Rogers and Lenard
[2010] FMCAfam 764
•9 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROGERS & LENARD | [2010] FMCAfam 764 |
| FAMILY LAW – Children – Interim parenting orders – relocation – two children living with the Mother – unilateral decision by Mother to relocate to Melbourne – whether Mother should return the children to live in Sydney – best interests of the children. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA Crimes (Sentencing Procedure) Act 1999 (NSW), s.10 |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 |
| Applicant: | MR ROGERS |
| Respondent: | MS LENARD |
| File Number: | SYC 1585 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 July 2010 |
| Date of Last Submission: | 7 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Sweeney Tiggemann |
| Counsel for the Respondent: | Ms Nash |
| Solicitors for the Respondent: | Carew Counsel Pty Ltd |
ORDERS UNTIL FURTHER ORDER
That the Respondent Mother is to do all things necessary to return the children [X] born [in] 2003 and [Y] born [in] 2005 to reside in the Sydney metropolitan area within fourteen (14) days.
That the Father and the Mother are to have equal shared parental responsibility for the said children.
That the said children are to spend time with the Father from 3:00pm on Friday 9 July 2010 to 3:00pm Friday 16 July 2010 at the home of the paternal grandparents Ms R and Mr R at [address omitted] in the State of New South Wales.
For the purpose of Order 3 above the Mother is to deliver the said children to the Father at 3:00pm on Friday 9 July and the Father is to return the children to the Mother in the foyer of the Court at 97-99 Goulburn Street Sydney or such other place as the parties shall agree on Friday 16 July 2010.
During the time that the children spend with the Father as set out in Order 3 above the Father is to ensure that the children are provided with a bedroom which they are to share with no other person but each other.
The Father and Mother are to do all things necessary to re-enrol the said children at [S] Primary School at [address omitted] within twenty-one (21) days.
The Father is to file and serve an affidavit setting out the arrangements that he has made for accommodation of the children at his home within fourteen (14) days.
IT IS NOTED that publication of this judgment under the pseudonym Rogers & Lenard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1585 of 2010
| MR ROGERS |
Applicant
And
| MS LENARD |
Respondent
REASONS FOR JUDGMENT
Application
This is application is about the parties’ two daughters, [X] and [Y]. The Father seeks orders that the Mother should return them to live in Sydney, but the Mother wants them to stay living with her in Melbourne.
By her response, filed on 5th July 2010, the Mother seeks orders that the children should live with her and she should be permitted to relocate the children to Melbourne. She also seeks orders for a graduated scheme whereby the Father would see the children in Melbourne initially under supervision.
Background
The parties were married [in] 1993. They have been separated since 28th February 2009. Divorce proceedings have commenced but have not yet been finalised.
The Father was born [in] 1968. He is 42 years old. The Mother is 41 years of age, having been born [in] 1968. They are [occupation omitted] by profession.
There are two children of the marriage, both girls. [X] was born [in] 2003. [Y] was born [in] 2005. The children have been living with the Mother since the parties separated and the Father had been seeing them about four times a week.
There was an incident between the parties on 24th January 2010 which resulted in the Mother being charged with assault. The police obtained an ex parte Apprehended Domestic Violence Order against the Mother and she was required to attend Court on 4th February 2010.
The Mother was charged with assault occasioning actual bodily harm and pleaded guilty to that charge at [suburb omitted] Local Court on 15th April 2010. The Court found her guilty but without proceeding to conviction directed her to enter into a good behaviour bond for 6 months under s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. The Court did not make a final Apprehended Domestic Violence Order.
The Father commenced attending the children’s school, [S] Primary School at [suburb omitted], to spend time with the children.
The Mother deposed in her affidavit sworn 30th June 2010 that she took the children to Melbourne on 28th May 2010.[1] However, she continued to work as a [omitted] for two days a week. She deposed in her affidavit:
I am using the opportunity of the mid year school holidays to make enquiries to obtain a part time [omitted] position in Melbourne. In the meantime I have continued my two day position in Sydney which finishes on 2 July 2010. I am currently negotiating a casual position for 2-3 days per week with [workplace omitted].[2]
[1] Affidavit of Ms Lenard sworn 30 June 2010 at paragraph [25]
[2] Ibid at [31]
The Mother has since moved to Melbourne.
Issues
The issues are whether the children should reside in Melbourne until the final hearing or return to live in Sydney. There is also an issue about the Father spending time with the children. The Mother states that it should initially be supervised.
The Parties’ Proposals
The Father proposes that:
a)The children should return to live in Sydney and live with him in the former matrimonial home at [address omitted].
b)The children should return to their former school at [suburb omitted].
The Mother proposes that:
a)The children should continue to live with her in Melbourne;
b)The children should spend time with the Father:
i)From 12th to 16th July 2010;
ii)Each alternate Sunday in Sydney from 11:00am to 5:00pm; and
iii)On the other Sunday in Sydney from 11:00am to 5:00pm
c)The Mother would bring the children to Sydney on the Sundays when they are to spend time with him;
d)The Father would travel to Melbourne to see the girls; and
e)The cost of the airfares would be taken out of the proceeds of sale of the parties’ shareholdings.
