Sampson and Walker
[2011] FMCAfam 819
•26 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMPSON & WALKER | [2011] FMCAfam 819 |
| FAMILY LAW – Children – unilateral relocation by mother – interim change of residence. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB, 65L |
| Applicant: | MR SAMPSON |
| Respondent: | MS WALKER |
| File Number: | BRC 8581 of 2009 |
| Judgment of: | Cassidy FM |
| Hearing date: | 25 July 2011 |
| Date of Last Submission: | 25 July 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 26 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Richardson McGhie |
| Counsel for the Respondent: | Ms Wilson |
| Solicitors for the Respondent: | Not applicable |
ORDERS
That the child [Z] born [in] 2004 be released from childcare into the care of the father.
Provided that the mother returns to live within 50km of her previous address in South East Queensland, the Orders of 26 March 2010 remain in force.
In the event that the mother does not return to live within 50km of her previous address in South East Queensland, the following Orders apply.
That the child [X] born [in] 1999 live with the mother.
That the children [Y] born [in] 2000 and [Z] born [in] 2004 live with the father.
That pursuant to s.65L of the Family Law Act 1975, the father and the child [X] shall attend up to three (3) appointments with Family Consultant Mr P, or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane, for the purpose of reintroducing the child to the father.
That the appointments referred to in the preceding Order shall take place at such times as organised by the Family Consultant, at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
That the parties shall attend appointments with the Family Consultant as directed. ‘
That the Family Consultant shall not be required to prepare any formal written report in the matter without further order.
That the Family Consultant shall have leave to inspect any subpoenaed documents.
That the mother shall facilitate the attendance of the child [X] upon the Family Consultant.
That the Family Consultant shall have liberty to list the matter for any further directions by approaching the associate of the Federal Magistrate making these orders and for that mention, the Family Consultant shall have leave to appear via the telephone.
That the mother file and serve any stay application and supporting affidavit material by no later than 4.00pm on Wednesday 27 July 2011.
That this matter be adjourned for hearing of the stay application at 9.30am on 28 July 2011 in the Federal Magistrates Court of Australia at Brisbane.
That this matter be adjourned for the 2012 trial callover at 9.30am on 6 December 2011 in the Federal Magistrates Court of Australia at Brisbane.
That the parties and their legal representatives personally attend Court on 6 December 2011.
NOTATION:
(A)It is requested that the s.65L appointments take place at times when the mother is attending in Queensland to visit the child [Z], if such times coincide with the availability of the family consultant.
(B)It is the intention of the Court that this matter be listed for a priority trial in 2012.
(C)That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sampson & Walker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 8581 of 2009
| MR SAMPSON |
Applicant
And
| MS WALKER |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the parents have asked me to decide the future parenting arrangements for three young children. Two children are presently living with the mother and they are [X], born [in] 1999, and [Z], born [in] 2004. There is another child of the relationship who is profoundly handicapped and her name is [Y]. She was born [in] 2000 and she is presently 12 years old. The mother’s proposal is set out in her response that was filed in this Court on 13 July 2011.
Mother’s Proposal
The orders sought by the mother are that the Court allow the mother to remain living in [L], New South Wales, and various orders be discharged from orders that were made on 26 March 2010. The mother is seeking sole parental responsibility for [X] and [Z] and is seeking equal shared parental responsibility for [Y]. The mother concedes in that response that [Y] live with the father and seeks that [Z] and [X] live with her. She seeks that [Z] spend time with the father each mid year school holidays from the first Saturday to the final Friday and for half of Christmas school holidays and that [X] spend time with the father as agreed by the parents.
The mother is seeking that same arrangement for [Y]’s time with her, which is that it be agreed by the parents. She has also set out an order that the mother use her best endeavours to encourage [X] to spend meaningful time with the father and when [X] and [Z] are in the mother’s care, they shall communicate by telephone with the father each Monday and Wednesday night from 6 to 6.30, with the father to initiate the call. The mother has sought a reciprocal telephone arrangement when the children are in the father’s care.
