Sawyer & Sawyer
[2010] FMCAfam 329
•19 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAWYER & SAWYER | [2010] FMCAfam 329 |
| FAMILY LAW – Interim arrangements for care of children aged 10, 6 and 5 – father alleges mother has unilaterally relocated children’s place of residence from the outskirts of Adelaide to Western New South Wales – best interests – principles to be applied to relocation cases at interim stage. |
| Family Law Act 1975, s.61DA |
| Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR SAWYER |
| Respondent: | MS SAWYER |
| File Number: | ADC 427 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 19 February 2010 |
| Date of Last Submission: | 19 February 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 19 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Boril Olds Solicitors |
| Counsel for the Respondent: | Mr McDonald |
| Solicitors for the Respondent: | Austen Brown Boog |
ORDERS
This matter be listed for final hearing before Federal Magistrate Brown on 15 and 16 July 2010 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 17 June 2010.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 1 July 2010.
The applicant pay the hearing fee or file a remission certificate in respect thereof on or before close of Registry filing on 10 June 2010.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on or before 3 June 2010.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said children.
The mother return the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 to [T] in the State of South Australia by midday 26 February 2010.
In the event that the mother elects to live within a radius of 20 kilometres of the [T] Police Station pending further determination of the parties’ completing applications, the children live with the mother and spend time with the father as follows:
(a)each weekend commencing 27 February 2010 from 9.00 am to 6.00 pm the following Sunday on the first weekend only and thereafter from the conclusion of school Friday until the commencement of school the following Monday.
The children be exchanged between the parties at their school or such other location as agreed between the parties and failing agreement at the [T] Police Station.
In the event that the children live with the mother pursuant to order 8 hereof she re-enrol them at the [T] School.
In the event that the mother elects not to live within a radius of 20 kilometres of the [T] Police Station pending further determination of the parties’ completing applications the children live with the father and spend time with the mother at such times and such conditions as agreed between the parties.
In the event that the mother fails to comply with order 7 hereof a recovery order will issue.
The father provide the mother with the sum of six hundred dollars ($600.00) to assist her with accommodation in the event that she elects to live in the [T] area pending final hearing of this matter.
Pending the mother’s return to South Australia pursuant to order 7 hereof the father have telephone contact with the children each evening at 5.30 pm (NSW time) with the father to telephone the mother’s mobile telephone.
Further consideration of the matter is adjourned to 11 March 2010 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 427 of 2010
| MR SAWYER |
Applicant
And
| MS SAWYER |
Respondent
REASONS FOR JUDGMENT
The urgency of this situation in this case dictated that these reasons for judgment should be delivered orally, immediately following the interim hearing. Given the importance of the matter to the parties, the reasons have been transcribed.
This afternoon, I have to deal with the matter of Sawyer. The applicant in the proceedings is Mr Sawyer and the respondent is Ms Sawyer. I will refer to Mr Sawyer as “the father” in these reasons for judgment and to Ms Sawyer as “the mother”.
The parties are the parents of two children. Firstly, [Y], who was born [in] 2003 and secondly [Z], who was born [in] 2005.
The mother has some other children as a result of an earlier relationship. Relevant in these proceedings is her daughter, [X], who was born [in] 2000. Mr Sawyer is not [X]’s father, but it is his position that he has been significantly involved with her care since she was very young.
In his application, which was filed on 8 February, the father is seeking orders that, at the interim stage, the children concerned should be returned to live with him at his home in [address omitted] in [T], which is a township on the northern fringe of Adelaide.
The mother responded to the application recently. She did so on 18 February 2010. On both an interim and final basis, she wishes [Z] and [Y] and of course, necessarily, [X] – that those children should live with her in [M] in Western New South Wales and continue to attend school at the [M] School.
The father’s application was listed urgently, at his request, today 19 February 2010. The reason for the urgency is, perhaps, apparent from how I have outlined the parties’ competing applications. At the moment, Mr Sawyer continues to live in [T], where he and the mother and the children lived as a family until fairly recently. The mother and [Y], [Z] and [X] are living in [M] in New South Wales.
