S and A - [2002] FMCAfam 154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & A

[2002] FMCAfam 154

CHILDREN – Interim orders – residence – contact.

Applicant:

L M S

Respondent:

P R A

File No:

ZD2236 of 2002

Delivered on:

16 May 2002

Delivered at:

Darwin

Hearing Date:

15 May 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr C. Black

Solicitors for the Applicant:

Cecil Black

Counsel for the Respondent:

Mr S Barr

Solicitors for the Respondent:

Higgins Solicitors

THAT UNTIL FURTHER ORDER IT IS ORDERED

Within 21 days of today’s date the mother return the child of the relationship J I J A-S, born 13 June 1998, to the area of N with New South Wales.
That the child live with the mother in N or surrounds and she be responsible for making all decisions concerning her day-to-day care, welfare and development.
That the father have contact with the child as follows:
(a)For each alternate weekend commencing the first weekend after the mother returns to N, from 5 pm on Friday until 5 pm on the following Sunday;
(b)Overnight from 5 pm Wednesday until 9 pm or the commencement of pre-school the following Thursday in the other alternate week;
(c)At other times as the parties may agree from time to time.
That the proceedings be transferred to the Federal Magistrates Court at Canberra for hearing at the earliest opportunity.
That a Family Report be prepared in the matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

ZD2236 of 2002

L M S

Applicant

And

P R A

Respondent

REASONS FOR JUDGMENT

These are ex tempore reasons for decision in the matter of A and S. The proceedings relate to one child, J I J A-S, who was born on