The Mother also seeks that this proceeding be transferred to the Melbourne Registry of the Court.
Submissions on behalf of the Applicant Father
Ms Harris of counsel, who appeared for the Father, submitted that if the Mother does not wish to relocate back to Sydney with the children then the Father would want them to live with him.
Ms Harris submitted that the Mother had accommodation and employment in Sydney and the children were settled in school. However, the Mother decided to relocate the children to Melbourne, abandon her job in Sydney and enrol the children in a new school in Melbourne. She had relocated the children to Melbourne on 28th May and then returned to Sydney and worked until the conclusion of the school term. The Father had gone to the children’s school to see them, only to find that they had not been there all week.
It was further submitted that the Mother had not made any complaint about escaping from a violent environment in order to justify her move to Melbourne. The Father had been unsuccessful in speaking to the children on the telephone.
Whilst the Mother deposed that the Father had acquiesced to her taking the children in Melbourne (“He had agreed to us going and recently confirmed that I could go on 29 June 2010”[3]) the Father had already sought urgent orders to stop the children.
[3] Affidavit of Ms Lenard 30.6.2010 at [25]
Ms Harris also submitted that the paternal grandparents have had a significant relationship with the two girls, contrary to the Mother’s affidavit evidence.
Further, it was submitted that every step that the Mother had taken was unilateral. She was putting her needs above those of the children.
Whilst the Mother has deposed to the need for the Father’s time with the children to be supervised, at least initially, she has provided no evidence in support of that claim. It was submitted that the Mother was seeking to expunge the Father from the children’s lives. The proposal for the Father to spend a limited time with the children in Melbourne supervised by the Mother was “bizarre” and showed a complete lack of insight by the Mother.
Ms Harris submitted that the Father seeks an order for equal shared parental responsibility. The Court would be required to consider equal time, but the level of hostility between the parties would negative shared care. However, if the children were to spend substantial time with the Father that would be acceptable if the parties all lived in Sydney.
Further, it was submitted that the Father poses no risk to the children. The only incident of violence on record is by the Mother against the Father. There are no drug or alcohol issues, or mental health problems at this stage.
The Father, it is submitted, is living in a three bedroom townhouse. He intends to rent the third bedroom so that the girls, when they stay with him, would have their own room, which they would share. He proposes that the children should live with him and see their mother each weekend (if she is in Sydney) or live with the Mother and see him each weekend.
Submissions on behalf of the Respondent Mother
Ms Nash, who appeared for the Mother, submitted that when the Father brought his application in May, he sought that the children should live with the Mother and he would spend time with them. Since then, he had made two changes, and was seeking that they should live with him.
Ms Nash submitted that the Father had not properly thought out his proposal. The children have never stayed overnight with him and he has never sought block time with them. Not since February 2009 had the Father ever indicated that he had the capacity to rent the other room in the townhouse where he lives for the use of the children.
Since February 2009 the children have lived with the Mother. Ms Nash submitted that the Father regards the Mother as having the greater capacity to care for the children. The Father is not able to care for the children on Monday or Wednesday nights or on Saturday mornings. He has never sought time with them.
The Mother states that she can no longer do this (i.e. care for the children) without help. On occasions the Mother has flown the maternal grandmother up from Melbourne to help her.
Further, Ms Nash submitted that the Mother had been living in the former matrimonial home in [address omitted] with no certificate of occupancy. She has been coping there since February 2009 and does not want to do it anymore.
The Father could have brought an application at any time from February 2009 until the present time. The Mother believed that he had acquiesced in the move to Melbourne. It is only recently that the Father has changed his application.
Further, it was submitted that the children have always lived with the Mother. A change of school at this stage in their lives is not a dramatic step.
The Mother believed that the Father was not opposing the move. Her evidence is that many times the parties discussed living in Melbourne. Further, it was submitted that the Mother would move back to Sydney if she were ordered to. She would be the children’s primary caregiver.
Submission in reply
Ms Harris submitted that the Father had not been able to communicate with the children since the move to Melbourne. She described the Mother’s proposal for time spent by the children with the Father as “extraordinary”. She sought an order that the children should spend some time with the Father at the home of the paternal grandparents at [address omitted]. The children are far too young to fly unaccompanied between Melbourne and Sydney. The Father would file an affidavit about his accommodation.
The Relevant Law
In deciding whether to make a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in the child’s best interests by considering the matters set out in s.60CC of the Act. The primary considerations are set out in s.60CC(2):
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from abuse, neglect or family violence.
Additional considerations are set out in s.60CC(3) and include any views expressed by the child, subject to the child’s maturity and level of understanding, the nature of the child’s relationship with parents and other parents, including grandparents, the willingness and ability of each parent to encourage a close relationship with the other parent, the likely effect of changes in the child’s circumstances and the capacity of each parent and other person to provide for the child’s needs.
