ROULSTONE & LOWE

[2015] FCCA 2423

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROULSTONE & LOWE [2015] FCCA 2423

Catchwords:
FAMILY LAW – Parenting orders – relocation – competing residence applications – children’s views – splitting of siblings – father’s application acceded to – children to continue to reside with father in the Greater (omitted) area.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR ROULSTONE

Respondent: MS LOWE

File Number: MLC 2266 of 2014

Judgment of: Judge Hartnett

Hearing dates: 14 November 2014, 8 April 2015 and 20 May 2015

Orders made: 20 May 2015

Delivered at: Melbourne

Delivered on: 4 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Whitchurch

Solicitors for the Applicant: Samantha Ward Pty

Counsel for the Respondent: Ms Goldsworthy

Solicitors for the Respondent: Geelong Family Lawyers

ORDERS MADE 20 MAY 2015

1. All previous parenting orders are discharged.

2. Each of the mother and father have equal shared parental responsibility for the children:- X born (omitted) 2001 (‘X’); Y born (omitted) 2004; and Z born (omitted) 2008.

3. The children continue to attend at their present school, being (omitted) College until at least the end of the 2016 academic year.

4. The children live with the father.

5. The children spend time and communicate with the mother as follows:-

   (a)during school terms each alternate weekend commencing 29 May 2015 from Friday at 3:30pm until Sunday at 6:00pm (7:00pm during daylight savings time), save that X is permitted to participate in Saturday morning sport and thereafter he shall travel to Melbourne to be met by the mother or her agent at (omitted) Station or as otherwise agreed;

   (b)for one half of each of the first and third school term holidays and being the first half, to commence on the last day of school and conclude at 6:00pm on the middle Saturday;

   (c)for almost the entirety of the second term school holidays commencing on the first Saturday at 12:00noon and concluding on the last Saturday at 12:00noon;

   (d)for one half of the Christmas school holidays, to be the first half in 2015/2016 and every second year thereafter and for the second half in 2016/2017 and every second year thereafter;

   (e)if the Easter period falls outside school holidays then for all such period on the first occasion it occurs and each alternate occasion it occurs thereafter;

   (f)on each of the children’s birthdays as agreed between the parties in writing or text but to include a period of at least three hours in the (omitted) area if on a school day, and six hours in the (omitted) area if not a school day but the children are in the father’s care. Likewise, if the children or any of them are in the care of the mother on their respective birthdays, the father shall have the same time period with the children as provided for in this order but in the Melbourne area;

   (g)on Mother’s Day from 10:00am to 6:00pm; and

   (h)otherwise as agreed in writing or text between the parties.

6. For the purposes of changeover the mother or her agent collect the children from school and the father’s home at commencement of time spent with, and the father or his agent collect the children from the mother’s home at conclusion thereof unless otherwise agreed.

7. The mother and father are at liberty to telephone the children at all reasonable times and each shall facilitate the communications of the other with the children.

8. Each of the mother and father are restrained by themselves, their servants and/or agents from denigrating the other in the presence and/or hearing of the children.

9. Notwithstanding any other orders to the contrary herein the children shall spend Father’s Day from 10:00am to 6:00pm with the father.

10. The father is restrained from moving the place of residence of the children from the (omitted) and (omitted) areas unless agreed to by the mother in writing or further order of the Court.

11. Liberty to the parties to apply to the Chambers of Judge Hartnett on short notice with regards to the children’s sporting participation into the future.

NOTATION:

All time spent with between the mother and children will occur in Melbourne, that being the area to which the mother shall be relocating, save as provided for in order 5.f. herein.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2266 of 2014

MR ROULSTONE

Applicant

And

MS LOWE

Respondent

REASONS FOR JUDGMENT

1. On 20 May 2015 and being at the conclusion of the trial in this matter, the Court made final parenting orders. The reasons for the making of those Orders were conveyed in general terms in the court room with an indication that written reasons would be available at a subsequent time. No reasons were sought for the lodgement of an appeal against the orders. These Reasons go to the making of those Orders.