13 June 1998. The parties to the proceedings are J’s father, P R A, and her mother, L M S.
Both parties seek interim parenting orders in respect of J. That is, both parties seek orders in respect of where J will live and what arrangements will be for her care until there is a full and exhaustive hearing of all evidence in respect of past and proposed arrangements for J’s care.
By their nature, interim orders are temporary and are not intended to regulate the responsibilities of the parties towards J on a permanent basis.
Ms S is the applicant in the proceedings. For the sake of ease of pronouncing these reasons, I will refer to her as ‘the mother’. In her Form 3 application, filed on 28 March 2002, she seeks, on an interim basis, that J live with her in Darwin. When she filed her application she proposed that the father should have contact with J as the parties might agree from time to time.
In her affidavit in support her application she foreshadowed her plan to return to southern New South Wales later in the year. This morning, through her counsel, Mr Black, she says it is her intention, if granted the interim orders that she seeks, to return to N in June for a fortnight and once again in September. It is her proposal that the father have contact with J at that time.
Mr A is the respondent in the proceedings. Again, for obvious reasons, I will refer to him as ‘the father’ in these reasons. In his Form 3A response, which was filed on 13 May 2002, he seeks orders on an interim basis that J be returned to live in the ACT or New South Wales south coast region on an interim basis. Thereafter, he seeks orders that J live with both him and the mother on an alternating fortnightly basis until the final hearing of the matter.
On a final basis, both parties seek orders that J should live predominantly with him or her.
The central issue in this matter therefore is whether, on an interim basis, J should return to live in southern New South Wales or remain in Darwin with the mother, as she is currently doing. Once that matter has been resolved, other matters for resolution flow.
At the outset, I think it is important that the parties understand the nature of these proceedings. They have taken place over a period of an hour or so in a shortened or truncated form. It will not have escaped Ms S, in particular, that there has been no evidence from the witness box. There has been no cross-examination of either of the parties by the lawyer for the other party. The only evidence I have is in the affidavits that each of the parties has prepared and sworn.
As a result, it is not possible for me to investigate fully the parties’ motives, or indeed their long-term proposals for J’s care. Applications of this sort, relating to children, are to be determined according to the provisions of Part 7 of the Family Law Act. That is the part of the Family Law Act that deals with children.
This part of the Act includes a section which outlines what are the objects and principles of the Family Law Act. They are, if you like, the basic pinnings and foundations of the law in this country relating to children. I think it is appropriate that I outline them. They are set out in section 60B of the Family Law Act.
The principles underlying the Act are that, firstly, children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together. Secondly, that children have a right of contact on a regular basis with both their parents and with other people who are significant to their care, welfare and development. Thirdly, that parents share the duties and responsibilities concerning the care, welfare and development of their children. Fourthly, parents should agree about the future parenting of their children.
Without wishing to be trite, obviously in this case the father and the mother are not in a position to agree about arrangements for J. In essence, the Family Law Act lays on parents certain responsibilities and obligations towards their children. It is the children themselves who have rights under the Act. These are important matters.
Pursuant to section 65E of the Family Law Act, whatever decision I make has to be guided by one fundamental principle, namely that the best interests of the child concerned are the paramount consideration.
As I have indicated, there are drawbacks and limits to a hearing such as this one. Where there is a dispute between the parties as to what happened in the past in respect of a matter or a fact, I am simply not in a position to resolve it on the basis of the affidavit evidence alone. The evidence simply has not been tested. The issues of dispute between the parties – and I will come to some of them in a moment – must await the final hearing of the matter. For that reason, I have to be cautious about being drawn into issues of fact that are more properly dealt with at the final hearing.
An interim hearing such as this one is designed to allow orders to be made to regulate the position of the child concerned until a final hearing can be held. The interim hearing is conducted by reference to the objects and principles of the Act, as I read to you, and, of course, to the principle, that the best interests of the child concerned is the paramount consideration. How the Family Law Act says I am to determine the best interests of the child is by reference to a list of matters set out in another section of the Act, section 68F(2).
Notwithstanding all the obvious difficulties relating to interim hearings, there is guidance for me in the law as to how I am to approach the task of determining this matter on an interim basis. I think both Mr Black and Mr Barr referred me to the leading case in the matter. That is a decision of the Full Court of the Family Court in the case of Cowling and Cowling (1998) FLC 92-801.
What the Full Court of the Family Court said in Cowling is that in an interim residence application, as I told you, the bests of the child are the paramount consideration. These interests are normally best met by ensuring stability in the child’s life pending a full hearing of all relevant issues. Where the child concerned is well settled in his or her environment, that stability will usually be promoted by an order promoting or providing for a continuation of that arrangement unless there are overriding indications, relevant to the child’s welfare, to the contrary.
Those overriding indications include convincing proof that the child’s welfare would be really endangered by the child remaining in that environment. There is a proviso. The court is entitled to place such weight upon the importance of the retention of the child’s current living arrangements at the time of the hearing, as it sees fit – that is, at its discretion – in all the circumstances and, in determining the weight that should be given to that matter, the court may take into account the circumstances that gave rise to the child living in those circumstances, and, in particular, may examine whether that arrangement came about as a result of agreement between the parties, as a result of acquiescence or were unilaterally imposed by one party on the other. I can also look at how long the arrangements have been in place and whether one party has, as it were, delayed or sat on his or her rights in regards in bringing the proceedings to the court.
In certain circumstances where the evidence is that it is apparent that the child concerned is not living in an environment in which he or she is well settled, it is sometimes appropriate to embark on a limited evaluation, according to section 68F(2), of the circumstances of the child. In those circumstances, the matters that are relevant are any wishes the child may express – depending on his or her age; the proposed care arrangements for the child concerned; where any brothers or sisters or other important people live; the nature of the relationship between the child and his or her parents, and any relevant educational circumstances.