In any interim hearing the Court must consider whether the presumption in s.61DA of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility does apply (see Goode & Goode[4]).
[4] [2006] FamCA 1346; (2006) FLC 93-286
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must consider whether it is in the best interests of the child to spend equal time with each of the parents (s.65DAA).
In Morgan & Miles[5], an appeal from a decision of this Court, Boland J set out at [79] what a Court must do when considering whether a child should live with a parent who proposes to relocate. There considerations (which are summarised) require that the Court;
·Must be satisfied that the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interests as the paramount but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation.
·Apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for the child.
·In making an order for equal shared parental responsibility, have regard to the fact that there is no distinction drawn under the Act between interim and final hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of parental responsibility.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.
[5] [2007] FamCA 1230; (2007) FLC 93-343
Her Honour went on to state at [80]:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.[6]
[6] [2007] FamCA 1230; (2007) FLC 93-343 at [80]
Conclusions
The Mother deposes that she contacted a Family Relationship Centre to initiate mediation with the Father to put in place arrangements for co-parenting the children. The Father attended a “Kids in Focus” seminar on 28th January 2010. The Mother deposed that they were unable to use the mediation service due to pending apprehended violence proceedings.[7] As there are conflicting statements by the parties about whether the Father did or did not acquiesce in the Mother’s move of the children to Melbourne, I am not satisfied that the parties have made a genuine attempt to resolve the dispute about relocation.
[7] Affidavit of Ms Lenard 30.6.2010 at [15]
The evidence points strongly to a conclusion that the Mother’s decision was a unilateral one, without informing the Father.
The concern is that the Mother’s relocation of the children to Melbourne and the difficulty that the Father deposes to in speaking to the children at their maternal grandmother’s home does not contribute to the children having a meaningful relationship with both parents, but only with the Mother. There is no evidence to show that it is not in the children’s best interests not to have a relationship with him, but the evidence supports Ms Harris’ contention that the Mother is attempting to remove the Father from the children’s lives.
There is no evidence of physical or psychological harm to the children from abuse, neglect or family violence. There is evidence that the Mother is on a good behaviour bond from an assault on the Father, but this did not occur in the presence of either one of the children.
The only evidence of the children’s wishes comes from the Father, who deposed that he encountered the children by chance on 20th February 2010 when they were walking along the beach at [omitted] with their maternal grandmother. When the grandmother called to the children to go with her, the Father deposes that one or both of them said words to the effect of:
“No, we want to stay longer with papa”.[8]
[8] Affidavit of Ms Rogers 22.5.2010 at [50]
The children are still only young, [X] is 6 years of age and [Y] has just turned five.
The evidence suggests that the children have a good relationship with both parents. They also appear to have a good relationship with their paternal grandparents, their maternal grandmother and their aunt, the Mother’s sister.
The evidence leads to the conclusion that the Mother is not willing to encourage a close relationship between the children and the Father.
The changes proposed by the Mother are, despite the submissions to the contrary by counsel for the Mother, of some significance. They involve:
a)Relocation to another State;
b)Changing not only schools but changing to a different State education system; and
c)Seeing significantly less of their father than before.
Whilst I am prepared to accept that the Victorian education system is essentially similar to that which applies in New South Wales and that the children’s young ages make such a change less significant than if they were in, say, their mid-teens, the relocation to Melbourne from Sydney and the significant reduction in the children’s time with the Father are of considerable significance, in my view.
The evidence suggests that each parent is capable of providing for the children’s physical and educational needs.
In my view it is important that the parents have equal shared parental responsibility. The Mother’s unilateral move to Melbourne without consulting or informing the Father leads to the inference that if she were to have sole parental responsibility for the children the Father would be effectively excluded from making decisions in the children’s lives. This does not appear to be in the children’s best interests.
That said, I am not satisfied that equal time between the parents is either practicable or desirable at this stage. The Father should have substantial and significant time with the children. There should be some block time during the school holidays, which can take place at his parents’ home. The Father will need to provide evidence about suitable accommodation for the girls at his own residence.
In my view, it is in the children’s best interests to remain living in Sydney until the issues can be properly litigated at a final hearing. There is a clear need, in my view, for a Family Report under s.62G of the Act.
The Mother may well wish to move to Melbourne with the children in order to be nearer to her mother and sister. She considers that she needs their support. This is not a compelling reason to move, but it does not have to be. It is a reasonable and understandable wish, especially as the parties’ marriage has ended. However, if it is to happen, the way to bring it about is not by a unilateral move which the Father did not find out about until the children had already gone, but after all the issues have been properly considered.
It is for these reasons that the Mother is to return the children to Sydney and re-enrol them in their old school until further order. The Father will spend some time with the children in Sydney at his parents’ home.
On view of this, the venue of the proceeding will not be changed to Melbourne. The matter will remain in the Sydney Registry of the Court.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 July 2010
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