2. On 20 January 2014, the Applicant father first issued proceedings in the Magistrates’ Court of Victoria in Geelong seeking parenting orders in respect of the parties’ children X born (omitted) 2001, Y born (omitted) 2004 and Z born (omitted) 2008 (‘the children’). The children are now aged 14 (nearly 15), 11 and 7 years respectively. In respect of those parenting orders, at trial, the father sought that he and the mother have equal shared parental responsibility for the children - the mother agreed; and that the children live with each of their parents on a week about basis, with the children continuing their attendance at (omitted) College in the (omitted) environs. The mother sought the children live with her; spend each alternate weekend with their father from Friday until Sunday and other special occasion days; and that school holiday time be spent fairly equally between the parties. The mother sought, as a type of overarching order, to remove the children from their then school and the Greater (omitted) area, and relocate their residence to (omitted), a suburb of Melbourne and a distance of some one and a half to two hours from the father’s home in (omitted) in the State of Victoria. The father sought to restrain her so doing and that in the event the mother relocated her own place of residence, orders for the children to reside with him and spend alternate weekend and holiday time with their mother.

3. The mother filed an Amended Response in the proceedings on 15 July 2014. Relevantly, she sought financial orders, also in the proceedings, which envisaged the sale of the home in which she and the children then resided in (omitted) in the State of Victoria (‘the former matrimonial home’) and a division of the net proceeds. The mother sought, and obtained the leave of the Court, to pursue her application for a de facto property settlement given that such application was out of time. The mother filed a Financial Statement sworn on 14 July 2014 where her income was disclosed as $450 per week received by way of a sole parenting benefit payment. She indicated the father’s contribution to the household and support of his three children to be $280 approximately each week, paid to meet the minimum monthly mortgage repayments on the former matrimonial home. The father was in fact paying the interest only component of the loan secured over the former matrimonial home in lieu of child support. The mother had no superannuation and lived a very financially constrained life. The father’s Financial Statement sworn on 13 October 2014 indicated receipt by him of $1,800 per week in his occupation as a (omitted). He had accompanying superannuation of approximately $66,000 and had been able, in the years since separation, to live a more economically secure lifestyle than that of the mother.

4. In the proceedings the mother relied upon the evidence as contained in the following affidavits:-

   a)the Trial Affidavit affirmed by the mother and filed on 14 July 2014;

   b)the Affidavit of the mother filed on 29 October 2014;

   c)the Affidavit of the mother filed on 11 November2014; and

   d)the Affidavit of Mr G filed on 11 November 2014.

5. In the proceedings the father relied upon the evidence as contained in the following affidavits:-

   a)the Affidavit of the father filed on 20 January 2014;

   b)the Affidavit of the father filed on 28 July 2014; and

   c)the Affidavit of the father filed on 21 April 2015.

6. Each of the mother, father, Mr G and Mr M, family consultant, were cross-examined in respect of their evidence before the Court.

Background

1. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

2. The father was born on (omitted) 1980. He is now aged 34 years. The mother was born on (omitted) 1981. She is now aged 34 years. The father is a (occupation omitted) and resides in (omitted). The mother has been engaged in home duties and the primary care of the children since their birth. In addition, she commenced to undertake a diploma in (course omitted) with aspirations to enter the (omitted) industry. The mother resided in the former matrimonial home following separation of the parties in 2011 and remained in such occupation until 2014 when she commenced to live in both (omitted) and (omitted), a suburb of Melbourne, upon commencing a relationship with Mr G, her now de facto partner.

3. The parties commenced their relationship in 1999, and commenced cohabitation in 2000. They separated in June 2011, when their youngest daughter was aged two years and nine months.  

4. Following separation, all three children lived with their mother and spent regular time with their father. The mother claimed a flexible parenting agreement was made between the father and herself, whereby the children spent every second weekend with their father from Friday until Sunday evening. The father claimed the children resided with him on Friday until Sunday, and occasionally until Monday mornings, on a weekly basis. In addition, the father spent time with the children during the week as agreed, in particular because he was actively involved in their sporting activities. I find the children spent not every weekend with their father but many more weekends then asserted by the mother. He was a very ‘hands on’ father, and very involved with the children’s lives. As the mother said in evidence, he was, and is, a great dad.