Having set out what I believe are the relevant considerations according to the law, in a manner which I hope is comprehensible to the parties, it is now necessary for me to briefly outline the circumstances that bring the parties to this point today.
As I understand matters, both the mother and the father are from the N area of New South Wales. The mother was born on 26 March 1977 and the father was born on 24 September 1965. The parties are not married and J is their only child.
The parties began to live together in either 1993 or 1995. There is a dispute about that matter. I do not think a great deal turns on it. It seems they began to live together in the N area and J, I think, was born in or around N in June of 1998. Again, the affidavit material does not disclose exactly where she was born. However, I am confident that the parties lived as a family in the N area in southern New South Wales until about mid-2000.
At that stage it is clear that the father moved to Sydney to look for work. The mother and J remained in N. However, some months later, I think around September, the mother and J joined the father in rented accommodation in N, an inner suburb of Sydney.
It is in this latter period, while the parties were living in N, that there is a dispute between them as to what were the exact nature of the care arrangements for J. Essentially, it is the mother’s position that she was primarily responsible for caring for J. She says that she cared for J from the time that she was born, and for the early part of J’s life she was not working in the paid workforce and was available full-time to care for J.
However, financial circumstances dictated that she start work in Sydney on a part-time basis in about March 2001. She is somewhat critical of the father in that she says in this period more and more of the burden fell on her to support the family financially. In her affidavit she outlines the circumstances, from her point of view, regarding J’s care.
She deposes that she enjoyed being a mother and was good at it. She says that the father’s employment was irregular and that it was difficult living in Sydney with the cost of living there. Accordingly, she went out to work and got work close by to where they were living. J went to day care, to which she adapted well. She started work in March 2001.
She does say that the father did assist with caring for J. However, she is critical of his abilities in this regard. In particular, she says that he had lots of friends who visited regularly and, as a result, there were drinking parties and many things that should have been done around the house were not done. It is her position that notwithstanding the fact that she was working, the full burden of care for J remained with her. In any event, she was working on a part-time basis and J spent some time in day care.
The father has a somewhat different view. He says that, in the latter period of the relationship and, indeed, from the time that J was born, arrangements for J were that she was cared for, in his expression, ‘parented jointly’ until the parties separated. He concedes that his work in Sydney was irregular, but says that as his paid work fell off he spent more and more time caring for J. He sets out in his affidavit what he says he did for J in regards to her care. He says on average he cared for her two or three days per week and that the mother had her for two days per week and the rest of the time she was in day care.
They are fairly fundamental matters and the parties are somewhat at odds with one another. As I pointed out, in a hearing such as this it is just not possible for me to resolve these issues.
The mother is also critical of the father in respect of his behaviour towards her, particularly in regards to two incidents that occurred in August and Christmas Day 2001. In the August incident, she alleges that the father was aggressive and violent towards her and that J was present. The violence was of such an extent that the police were called to the scene and the matter was reported to them.
The incident on Christmas Day happened at the home of relatives in N, where the parties had gone to spend Christmas. Alcohol was involved and it culminated in a serious fight between the father and the mother's brother. The father later hitchhiked back to Sydney.
It is the mother’s position that these two incidents show a level of mental instability on the father’s part that should cause concern, and, at the least, indicate that by their nature he should be precluded from parenting J.
For his part, the father denies that during the relationship he consumed alcohol excessively. He says, in his affidavit, that he consumes alcohol in a moderate fashion but only occasionally drank to excess. He says at the present time alcohol is not a problem for him. He also, in essence, denies the gravamen of the August 2001 incident.
He does, however, concede that he is currently suffering a post-traumatic stress disorder, which, he says, is a result of abuse he suffered as a child at the hands of his father and an older brother. He says he is now receiving counselling from a psychologist for those difficulties. He anticipates he will be out of the workforce for some time due to that treatment.
He, for his part, is also critical of the mother for what he says is inappropriate use of marijuana. Again this is an issue that I cannot resolve in a hearing such as this one.
It is clear, however, that following the incident in December the premises in Newtown were abandoned. Whether that was as a result of the lease concluding or for another reason, I do not know. But certainly the premises at Newtown were let go. Thereafter, the evidence of each of the parties for the next two or three months shows, in my view, a somewhat fluid situation in respect of J.
The father, in his material, says that he did not think the relationship was over between the parties in December. In the mother’s evidence it is clear that she says what occurred in December was the turning point – or perhaps I should not say the turning point, but the point of no return.
However, in early January J stayed with her maternal grandparents in N for about a fortnight whilst the mother attended to arrangements for ending her occupation of the house in Newtown. Thereafter, the mother returned to N and lived with J in premises owned by her grandmother, in a granny flat in N. The father stayed with her for a few days but the mother’s evidence is clear that this was not a reconciliation between the parties.
On 23 February the mother met M D. He lives in Darwin. The father apparently went to live with his aunt in Canberra around this time.
The mother says this in her affidavit at paragraph 30:
“Since P has moved to Canberra, there were a number of discussions as to J’s future care. P insisted that he have her for two weeks out of every four. I tried to take some advice, but the first appointment that I could get with a lawyer was 19 March. Whilst I didn’t agree with what P was suggesting, I felt as though I had no option but to go along with his proposals, which I reluctantly did. J was supposed to be returned on 21 March but I had to go from where I was living in N to pick her up. My dad took me down and brought us back.”
It is clear that J spent a fortnight with her father between about 7 and 21 March 2002. There is no doubt that the mother left N, with J, on