Father’s Proposal
The orders sought by the father are set out in his application filed 23 February 2011. The orders that the father actually sought were recovery orders in relation to the children, [X] and [Z], because the mother had left the [C] area where they had been living for a destination that the father says, in his evidence, he did not know. Certainly there was some effort put in by the Court to determine where the mother was living and a location order was issued.
As I understand his case, the father is seeking that the child [Z] live with him, that [Y] remain with him, and that [X] remain in the care of the mother if the mother chooses not return to the [C] area. If the mother chooses to return to the [C] area, the father is seeking that the orders made in 2010 continue.
Background Facts
I have accepted and taken into account the following background facts in this matter.
This is a matter where the parties came before the Court on 26 March 2010 and reached an agreement on a final basis with respect to both children’s issues and property.
Both parties were represented on that day. The father was represented by Richardson McGhie with Mr Pieterse of counsel appearing on his behalf, and the mother was represented by Rhonda Sheehy & Associates with Ms Martin of counsel appearing on her behalf.
On the same day the property orders were agreed to. The father continued to live in the former matrimonial home at [omitted] which is near [C], and the mother lived at [omitted], again which is fairly near [C]. There was a distance of about 12 kilometres between the parties’ homes.
There was an arrangement for the child [Y] to spend time in both households and to primarily live with the father and the reverse was the case with [X] and [Z]. It was a Thursday to Tuesday each alternate week arrangement for the children, with [X] and [Z] spending five days with the father in the one week and [Y] spending five days with the mother in the other week. This continued basically unaltered until the mother removed the children, [X] and [Z], from the area and the children have spent no time with the father since then.
The father had some time with the children at Christmas and, unfortunately, his time then ceased with both [Z] and [X]. I note that [X] had spent very limited time with the father during the time that these orders were in place.
[X] and [Z] are currently enrolled at a school at [L]. Prior to that they were attending a school near where their parents lived in the [C] area.
The mother alleges incidents of domestic violence during the relationship leading to the separation and she raises concerns about the father’s marijuana use. I am not able to make any findings about those issues, although I note that the mother was content to allow a profoundly disabled little girl to remain living with the father, and I have difficulty understanding how she could do that if, in fact, the father was a person who demonstrated serious issues of anger management and drug abuse.
The father relied on:
a)The initiating application filed 23 February 2011;
b)The father’s affidavit filed 23 February 2011; and
c)The father’s further affidavit filed 19 May 2011;
The mother relied on:
a)Her response filed 13 July 2011;
b)Submissions filed by leave 25 July 2011;
c)The affidavit of Ms W filed 14 July 2011;
d)The affidavit of Mr F filed 14 July 2011; and
e)The affidavit of the mother filed 13 July 2011.
I have read that material and considered it.
I was concerned about this matter and I ordered that the children spend time with the father for the two weeks of the September school holidays. [X] was not prepared to attend with the father and when the matter was re-mentioned before me on the first Monday of the school holidays, I considered that it was not appropriate to force her to go. [Z] spent that time with the father and, subsequently, there was a s.11F report prepared by one of our Family Consultants, Mr P. The report interviews took place on 15 July 2011, with the oral report that afternoon. The parents listened to the evidence, as did I, that Mr P provided. The evidence assisted me in understanding the dynamics in this matter and, in fact, helped me to come to the decision I have come to today.
Legal Principles
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereinafter referred to as “the Act”). Section 65D of the Act is subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in the children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both of their parents and the second is the need to protect a child from physical or psychological harm, or being exposed to abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary”. The other additional considerations I will refer to in some detail in these reasons.
I also have to consider the extent to which each parent has fulfilled his or her parenting responsibilities and facilitated the other parent in fulfilling his or her responsibilities. I must ensure that I make an order that is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (s.60CG).
Application of Law to the Circumstances of the Case
I now have to consider applying the legal principles in the circumstances of this case.
Primary Considerations
Turning firstly to the primary considerations, the benefit to these children of having a meaningful relationship with both parents, I consider is relevant and, indeed, the parents must have thought so as recently as March of last year when they entered into consent orders that, had they been complied with, would have ensured that the children, all of the children, had a meaningful relationship with both of their parents.