5. Interim Orders made 19 May 2014 provided for the children to live with their mother. By interim Orders made 8 April 2015 those earlier Orders were varied so as to allow X to live with his father in accordance with his wishes. Indeed he had run away from the mother’s home on 4 March 2015 and gone to the father’s home. I accept that was not at the instigation of the father. The two younger children then spent time with their father and brother each alternate weekend from after school Friday until before school Monday, and each alternate Wednesday. X then spent the same time with his mother and sisters, in reverse, such that the children’s time together was maximised. Throughout the proceedings the children remained at the same school, pursuant to court orders. They thrived there, enjoyed that school and the company of their friends, and it provided them with stability. Mr M, the family consultant in these proceedings, gave evidence that their attendance should continue throughout this year and next, albeit the school is on the other side of (omitted) to the father’s residence. The father was agreeable to adopting that recommendation.

6. The parties resolved their competing property applications by consent orders entered into on 14 November 2014, being the first day of trial. Those Orders included a sale of the former matrimonial home and a splitting (equally) of the father’s superannuation entitlements.

7. The critical issues in a consideration of the parenting orders to be made in the factual circumstances of this case were as follows:-

   a)all three children expressed a wish to live with their father in (omitted). Although Z, the youngest, oscillated between that expressed wished and a retention of the status quo. The eldest child, who is nearly 15, expressed a very strong wish to live with his father. Ultimately he determined to remain in his father’s care despite the contrary then existing order before the conclusion of the proceedings. He did so with his parents’ consent. This had the effect of splitting the siblings, which the siblings did not want and which the expert evidence before the Court deemed was not in their best interests going forward;

   b)the mother was fixed in her determination to move to (omitted) and take up residence with Mr G, with or without her children. Mr G was fixed in his determination to remaining living in the (omitted) area. He and the mother commenced their relationship in mid-October 2013 and were expecting their first child in September 2015. This is Mr G’s first child and his extended family, friends and workplace all are proximate to (omitted). The father in these proceedings was fixed in his determination to remain residing in the Greater (omitted) area regardless of where the children were living. This was an area in which his and the mother’s relatives, generally speaking, lived and where the children had grown up and felt comfortable, more so, than in Melbourne;

   c)the mother had no housing available to her in (omitted) once she sold the former matrimonial home. She had no desire to remain living in the (omitted) area and had in a practical sense moved in with Mr G before the proceedings concluded. She had introduced the children to him and they had a positive relationship with him, but not one whereby the two elder children in particular, wished to live with their mother and her new partner in preference to their father. This was against a background where the children had resided in the primary care of their mother since separation; and

   d)the father accused the mother of using illicit drugs and the mother accused the father of some violence. The father had little positive to say about the mother, save she had been a great mum before separation. There was heightened animosity between the parties.

8. Immediately following separation, the parties’ exchanges had generally focused on their children and the promotion of their care. However, the mother commenced a relationship with Mr A which was on and off for some time. Mr A was a drug user. He used methamphetamines, ‘ice’ and marijuana. The mother did not use marijuana but did use, intermittently and for a limited time, methamphetamines. The father, in or about October 2012, became concerned as to the activities at the mother’s home, and what the children would tell him of it and their exposure to a drug culture. He exaggerated some aspects, for instance the number of people and cars at the mother’s home, but I accept that he became concerned by the deteriorating nature of the mother’s care of the children and the environment the children were placed in. I accept the drug activities in the home were visible to the children and their effects detrimental to their mother’s care of them. There is no evidence, as alleged by the father, that in addition the mother had a problem with alcohol abuse. The mother’s relationship with Mr A survived over a period of almost two years.

9. The father, during the time period above, had lived in his brother’s home and in his then girlfriend’s home. She had obtained an intervention order against him to secure his removal from her home in August 2013, in circumstances where he had been physically aggressive and frightened her. That intervention order was obtained by consent and with no admissions for a 12 month period. Thereafter, the father and his former girlfriend remained friends.

10. In December 2013, the father removed the children from their mother’s care. The circumstances did not warrant the husband’s action. The mother was late in returning to her home but had in place a babysitter for the children, to whom the father could deliver them. The father saw it as an opportunity to take over the care of the children. I accept he was genuinely concerned about their care, but he had done little to alleviate the mother’s difficulties including financial and did not try to work with her to solve some of the issues pertaining to the children. The father also had been told by the mother that she wished to live with the children in (omitted) with Mr G. The father was very opposed to this suggestion.