26 March 2002. It is clear that she did this without any reference to the father. She now lives with Mr D in Darwin, and they apparently have a close and affectionate relationship.
In her affidavit, which was sworn on 28 March 2002 – a very short time after she must have arrived in Darwin – the mother says this at paragraph 32:
“P is expecting that J will return to Canberra on next Thursday. I’ve not told him that I’m now in Darwin. I’ve discussed with my lawyer how I should deal with this situation and, on his advice, I have decided that the best course is to have P served with the documents as soon as possible. I have thought about telephoning him to tell him the documents are coming, but I have decided that would not be a good idea because he would probably make it difficult for me to serve him with the documents. I am uncertain as to how he will react, and I think the best way is for him to be served as soon as possible.”
I think that it is a necessary implication of that paragraph that the mother knew that the father would neither consent nor be happy that J had gone to live in Darwin. As I say, there can be no doubt that she left N, secretly and unilaterally as far as the father was concerned. It is for that reason that the father submits that it is appropriate that the mother return, with J, to southern New South Wales.
It is now necessary to contrast the parties’ competing proposals for the future. The mother argues that J was not well settled in N in New South Wales, and I think the evidence supports this. J spent a short time living in temporary accommodation with the mother’s grandmother. The connection with Sydney had been broken. The father has moved to Canberra.
Accordingly, it is the mother’s position that, as a result, it is necessary to embark on some limited evaluation of the section 68F(2) factors. In her affidavit material, the mother paints a very bleak picture of N. She says there is little work there; high use of drugs; it may be pretty, but, from a social and employment point of view, it is – perhaps to paraphrase her – the end of the world. She says there are no prospects for her there, although her parents and other family members live there.
In contrast, as one might perhaps expect, she paints a rosy picture of Darwin in terms of the accommodation she has with Mr D; how well J is settling in with him; and how convenient things are for J to attend pre-school and other matters.
As I say, I have to consider the length of time the mother and J have been here. It is since about 28 March 2002. The relationship between the mother and Mr D is still in its initial stages. One hopes it will prosper, but that cannot be certain.
The mother has a number of proposals for contact and, at the outset, I outlined them. June and September in N, when she would visit. Otherwise she says there is absolutely no difficulty to the father coming to Darwin to live, where he could have regular contact with J. It is her position that the father is not working and whatever treatment he requires he could have in Darwin just as easily as in southern New South Wales. Therefore he could easily move himself to Darwin to maintain contact with J.