I also have to consider the need to protect the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. I cannot make any findings about that today and that will be a subject of evidence that may well be traversed at the trial. I note that the mother raises concerns about the father’s propensity to take drugs and be domestically violent and I see that the consent order required him to do an anger management course.
The only observation I will make today is to repeat the one I have already noted. I struggle with the concept of the mother leaving [Y], a profoundly handicapped child, in the father’s care if her concerns with respect to his drug abuse and family violence were as she states, because it just does not make sense given that [Y] is very dependent on the carer for her care. She has no capacity to feed herself; she is very restricted in what she can do. She is profoundly handicapped.
So I do conclude today, even though I am limited in what I can make findings about, that it is important for the children to have a meaningful relationship with both their mother and their father. I do that on the basis that the parents basically concluded that some short time ago when they entered into consent orders. I am not in a position to make any final findings about the children being exposed to risk of family violence, harm or abuse. That is a matter for trial and I intend to set the matter down for a priority trial early next year.
Additional Considerations
The Views of the Children
I have to take into account any views expressed by the children and factors such as the child’s maturity or level of understanding. I have noted that [X] is not inclined to spend time with her father and Mr P, the Court expert, says that she is a very sensitive child and both parents need to be conscious of this. The mother indicated that she was prepared to attempt to encourage [X]’s relationship with the father, but at the moment both the mother and the father seem to agree that any reintroduction needs to be staged, and Mr P’s view was that it needs to be carefully orchestrated.
I accept that evidence and, therefore, note [X]’s expressed views that she does not want to spend time or live with the father and take them into account.
[Z] is a different kettle of fish. He seems to enjoy his father’s company. He moves seamlessly between his mother and his father and he did not particularly express any wishes or views that I need to take into account in terms of this arrangement.
The Relationship of the Children with Significant Persons
I have to take into account and consider the children’s relationship with significant persons. I am very deeply concerned about [X]’s relationship with the father. It seems to be completely fractured and something that needs to be determined at a trial is:
a)What has caused that;
b)To what extent the parents themselves have been responsible for it; and
c)To what extent the child’s own sensitive nature has been responsible for it.
I certainly have to take into account that the siblings, [X] and [Z], have a relationship with each other that is relevant. I note that [Z] and [X] have always primarily lived with their mother. [Y], of course, is not in dispute in this matter. The mother accepts that she is to continue living with the father.
Parenting and Discharge of Parenting Responsibilities
I have to take into account the parenting and the discharge of parenting responsibilities. The willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I am struggling with that in this matter because the mother, unilaterally, took the two children, [X] and [Z], and removed them from an arrangement that she had consented to as recently as March of 2010. She provided no information to the father on his case. The mother says that the father knew they were going to [L]. I cannot make any findings about that but certainly it is the case that no arrangements were put in place. It seems that the father did not consent to the move, in that he has tried to file, immediately upon the children leaving the area, a recovery order and, really, the Court was the slow step in the proceedings, not being able to list it until May. That is just a difficulty we have with the number of urgent applications we face in this Registry.
I cannot make any final findings about the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship, but I am concerned about the mother’s capacity to do that. I make no finding at this stage, however.
I also am concerned about the mother not having facilitated the father participating in any parenting decisions with respect to [X] and [Z] during the time that she was in [L]. The mother did not ensure that the children spent any time with him, either by telephone or in person. These are concerns that I have that are relevant, in my view, to the decision I have come to.
Effect of Any Change in the Children’s Circumstances
I have to take into account the effect of any change in the children’s circumstances. In this case I am satisfied that if I am to move any of the children back to the father, it could only be [Z]. [X] simply could not manage that sort of a change.
