of Ms Walters at her office.
Attached to each of the affidavits is a statement of independent advice. Ms Walters said that the affidavits, including that of the first respondent, were affirmed before her. She said it was not just a signing but the proper process of affirming including asking the client whether they wanted to swear or affirm and explaining the difference. Both the applicant and first respondent elected to affirm. The affidavits include that of the first respondent which says he is the applicant, he has read the application and draft consent orders, the orders are agreed upon by all parties, he is aware of his right to obtain legal advice, and the matters in the application are true. The first respondent signed each page of the draft consent orders and he acknowledged he had read the relevant sections of the Family Law Act 1975 (Cth).
Ms Walters says she gave both the applicant and first respondent the independent legal advice. She saw no conflict of interest doing so. There was a potential conflict down the track if the parties separated and she said that if that happened clearly she could no longer act for them.
Ms Walters says that the first respondent did not lead her to believe that he did not understand what he was signing. She says that if he had she certainly would stop the process and make sure he did. She says she took the parties through the documents and satisfied herself that they both understood the content of the application for consent orders and the effect of the orders. She says she was satisfied that they both did understand.
As to the suggestion that the first respondent did not read the consent orders and did not read the statement of agreed facts she said:
Well now,, unless he was-unless he completely tuned me out for the-the duration of the appointment, because we-I always go through documents with clients
It’s my standard practice. I am-I pride myself on being a thorough lawyer, and I-especially when I’m meeting someone for the first time, I wouldn’t just presume that they had read what they were signing
The first respondent’s statement that when asked by Ms Walters had he read and understood the documents he said “no” and that she and her reply was “I didn’t hear that” was put to Ms Walters. She said that was not something she would do.
In cross examination she was asked if she was sitting at a desk with the documents in front of her and with the applicant and first respondent on the other side of the desk. She said she was sitting at the head of the table and they were sitting to her right down the side of the table and she had the documents facing them and went through them together page by page.
Ms Walters is an experienced family law solicitor. Her file note shows that the attendance was 35 minutes and records that she went through the documents. She has a specific note “Explained the effect of orders”. An attendance of 35 minutes is consistent with Ms Walters’ evidence that she went through the documents and explained them. She is an experienced family lawyer. I do not accept the first respondent’s evidence that he told Ms Walters he did not understand and that she said “I didn’t hear that”. I accept Ms Walters’ evidence that she went through the documents and made sure that both the applicant and first respondent understood them.
The Statement of Agreed Facts is quite specific about the applicant’s role “Ms Reynolds has assumed the role of primary care giver to X and Y.” The first respondent says that he thought the orders were so that the applicant could sign school documents and medical documents and that was all. If the statement said no more than that the applicant had assumed the role of primary care giver what the first respondent says may be consistent. The respondent cannot be expected to understand the significance of “primary care giver” in the context of an order under the Family Law Act 1975 (Cth). But, the statement then goes on to give specifics:
“Ms Reynolds is primarily responsible for dropping off and collecting the children at their school, taking them to swimming and dancing lessons and other extracurricular activities, taking them to doctors and other health professionals, cooking their meals buying clothes and other necessities for them and attending to their physical and emotional needs”
The first respondent could not have misunderstood the meaning of this part of the statement. It refers to specific activities, normal events in the life of a child and physical and emotional needs. The statement is consistent with other evidence about the extent to which the applicant was involved in caring for the children.
The first respondent, when interviewed by Ms S said that “Ms Reynolds was a good mother: that she took them on, for which he is thankful for.” Again, this is consistent with the detail in the Statement.
The (omitted) Primary School file for the children provides some significant insight into the way X sees the applicant. Under February 2015 the notes record “X hit Mr K in the face repeatedly, saying “I want mum.” She explained later that she is upset with dad and took it out on Mr K.”
The note for the 4 February is:
feeling sick in class and crying. Reported wanting medicine from Mum: dad gives them medicine that makes her feel sick. Also talked about mum saying expensive schools are better-dad took her from old expensive school because he couldn’t afford it and now she wasn’t learning as much. Also worried about possible move (country omitted) with the father and that this will mean she never sees mum again. Discussed keeping busy and not just sitting and feeling miserable.
The note for 6 February refers to the applicant dropping off money for an icy pole for X. X went outside then came back to tell the applicant something and became very upset when she had already left. She became happier but again started crying for mum when retelling the story.
The note for 23 February says that she is staying with Mum for a few weeks because dad knew she wanted to “seems happier.”
The note for 22 April says “X complained of feeling sick and wanted to go home. Was seeing Mum”.
All of this indicates the closeness of the relationship between the applicant and X.