It is the father’s position that the movement of the children to [M], on a permanent basis, was something to which he did not agree and about which he was not fully consulted, if at all. It is the mother’s position that her circumstances were such that she had no real alternative other than to go to [M] and live there with the children concerned because that is where she feels safe and secure and where she has family members who will support her.
Accordingly, this is the type of case which lawyers categorise as being to do with issues of relocation. As I said to Mr McDonald, when the matter was called on earlier today, cases involving issues of relocation in this court and the Family Court are notoriously difficult. The High Court has indicated that they are cases which require a delicate analysis because the circumstances surrounding each relocation case is necessarily different.
However, in broad terms, the reason for the difficulty can be easily described. Firstly, as citizens of a free country, we prize our freedom to live how and where we choose. There is no principle of law which requires separated parents to live indefinitely close to one another upon their cessation of a marital relationship.
However, secondly on the other hand, pursuant to principles in the Family Law Act – to which I’ll return in a moment – children have an entitlement to maintain a relationship with both of their parents, it being, I think, self-apparent that children usually benefit from having a meaningful level of relationship with both their parents.
In circumstances where one parent, for legitimate reasons, wishes to live away from the other parent concerned, these principles come into conflict and the court must resolve them. In resolving these types of issue, the best interests of any child or children concerned remains the paramount or most important consideration. However, I can not ignore the legitimate interests of the parent who wants to pursue interests in a particular geographical locale away from the other parent concerned.
As the parties are aware, I am dealing with this case at an interim basis. What that means is this. Today not a great deal of time has been set aside to deal with the parties’ competing applications. At this stage there isn’t time for there to be any thorough examination of the respective positions of each of the parties. Neither of them has entered the witness box. Neither of them has been cross-examined. Necessarily, at this stage, the time allocated for hearing must be brief.
In addition, there may be other pieces of evidence which are likely to be important in determining this case on a final basis. The most important piece of evidence is likely to be some form of independent assessment of the children and their needs, which will be provided by either a psychologist or a social worker who has expertise in assessing parent/child relationships in the context of court proceedings such as these. Such a report, for obvious reasons, cannot be prepared for this hearing, which arises against a background of urgency.
At this stage, I have only read fairly brief affidavits from each of the parties. There are conflicts in the evidentiary account provided by each of the parties in those affidavits. Due to the absence of cross-examination and lack of opportunity to conduct a more thorough examination of the evidence, I can not resolve those conflicts at this stage. However, a decision needs to be made and clearly, from
Mr Sawyer’s point of view, there is an urgency about the matter because he has not seen the children for some weeks.
It is the father’s fear that, if urgent steps are not taken and the children continue to live far away from him, he may lose the warmth and intimacy of his relationship, certainly with [Y] and [Z], because of their tender years.
In the longer term, in his application filed on 8 February 2010, he aspires to the children living with their parents in a shared care arrangement and clearly that arrangement will be impossible if they continue to live in [M], unless he himself moves to [M] to be closer to them, which he is disinclined to do.
The factual situation, in broad terms, can be set out in this matter relatively easily. The parties were married [in] 2003, although they met prior to that – two or three years earlier. As I understand matters, the parties lived together for the majority of their marriage in South Australia. Firstly in a northern suburb of Adelaide and, more recently, at [T].
The father is a [omitted] by occupation. The mother, he concedes, was the parent who provided more of the children’s’ care than he did because she was not in the paid workforce and he was. It is common ground, I think, between the parties that the mother has a brother,
Mr C, who lives in [M], New South Wales.
There is a significant dispute between the parties as to the circumstances surrounding their separation and precisely when and why they did separate. It is the father’s case that the mother expressed some dissatisfaction with the parties’ relationship and was anxious to go to [M] for a period of time to live with her brother and earn some money [occupation omitted]. It was his understanding that she would ultimately be returning to South Australia and the parties were not separating as such.