11. The mother secured the return of the two girls by her own actions and the father, after a five day period, returned X to the mother’s care. The mother also, around this time, obtained a three month intervention order against the father which she did not thereafter proceed with. The parties agreed to a sharing of the December 2013/ January 2014 school holidays. There was a written agreement. The father however was becoming increasingly concerned that his children might be relocated by the mother to (omitted). He issued these proceedings in January 2014 as a result. He sought an ex parte hearing claiming he did not know the whereabouts of his children. This was blatantly untrue.  He knew exactly where they were and the parties had agreed on their care at that time.

12. The unfolding of matters as between the parties in 2014 included their acceptance of X’s desire to live with his father. The father had been very active in participating in the children’s sporting activities. He sought out and provided for the children good competition in cricket and football. He offered to pay for swimming lessons for the children which the mother declined. The children have observed him to be more reliable than their mother and more attuned to their needs since separation. The elder two children have a level of maturity which is accepted by the Court as being one that requires their views to be given considerable weight. Mr G suggested that Y was not so mature. I prefer the expert evidence of the family consultant that she has clarity of expression in the stating of her views and that she is clear and consistent about her desire to live with her father in the environment he provides. Further in the circumstances of this case, I determined that the siblings should not be separated. In that regard, in addition to their own wishes, I accept Mr M’s evidence that:-

    “… the sibling relationship is often the most powerful and enduring relationship a child will have throughout their life.”

Family Consultant

1. Mr M, Regulation 7 family consultant, prepared two family reports in this matter. The first was dated 22 July 2014 and the second 20 March 2015. In his first Family Report, Mr M recommended the children live with their mother, contrary to their wishes, but said at paragraph 103 of that Report:-

   “It is recommended this Honourable Court give consideration to the assessed likely negative impact upon the children and their capacity to effectively spend regular time with their father in the event Ms Lowe relocates to the (omitted) suburbs of Melbourne with the children.  As such, this Family Consultant is unable to support the children relocating under the circumstances noted above.”

2. In his second Family Report, Mr M recommended the children live with their father. He noted again the high conflict between the parents; their inability to be positive about the other in their remarks; the elder two children’s desire to live with their father; and the more consistent high level of physical care provided to them by their father when compared with that provided by their mother, who in some instances, for instance the provision of meals, had neglected the children.

3. I accept the recommendations of Mr M, which accorded with the balance of the evidence. Mr M relevantly said at paragraphs 81 to 89 inclusive of the Family Report dated 20 March 2015:-

   “81. In this Family Consultant’s experience, it is extraordinarily rare for a parent to indicate unilaterally to the Court that they intend to move with or without the children.  Generally, when a relocation matter is considered, a parent may perhaps seek to move to country Victoria or intrastate as their preferred option, with a variety of reasons to support their claim.  However, at the end of the day, if that Application is unsuccessful, most parents will concede to remain living in their place of origin with the children.  Ms Lowe’s position that she intends to move to Melbourne, whether this Honourable Court supports the children accompanying her or not, is alarming on several levels.  First and foremost, such a position in actuality goes far to demonstrate her lack of commitment to the children and her preparedness to elevate her needs above the welfare and best interests of the children.  In this Family Consultant’s opinion, Ms Lowe presents as an individual who is rather self-centred and concerned primarily with her views and wants, beyond what is in the best interests of the children.  Moreover, she does not appear to place any high regard or value upon the children’s relationship with their father and asserts that distancing herself from (omitted), her past life with Mr. Roulstone, and starting afresh is the only way she would like to proceed and is prepared to do so regardless of the costs. 

   82. Whilst she opposes the children living with their father and believes the novelty of the children living with him will wear off quickly, by default, she openly accepts that if she moves to Melbourne and this Honourable Court does not support the children moving with her that they would obviously move to live with their father.  Interestingly, she did not appear to identify or raise any enormous objection to the children living with their father in such an eventuality.

   83. Whilst Ms Lowe appears to place a great importance upon consolidating a new life with her partner in Melbourne, interestingly the children do not speak much of their mother’s partner, his family or life in general in Melbourne.  The children appeared almost indifferent in respect of their mother’s partner, identifying little positive or negative.  Presumably, if Ms Lowe were to move, commence cohabitation with her partner, one would have considered a particular value upon consolidating perhaps not only her relationship with her partner, but his relationship with the children as well.  There was little presented during this evaluation to support such being the case.