The notes record that in October 2014 the first respondent discussed whether Y could see a psychologist. He says that Y no longer wants contact with the applicant and is anxious about spending time with her. The note says that both children were referred to the Chaplain. The Welfare Team decided this was the best option for the girls. The note also records the applicant had been working at the school with the parents’ club and Y was anxious that “mum” is going to take her home.
This material was put to Ms S. She said she thinks that X, not having her biological mother available to her, has more than likely suffered the effects of feeling rejected by her biological mother. She described that as a huge issue X faces. She said that probably the thought of losing the applicant may resurface all those feelings about losing her biological mother. She considered this quite complex and suggested X requires ongoing therapy. She said probably both girls do need ongoing therapy to help them resolve issues about losing their biological mother and what is meant in the thought of possible relocation to (country omitted). She said that may bring back a lot of those feelings and she considered best for both girls to have some ongoing therapy.
In October 2014 Y stopped seeing the applicant for some little time. The applicant filed a contravention application. The first respondent says it was because Y did not want to go.
The first respondent took Y to the (omitted) Clinic on 16 October 2014. The doctor’s note said that they came in for a mental health plan for counselling. The notes say that Y is concerned about the partner of the applicant.
Y was referred to (omitted) Counselling and Psychology. A letter from Ms E, a child family psychologist to the doctor contains a report. The treatment was Cognitive Behaviour Therapy. It says that after a lot of exploration Y’s feelings and attitude towards spending time with the applicant changed. The first respondent advised the psychologist after the fourth session Y did not want to continue counselling because she was happy to see the applicant again.
Following this Y resumed spending time with the applicant and remains a happy child.
Other evidence shows that Y’s concern was with the applicant’s new partner. Noteworthy is that Y still refers to the applicant as “mum”.
Ms S regards the children’s relationship with the applicant as important. She considers that they have an established relationship with the applicant and can maintain a relationship by spending time with her during school holidays.
The evidence satisfies me that from November 2009 until May 2014 the applicant was the children’s primary carer. She is the only mother the children have. The children’s relationship with her is important.
The children have a relationship with their maternal grandparents and have seen them regularly. The first respondent went to a (hobby omitted) tournament in June and left the children with their maternal grandparents. Thus, while the children do not currently have a relationship with their mother they do with their mother’s family.
The third of the additional considerations may be summarised as the extent to which each of the child’s parents has participated in the children’s lives. The reasons so far show that each parent has to a significant extent.
The next consideration is the extent to which each of the parents has fulfilled the parents’ obligation to maintain the child. The applicant pays $5,000 a year child support. Her income is $80,000 per year.
The next consideration is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom she has been living. Counsel for the applicant submitted that this case is essentially one concerning this consideration, that is the consideration in s.60CC(3)(ii). It is a significant consideration here in looking at the question of relocation.
The first respondent’s proposal is that the children spend time with the applicant during school holidays. If they live in (country omitted) it means air travel backwards and forwards. Each party put forward internet searches of costs of the fares. The first respondent produced searches which if those fares were available would mean an annual cost of about $3,600 for four return flights each year. The applicant put forward figures which showed an annual cost of about $10,000. The parties disputed the extent to which the children could travel as unaccompanied children with airlines that have programs for such travel. The only conclusion I can come to is that the probable cost will vary between these two figures.
The applicant’s income is $80,000. She lives with her partner Mr N and works in his business. His income is not in evidence but the inference is that it is a reasonable income probably more than the applicant’s. The applicant and Mr N have only themselves to support. Mr N has two children spending time with him five nights a fortnight. The applicant pays $5,000 a year child support. The first respondent will have employment in (country omitted) and while he will contribute to the cost of his mother and stepfather’s household costs, he will not have to pay rent for independent premises unless he moves. The evidence shows that between them the parties should have the funds to pay the fares. There are some risks. Should the first respondent lose his employment with Mr P then his financial situation is uncertain.
The unknown part of the payment for airfares is the reliability of the first respondent’s employment in (country omitted). He did work with Mr P for a time in Australia, and then Mr P ceased his operations in Australia. If the employment with Mr P does not work out then the first respondent’s employment prospects are unknown. He does not have employment here in Australia, his difficulty being that he has the care of the children.
Another unknown is whether the first respondent’s living arrangements in (country omitted) will remain satisfactory. If living with his mother and stepfather does not work out then he will have to have other arrangements. He and Ms E have been together for some 12 months but the father has two failed relationships behind him. There must be uncertainty about that relationship particularly given that Ms E is leaving Australia, her home country, to go to (country omitted).