It is his case, as I understand it, that the mother and the children left South Australia prior to Christmas time to go [occupation omitted]. They returned for the Christmas period from 23 December to
26 December and a lot of the children’s’ clothes and toys were left in Adelaide and the mother returned to [occupation omitted]. The father says he went to [M] on 7 January and had some concerns that the children were being cared for by a teenage girl. This was of concern to him particularly because [Z] suffers from haemophilia and the father was concerned that she was not an appropriate custodian. But, importantly, it is his case that, in early January he did not think the parties had separated.
It is his case that on 21 January he telephoned the mother and asked her when she and the children would be coming home and he was then told that she was wishing to finalise a separation from the father and would not be coming back. Accordingly, about a fortnight later, the father commenced these proceedings. He therefore, I do not think, can be criticised for any delay in bringing these proceedings.
The father is concerned about a number of matters. He is concerned that [Z]’s haemophilia will not get the same level of treatment in a rural area of New South Wales as he would in metropolitan South Australia. He is also concerned that the mother has issues to do with gambling and has fallen into debt and there may be issues in respect of her level of debt and her use of monies, whilst she was in South Australia, which influenced her decision to move to [M].
The father’s position is that the movement of the children to [M] was unilateral and that as soon as he became aware of the mother’s intention to permanently reside in [M], he brought these proceedings. He is concerned that he will lose his relationship with the children. He categorises himself as a person and a parent who has been involved with the children’s’ care in the past – taking them camping and playing with them and so on and so forth. Certainly he rebuts any suggestion that he is disinterested in their welfare.
No doubt he would point to the fact that the parents of children are under an obligation to make joint decisions about major long-term issues to do with their child or children and accordingly it would be his case that a change in [Z], [Y] and [X]’s living arrangements, which necessarily must make it significantly more difficult for him to spend time with the children, is such a major long-term issue, which the mother should not have taken alone. For those reasons he asserts that it is appropriate that, at least until the final hearing of this matter, I should make orders that would result in the children returning to the area of [T].
The mother asserts that the parties did separate on 18 December 2009. She does not flesh out in any detail whether there was any discussion about that issue between the parties or whether she formally conveyed her decision about it to the father. I concede that it is not necessary for a marital separation to be consensual but, as I say, she does not flesh out in any detail the circumstances of what occurred, from her perspective, on 18 December. However, it is her case that she could no longer cope with what she terms the excessive drinking, the drug use and the abuse that the father occasioned to her.
So, in essence, it seems to be her position that she had no alternative but to move to [M] on 18 December. She says that she decided to move back to [M] because it is where she grew up and where she has family connections. It is now her case that the children are well settled in [M]. No doubt Mr Sawyer would make some challenge to that, given that the children have only been there since December.
At any event, it is her case that [Z]’s haemophilia can be well-managed in [M] and she has some concerns about how well Mr Sawyer would deal with that condition. It is also her case that Mr Sawyer is not really interested in the two children, [Y] and [Z]. She says that he is impatient with them and, by implication, she suggests that the children do not have a particularly good relationship with their father. More recently, she has sought an apprehended violence order against Mr Sawyer in the [omitted] local court. That seems to have come about because she alleges that the father has made threats about her safety on the telephone.
At this stage, the positions of the parties are greatly polarised. It is the mother’s position that she is the children’s’ primary carer, that she and they are now happy and well-settled in [M] and that, if she is compelled to come back to South Australia, she will be unhappy and necessarily this must have implications for the well-being of the children concerned.
As I indicated to Mr McDonald, I have no authority to compel
Ms Sawyer to live anywhere. Where she lives is a matter for her. My authority only deals with the best interests of the children concerned.