I think the gist of the mother’s argument, really, is that it would be very unsettling to move J again. Indeed, her counsel describes it as being ‘potentially traumatic’. The mother says the last six or so weeks in Darwin have provided the most stability in J’s life for some time.
The father rejects, out of hand, the proposal that he come to live in Darwin. He says he cannot afford it and, in any event, he has no wish to come to Darwin. Initially his proposal was that he would live in T, which is 400 kilometres from N. He said he had accommodation there, and he proposed that J should live with both him and the mother on a fortnightly alternating basis, and that J should travel backwards and forwards on the bus.
I must say that was a proposal that I found unsettling. It seemed to me that it was fraught with difficulties and uncertainties and did not take into account a number of practical considerations, such as how J was going to go to pre-school, how she would cope with an onerous journey on a bus, what time of the day was the bus travel going to be and so on.
It was Mr Black’s position that, on any comparison of the two proposals, the court must find in favour of the mother’s proposal.
However, the situation has changed somewhat overnight and the father tells me, through his counsel, Mr Barr, that he would now live in N with his parents. He still would want J to live on a fortnightly basis with him and the mother. Failing that, he would want regular contact on every weekend.
It might be said that the father is making proposals on the run and perhaps is trying to cut his cloth to fit the situation. I think that is probably true. I think that is probably the case for both parties. They are both anxious to make proposals to get, ultimately, what they want on an interim basis. I am not critical of them for that.
Mr Barr says that to accede to the mother’s proposal is tantamount to the court condoning the actions of the mother in this matter, which, at first blush, appears to disregard the principles in section 60B, which I have read to the parties. He says that this is not a case where the mother had no option other than to leave from a situation which was unworkable and violent. To a certain extent, I agree with his submission.
Though the mother was placed in a difficult position in that she had left the N accommodation, and was living in temporary accommodation with her grandmother, I think there can be no doubt that she chose Darwin because of her understandable wish to pursue her relationship with Mr D. Again, without wishing to be trite and simplistic, Darwin is a very long way from southern New South Wales.
In my view, any analysis of the evidence is incapable of yielding any other result, other than the mother chose Darwin because it was where Mr D lived. She gave no thought to the father and his relationship with J before she left. It follows therefore, to a certain extent, the mother has put her own needs before those of J, and J’s entitlement to have a relationship and regular contact with her father.
As I said yesterday, this is a difficult case. On the one hand, the parties are entitled to live where and how they choose. This is a free and open society. On the other hand, I must also remember that children have an entitlement to regular contact with those who are significant in their lives, particularly their parents.
The balance of such matters is notoriously difficult. In recent times, it has produced much jurisprudence. That is learned law from superior courts such as both the Full Court of the Family Court and the High Court as to how these difficult matters are to be reconciled.
I must bear that in mind. I must bear in mind that this is the interim hearing, it is not the final hearing. I must bear in mind that evidence is limited, and particularly I must remember that I should not, by any orders I make, pre-empt or anticipate the necessity for a final hearing. I should not, by any orders I make, preclude the parties having the opportunity to present any arguments they may wish to present at a final hearing.
J came to live in Darwin as a result of the unilateral action of the mother. The arrangement whereby she is living in Darwin has been in place for a short time. There has been no delay in bringing the proceedings before the court, and nothing that can be interpreted as being acquiescence on the part of the father to this arrangement for J.
I was concerned about the father’s proposal for contact. I did not think Tathra was a workable proposal. However, I take some comfort from the proposal that he will live in N. In these circumstances however, I do not think a fortnight-about arrangement is appropriate.
Bearing in mind how J came to be living in Darwin, I have formed the view that it is appropriate that J should return to live in New South Wales on an interim basis. I think it would be premature to allow the mother to stay in Darwin following a short hearing such as this one. I do not believe the evidence discloses that it would be appropriate that there be a strict fortnightly sharing of the child. That, in my view, has the potential to be very unsettling for her.
At this stage, the father wishes to pursue an application for the full-time residence of J. The evidence indicates that since separation J has been in the care of the mother more than that of the father. What I think is an appropriate arrangement in the interim is that J should live with the mother in N and that there should be contact with her father each fortnight in N, over the weekend, and overnight in the other week, mid-week. The mother will need some time to return to New South Wales and I would be minded to allow her 21 days to do that.
My inquiries tell me that the matter can be heard in October or November in Canberra. That is four or five months away. I appreciate that this will result in great and grave inconvenience for the mother, but, on my interpretation of the law and its strict application to this case, it is my view that there is no other option than that she should return to New South Wales pending final hearing of the matter.
The orders of the Court will be that, until further order:
1)Within 21 days of today’s date the mother return the child of the relationship, J I J A-S, born 13 June 1998, to the area of N within New South Wales.
2)That the child live with the mother in N or surrounds and she be responsible for making all decisions concerning her day-to-day care, welfare and development.
3)That the father have contact with the child as follows:
a)
For each alternate weekend commencing the first weekend after the mother returns to N, from 5 pm on Friday until

5 pm on the following Sunday;
b)Overnight from 5 pm Wednesday until 9 am or the commencement of pre-school the following Thursday in the other alternate week;
c)At other times as the parties may agree from time to time.
4)That the proceedings be transferred to the Federal Magistrates Court at Canberra for hearing at the earliest opportunity.
5)That a Family Report be prepared in the matter.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Lynnette Chin

Date: 30 May 2002