An important aspect of this consideration is the willingness of the first respondent to promote the children’s relationship with the applicant. Immediately after the separation in May 2014 he actively discouraged the children having any relationship with the applicant. The children did not see the applicant until after she had commenced these proceedings and lawyers were involved. The first respondent puts his attitude down to the immediate effects on him of the separation and now says that he recognises the importance of the children’s relationship with the applicant.
Ms S assessed the first respondent as recognising the importance of the children’s relationship with the applicant and the need to promote it. Once the orders were made in July 2014 the children have spent time in accordance with those orders except for the break with Y. The evidence is that after the initial period after the separation the first respondent has accepted the children have a relationship with the applicant. While that is so he does not accept that while he and the applicant were living together the applicant was the children’s primary carer. She was the children’s primary carer. There are doubts about his commitment to maintaining the children’s relationship with the applicant. If living in (country omitted) presents more difficulty that he anticipates maintaining the children’s relationship with the applicant might not be a priority.
A consideration is that if the first respondent does not comply with spend time orders then the applicant would have to take steps to enforce the orders in (country omitted). The children’s habitual residence would be in (country omitted) so it is unlikely the Hague Convention would apply.
While the first respondent has been complying with the orders for the children to spend time with the applicant, and Ms S considers he recognises the importance of the children’s relationship with the applicant, I have to take into account the difficulty and cost in spending time brought about by the children being in (country omitted) even although the best interests consideration relevant to this does not apply because it only refers to parents.
The combination of all these factors I have referred to lead to the conclusion that there is a risk that the children might not spend all or even any of the ordered time with the applicant if they are in (country omitted). If that happened they would lose their relationship with the person they currently regard as their mother.
The other two considerations are the capacity of parents and other persons to provide for the needs of the children. The first respondent has the major care of the children and they are well cared for. On the other hand, after school activities, (hobby omitted) and swimming are provided by the applicant. This is specifically relevant to the applicant’s proposal that the Wednesday overnight be extended to the Thursday overnight which will enable these activities to be extended over two nights.
I have to take into account the father’s desire to move to (country omitted). Part of this is to do with the care of the children. (country omitted) is where he comes from and his family is there. He says he will be able to work because his family will assist in taking the children to school and care of the children while he is working. He does not have any family support in Australia. He does not have employment in Australia. He has applied for many jobs but not obtained one. His difficulty is that he is caring for the children. Being able to work would mean he was better able to provide financial support for the children.
Conclusion
The children’s best interests are served by requiring that they remain in Australia. This will ensure that they maintain a relationship with the person they regard as their mother. They do not have a relationship with the person who is their biological mother, but the possibility of them reconnecting with her in the future cannot be ignored. The only evidence of X’s father is the belief of the first respondent about his identity. The children’s mother has not seen X’s father since well before X’s birth. The possibility of X establishing a relationship with her father is not impossible but it is unlikely. He is not named as the father on her birth certificate. Thus, there is some possibility of X establishing or re-establishing a relationship with one of her parents, her mother. The possibility of the children establishing a relationship with their mother would be considerably lessened if they are in (country omitted).
They currently have a relationship with their maternal grandparents. If they lived in (country omitted) they might see those grandparents during their time in Australia with the applicant but the possibility of that happening would be reduced. Living in (country omitted) would give them a day-to-day relationship with their paternal grandmother and paternal aunt and uncle. They have met them on holidays and so the relationship would be that much stronger.
I accept Ms S’s evidence that the children will maintain their relationship with the applicant if they see her during school holidays. I have referred to the risk that they will not. Even if they do the relationship will not be as strong as the one where they see the applicant weekly. I note again that when X was in some distress at school it was her “mum”, the applicant, whom she wanted.
The father’s position will improve and his ability to care for the children will improve should he move to (country omitted), but there are risks to that improvement. When the father’s wish to move to (country omitted) and his reasons for doing that are balanced against the considerations relevant to the children’s relationship with the applicant the conclusion is that the children’s best interests are served by remaining in Australia.
The applicant and the first respondent should have joint responsibility for major decision making in relation to the children. The first respondent applies for the sole parental responsibility but the applicant’s relationship with the children and her understanding of their needs makes it appropriate that she share that responsibility.
The applicant’s proposal includes increasing the children’s time with her from overnight on Wednesday each week to overnight on both Wednesday and Thursday that is from Wednesday after school until Friday before school. With the three nights on alternate weekends this would be seven nights each fortnight. In one week the children would spend Wednesday night to Monday morning with the applicant and in the next week Wednesday night to Friday morning.
Ms S recommends the current time continue, that is alternate weekends and overnight on Wednesdays. The mother’s proposal for increasing the time is so that she can spread the children’s extracurricular activities over two nights so that they do not have two activities, currently (hobby omitted) and swimming, on the one night. That is not sufficient to increase the time to equal time.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 18 December 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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