   84. The issue of the children’s attendance at cricket and football would appear to be a particular issue of contention between the parties, which was also raised during the initial Family Report evaluation.  The parties presently and most likely will continue to maintain disparate views regarding such.  Ms. Lowe’s view is that Mr. Roulstone is purposely placing an expectation upon her time with the children by requesting she convey them to their football and cricket training during her weekends.  Her views regarding such would appear consistent with what was noted above, being that Ms. Lowe’s views such as impinging upon her time, rather than viewing such from the perspective of supporting the children and giving to enrich their lives.

   85. The issues raised with respect to Ms. Lowe perhaps not being available to the children, often sleeping and the children being left to attend to their own dinners is an issue of some concern.  One, from a safety perspective, young children making their own meals, utilising utensils and appliances within the kitchen in concerning.  Moreover, the children report few provisions being available to have for their dinner and reportedly being instructed by their mother to fend for themselves.  Whilst it is acknowledged this may be a particular issue of contention between the parties and perhaps further examined during proceedings, it is important to note that such information was consistently conveyed by all three children and the actual minute differences in the information each conveyed actuality adds weight to the children’s statements.  Put in other words, the children did not repeat the exact same information by rote, there was some individuality and small variances, adding credibility to the children’s report that they often are left to make their own evening meals.

   86. The children also continue to maintain the same views they conveyed to this Family Consultant during the initial Family Report assessment that they would prefer to live with their father.  In this Family Consultant’s opinion, the impact upon the children in the event there would be a change in their living arrangements whereby they were to live with their father, does not appear likely to be significant or have a detrimental impact upon the children.  Moreover, it would appear particularly X’s position has now advanced as he has threatened to abscond if he were forced into a position of moving to Melbourne with his mother.  It would be alarming if X found himself in a position whereby he felt so powerless that he may actually place himself at risk by absconding.  The children speak highly of the relationship with their father and the observations made of their interactions on this occasion and during the initial Family Report would support the strength of that relationship.  Moreover, the children being fully aware of their mother’s intention to move to Melbourne, even without them would most likely solidify for the children the extent to which their mother prioritises their care in her life.  In this Family Consultant’s opinion, the children would most likely at some level experience a sense of rejection by their mother choosing to move rather than retain care of them.

   87. There has been question raised in relation to Ms. Lowe perhaps continuing to use illicit substances and whilst orders had been made for her to participate in random drug/alcohol urine screens and she self-reports having attended five screens which were clear, there would appear to be void of corroborating information within the material to this regard.  Annexed to Ms. Lowe’s affidavit material would appear to be a single urine screen dated 29 September 2014, which she reports having been re-done due to an inaccurate positive detection.  Furthermore, a letter from her family doctor outlining that an over the counter pain relief medication she reports having taken may be detected upon a urine screen as a false positive reading for illicit substances.  In this Family Consultant’s opinion, whilst the letter from Ms. Lowe’s doctor has been of some assistance, only sighting one urine screen would be insufficient to draw any conclusion that Ms. Lowe no longer uses illicit substances.

   88. This Family Consultant has reconsidered the final recommendations in this updated report in light of the current position of Ms. Lowe that she intends to move to Melbourne and the now even stronger views of the children with respect to the proposed future living arrangements.  Notwithstanding the above, Z as the youngest child would appear to be in the most vulnerable position with respect to any negative impact due to a change of living arrangements.  She is quite young, has lived with her mother for a significant period of time and appears to strongly maintain divided loyalties towards both parents.  Z will likely experience some temporary adjustment struggles if she were to move to live with her father, but in this Family Consultant’s opinion these should be short-lived.

   89. It would appear Ms. Lowe feels trapped within the current circumstances, strongly dislikes living where she is in (omitted) and has a great desire to move from her present circumstances Throughout discussions Ms. Lowe was exceedingly emotional, but abundantly clear that she will not remain living in (omitted) even if this Honourable Court does not support the children accompanying her on the move to Melbourne.  Hence, this Family Consultant’s updated position and the recommendations made below have been considered from the perspective that Ms. Lowe has clearly and unreservedly indicated she will be moving to Melbourne, whether this Honourable Court supports the children moving with her or not.”

1. When considering the children’s best interests as paramount and looking to those matters set out in s.60CC of the Family Law Act 1975 (Cth), the evidence overwhelmingly supported the children living with their father. The Court was satisfied that he would promote a meaningful relationship with their mother into the future, a very necessary consideration, and that in respect of the additional matters the Court is required to consider, they fell in favour of the father as discussed above.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  4 September 2015