However, I am told that, if it is my ruling, at this early stage, that the children, should live in South Australia, she would return so that she could provide their principal place of residence. It is however, her case that she has little financial security at the present time and it is essentially impossibly for her to return to South Australia because of her lack of support in the state. She refutes any suggestion she could live with her mother temporarily because, I am told by her counsel, Mr McDonald, that she is estranged from her mother.
As I indicated during the hearing of this matter, it is a common scenario, in cases like this, that a parent who has left a state because he or she asserts that there was no alternative but to go to where that parent had familial support that although the parent could leave easily enough, it will close to impossible to return. Again, that is one of the great and frequent complicating factors in relocation cases.
Mr Sawyer says he has borrowed a significant sum of money to pay debts, which he asserts are related to the mother’s financial misconduct and he says that he is not in a strong financial position, something which I accept given the overall circumstances of this case. However, he is prepared to advance the sum of $300 to help the mother. At the end of the day, I suspect that such a sum will not go very far. So again, that is one of the complicating factors in this matter, which does not present any easy or ready solution at this stage.
I now turn to the legal principles I have to apply in this case. The service of [Y], [Z] and [X]’s best interests is the most important consideration in this case. The same principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child whereas final proceedings do.
As is clear from what I have already said, it is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their children’s’ best interests.
The aims and principles of the part of the Family Law Act, dealing with children, emphasis the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
The best interests of a child rest on twin pillars. Firstly, the benefit to a child of having a meaningful relationship with both of his or her parents. Secondly, the need to protect children from harm as a result of being subjected to abuse, neglect or family violence.
In this case, the father places greater emphasis on the children continuing to have a meaningful relationship with both their parents. The mother necessarily places greater emphasis on the need to protect the children, from either direct harm or emotional harm as a result of exposure to what she categorises as the father’s abusive and addictive behaviour.
I have to make some sort of assessment of the risk of Mr Sawyer’s behaviour and in this regard it is difficult for me to make any concluded finding of fact about the mother’s allegations of excessive drinking, unspecified drug use and abuse. The mother’s allegations are not delineated with any precision.
Because of the emphasis on both a child’s parents being involved in providing care for a child, the starting point for any parenting order is for the court to consider whether the parents concerned should have equal shared parental responsibility for their child.
That presumption deals with the allocation of parental responsibility, not the strict division of time. The court has a discretion not to apply the presumption, at either the interim or the final stage, if it is concerned that it would not be in the best interests of a child for it to be applied or if it is found on reasonable grounds that one of the parents concerned has abused the child concerned or exposed him or her to family violence. At the interim stage, the court has a discretion not to apply the presumption if it believes it would be inappropriate for it to do so.
In this case, I think, it is difficult to see how the presumption of equal shared parental responsibility could easily be applied. But before determining that issue finally – in the context of today’s proceedings I should say – I will turn to the matters I have to consider in determining the best interests of these three children.
In so doing, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider, primary considerations and additional considerations.
The primary considerations take up the key factors in the legislation and they are twofold. Firstly, the need to ensure that the child or children concerned have a meaningful relationship with both their parents and, secondly, the need to ensure they are protected from harm, both physical and psychological harm which may arise if they are exposed to any kind of abuse or neglect including family violence.
The full court, in the case of Goode & Goode[1], has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them.
[1] Goode & Goode (2006) FLC 93-286
In this case, it is difficult to see how the children can have a meaningful relationship, given their ages, with their father if he remains in [T] and the mother and the children remain in [M].
I do not underestimate in any way the mother’s allegations about the father’s poor previous conduct. However, at this stage I do not think that the conduct of which she complains is so significant that her only real recourse was to move interstate with the children and I will come back to that issue and its significance in a moment.
The children clearly are too young to express any view about what is the appropriate outcome from their point of view. I accept that it is probably more likely than not that the mother has provided more care to the children concerned. However, until recently, the father shared a household with the children. He is not biologically related to [X], but I do not disregard his interest in her welfare, given that he has been in loco parentis for the vast majority of [X]’s life.