So I am faced, then, with a situation where I may have to look at the effect of the sibling relationship. If I were to move [Z] to the father, what would that do and what concerns might that create? I raised that with Mr P during his oral report (at page 12 of the transcript of his evidence given on 15 July 2011):
“HER HONOUR: Yes. I will be struggling to leave them there, but, I mean, mum might decide that she doesn’t want to come back to Queensland, and I can’t make her, in which case I would probably, and I would ask you to comment on this, I would think very seriously about putting the little boy with dad straightaway. I understand that’s separating siblings, and that’s a bad thing to do usually, but if [X] has had this profound response, the little boy’s risk - family – relationship with the father might be at risk. I know separating siblings isn’t ideal but ‑ ‑ ‑
THE WITNESS: Yes, I – well, your Honour, if I – if I can say something. I – if you look at the evidence on sibling relationships, yes, it is – it’s thought to be a major protective factor in change, but there’s also good evidence to say that if you rupture or – or if you disturb a sibling relationship, providing that – again, a lot of it comes down to the capacity of each parent and to foster that, but sibling relationships are generally thought to be repairable, if you like, and they’re robust across time. Particularly in young – you know, younger children, preadolescent children. Now, I know [X] is 12. She’s - I – like you, I would be reluctant ordinarily to recommend siblings split, but in the overall goal or objective of the court, I would probably rate that as a lower concern ‑ ‑ ‑
HER HONOUR: Okay.
THE WITNESS: ‑ ‑ ‑ than what the – what the court’s objective is, and that is to try and repair the - the parent-child relationship. I – I don’t know whether her Honour wants me to comment on this, but I – I would hope, if the court did make those orders, that the mother would come back to Brisbane…”
I understand that the mother’s decision through her counsel is that she intends to stay in [L].
Having considered those factors, I have to consider whether I should make an order for equal shared parental responsibility. That order is presently in place, so I do not intend to discharge that order today given that the parties consented to it so recently. I will be doing a trial in the matter. At the final hearing of the matter I understand the mother’s application is for sole parental responsibility for [X] and [Z]. It will be when that issue is tested. Having left that presumption in place, as I have indicated, the substantial and significant time that had been put in place in the orders of 2010 is the appropriate order for these children if the parents lived near each other.
Unfortunately, the mother has chosen to live in [L], so I have to consider whether I should order that [Z] be returned to the school that he was attending and to where his sister [Y] lives and to the care of his father, even though he has always primarily lived with his mother.
I am satisfied in the present circumstances that the proposal that the child [Z] be returned to the father is appropriate and in the child’s best interests for the following reasons. He will be returning to the area where he grew up and attended school. He will be returning to his father and his sister. I am not persuaded that a relationship between his father and himself would be encouraged if the mother continues to have him reside in [L].
I had to make an order for [Z] to spend the recent holidays with the father. This was against the mother’s submission, which was that I should not make that order for the child to spend the school holidays with the father. I intend to do a trial in this matter just after Christmas, in early 2012, and I am persuaded in the meantime that it is appropriate for [Z] to live with the father.
I am not satisfied that it is appropriate for [X] to live with the father and I do not intend to make that order. However, I do intend to make the s.65L order. This was recommended by Mr P with respect to [X], to reintroduce her to the father in an environment that is protected and safe.
Mr P said in reference to the s.65L order, that the Court could monitor the progress but also, if the contact is not possible in the community, the Court and upstairs would be able to be used for reuniting. Mr P said that it was a protective environment in which to rekindle a relationship if it is going to be rekindled at all. I am satisfied, therefore, that it is appropriate to make that order.
I do not intend to make any other orders this morning about the contact and time and telephone time. I would like the lawyers, at some stage if not today, to try and work out what are appropriate orders for the time for the children.
Hopefully, the s.65L appointments will be able to take place at the time when the mother is attending up in Queensland to spend time with [Z]. I do not want to make those orders without hearing submissions. I will hear from you on whether you can deal with it today or whether you want some time to perhaps just put in some written submissions on what you want. I am happy to do it on the papers if you prefer to do that.
I would hope that regular telephone and Skype contact can be put in place for the children with each other and with the parents. I would hope that there would be able to be at least one or two weekends in the remaining year where the children will be able to be together either in [L] or up in Queensland, and I would expect that [X] will be available on at least three occasions to spend time with the father under the s.65L order. There is an Independent Children’s Lawyer appointed in this matter, so that Independent Children’s Lawyer will no doubt organise a full family report before the trial.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cassidy FM
Date: 11 August 2011
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