I have to consider the willingness of the parties concerned to facilitate and encourage a close and continuing relationship between the children concerned and the other parent. In this regard, it would seem at first blush that the mother has shown a flawed insight into this responsibility because she has given, it seems to me, little thought to how the children can maintain a relationship with their father if she continues to live with them in [M].
I have to consider the likely effect of any changes in the children’s’ circumstances, including the likely effect on the children of any separation from either of their parents. This is, of course, a significant factor in a case such as this one.
The two boys are young. Young children rely on frequency of time with a parent to sustain and grow significant relationships. In my view it is a far more significant thing for a primary school child to be separated from a parent than for a teenager.
The distance between Adelaide and [M] is 590 kilometres. It is a significant distance. Necessarily that will create all sorts of practical difficulties and expense in the children maintaining a relationship with their father.
The parties are not well resourced financially. These financial considerations must impact upon any future contact arrangements for the children to spend time with the father, if they remain living in [M].
Given the limited evidence which is usually available at the interim stage, the court, for obvious reasons, must exercise considerable caution in respect of relocation issues where the evidence is necessarily provisionally and untested.
Accordingly, the Full Court of the Family Court, in the case of C & S[2], has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.
[2] C & S [1998] FamCA 66
In this case it seems clear that it is as a result of the actions of
Ms Sawyer alone that significant difficulties have arisen in regards to the children maintaining a relationship with their father. It is necessary for me to consider whether the circumstances confronting the mother provided significant justification for her move of the children.
In a more recent case of Morgan & Miles[3], Boland J has reiterated the principle set out in C & S and has said that the only circumstances usually justifying the relocation of a child or children away from one parent, at the interim stage, is a background of real and significant emergency.
[3] Morgan & Miles [2007] FamCA 1230
In this case, there is considerable conflict between the parties about what happened in December but even if I accept the mother’s case at its highest, I do not think that it was a situation of such emergency that her only recourse was to move the children far away from their father and take them to [M].
In this case I think I need to give some pre-eminence to the consideration of the children benefiting from having a meaningful relationship with both of their parents, bearing in mind that the children’s’ relationship with their father has been recently curtailed by the unilateral actions of the mother alone.
I am well aware of the of the mother’s entitlement to freedom of movement and as a consequence of this I will endeavour to allocate the earliest possible date for the hearing of the parties’ competing applications but, pending that date, it is my view that the best interests of the children will be served if they return to live in the [T] area.
As I say, I have no authority to compel Ms Sawyer to live in a location which she finds unhappy. However, if she does elect to live in a reasonable proximity to [T], I have come to the view that, given her significant relationship with the children, that they should live predominantly with her.
Given the inevitable emotions that this decision will precipitate in each of the parties, particularly Ms Sawyer, and the feelings that are likely to have already been precipitated by what has transpired up until this stage, I do not think it would be appropriate, in all the circumstances for me to apply the presumption of equal shared parental responsibility [see Family Law Act at section 61DA(3)].
However, it seems to me that children need to spend significant periods of time with their father in the event the mother returns to live in South Australia. If the mother prefers to live in New South Wales, pending the final hearing, given my criticisms of her behaviour and given that I do not think that it would be appropriate for the children to be prejudiced by her unilateral actions alone in terms of pursuing a relationship with their father, it would be my view that the children will be best served if they live with their father pending final hearing.
I have come to the view that the children need some degree of stability and that stability will be provided in the short to medium term, I think, if they return to their previous primary school. I do not think it would be a good thing that they go to a third primary school in a little over three months.
The difficulty, of course, as with all aspects of the case is that the mother can not easily return to [T]. I accept that, but having created the difficulty by her actions in the first place, it offends, I think, principles of justice and certainly the principles contained in the Family Law Act and the other cases to which I have referred that she can benefit from that situation and say it is too difficult for me to come back now.
So for all those reasons, I propose fixing the parties’ competing applications for final hearing on the 15th and 16th of July 2010 and making the other orders as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 19 February 2010
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