Scott and Moonie

[2008] FamCA 170

FAMILY COURT OF AUSTRALIA

SCOTT & MOONIE [2008] FamCA 170

FAMILY LAW - CHILDREN – mother long-standing custodian in northern Queensland – to live with father in southern Queensland by agreement – substantial change – separation from half-siblings and step-siblings – girls have reservations – orders in accordance with parents’ decisions notwithstanding

APPLICANT: Mr Scott

RESPONDENT: Ms Moonie

FILE NUMBER: BRF 3284 of 2004

DATE DELIVERED: 21 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 21 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M J Emerson, Emerson Family Law, as Town Agent for Legal Aid Queensland

SOLICITOR FOR THE RESPONDENT: Ms M E Cuthbertson, Edna Cuthbertson & Co, by telephone-link

INDEPENDENT CHILDREN'S LAWYER Ms K J Hawdon, Forest Glen Lawyers

Orders

1. That the children of the parties, namely V (born on … June 1996) and A (born on … July 1997) (“the children”), live with the Father.

1. That the parties have equal shared parenting responsibilities for making decisions concerning the long-term care, welfare and development of the children and each of them.

1. That the party in whose care the children or either of them may be from time to time have sole parenting responsibility for making decisions concerning the day-to-day care, welfare and development of such child or children.

1. That the children spend time and communicate with the Mother as follows:

a.   for four consecutive weeks during the Queensland gazetted Christmas school vacation period in each year, which time shall commence one week after the last day of the school year;

b.   for the entirety of the Queensland gazetted winter school vacation period in each year;

c.   for the entirety of the Queensland gazetted spring school vacation period in each year, provided always that the Mother has provided six weeks notice in writing to the Father of her intention that the children spend such time with her during such period and further provided that the Mother shall be entirely responsible for all expenses of and incidental to the return travel of the children between Brisbane and northern Queensland.  For the purposes of this sub-paragraph, such notice shall be in writing and forwarded to the Father’s residential address by way of a form of pre-paid post which requires a receipt for delivery;

d.   by way of telephone, with the Mother at her sole expense to telephone to speak with the children at 7:00 pm on every Sunday and at 7:00 pm on every Wednesday and with the Father to ensure that the children are able to receive such telephone calls;

e.   further, by way of telephone, with the Father to permit the children and each of them upon request to telephone the Mother at any reasonable time when they or either of them are in his care, at his sole expense;

f.   when the children or either of them are spending time with the Mother, the Father shall be at liberty at his sole expense to telephone such child or children at 7:00 pm on every Sunday and at 7:00 pm on every Wednesday.  Further, the Mother shall permit the children and each of them upon request to telephone the Father at any reasonable time when they or either of them are in her care, at her sole expense; and

g.   save as expressly aforesaid, the Mother shall be entirely responsible for the expenses involved for the children to travel from Brisbane to northern Queensland at the commencement of any period of time that the children are to spend time with the Mother and the Father shall be entirely responsible for the expenses involved for the children to travel from northern Queensland to southern Queensland at the conclusion of any period that the children have been spending time with the Mother.

1. That neither party denigrate the other party (or spouse, significant partner or family member of the other party) to the children or otherwise in the presence of or in the hearing of the children or either of them.

1. That both parties advise the other party, as soon as reasonably practicable, regarding any serious injury or serious injury requiring any medical or hospital attention for either child.

1. That each party advise the other party as to the name, address and contact telephone number of any medical practitioner, health care provider, hospital, educational institution, youth group or similar social organisation, Government Department or similar governmental institution who or which the children or either of them come into any contact with and this Order hereby authorises any such individual or organisation to communicate fully with both parties regarding such child or children.

1. That each party advise the other party as to his or her residential address, postal address, residential telephone number, mobile telephone number and email address (where applicable, in each case) and shall further advise the other party within fourteen days prior to any prospective change and within two days after any actual change to any such particulars.

1. That the Independent Children’s Lawyer be discharged.

1. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Scott & Moonie is approved pursuant to s 121(9)(g) of the Family Law Act1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3284 of 2004

MR SCOTT

Applicant

And

MS MOONIE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the parties approached the Court and asked it to make orders in accordance with the terms agreed to by the parents which will see the subject children, V, born in June 1996, and A, born in July 1997, move from the residence of their mother in northern Queensland to their father's residence in southern Queensland.

2. The proposed changed living arrangements represent a substantial departure from historical arrangements for these girls.  They have resided primarily in the full-time care of their mother and had only a limited relationship and limited contact with their father until recent times.

3. Further, the mother has in her household, or under her care, other children, including a half-sister and young twin boys, babies aged 10 months, and the children have, for some time, had a developing relationship with the children of the mother's partner.  The proposed move would involve the severing, to some extent, of those relationships and the imposition of substantial changes upon the children as a consequence of moving from northern Queensland to southern Queensland. 

4. The Independent Children's Lawyer has some reservations as a consequence of those matters and, perhaps even more importantly, as a consequence of the ambivalence, at best, of the girls in relation to the proposed change. 

5. This case has been before me, I believe, for at least 12 months.  It has presented each of the parties and their children with significant challenges.  The mother has confronted in the lifetime of these children a number of challenges personally and as a parent.  I am satisfied on the information available to me that she has done her best to cope with the many significant challenges she has dealt with and continues to deal with. 

6. For his part, the father has played a limited role in the girls' lives, he says, despite his efforts to the contrary.  However, it is clear that he has been properly motivated by what he has perceived to be in his children's best interests in seeking such a radical change to his daughters' living arrangements.

7. I accept that the decision made by the mother has been a difficult one for her and has presented her daughters with difficulty.  However, particularly having regard to the contents of the most recent report, I am satisfied that she is properly motivated in the decision process she has embarked upon.  I accept, as she said to the counsellor, that she perceives that it is in her daughter's best interests to have the opportunity to spend time with and, at this stage at the very least, be raised by their father.  She perceives that he is in a better position to provide for their children and better able to meet their needs at this time.

8. I accept that, in that sense, each of the parents in this case is trying to make selfless decisions.  I accept, for example, that the mother says that the selfish part of her would like to hold onto the girls, but that she would see that that would be a focus upon her interests and not on the best interests of her daughters.  In that sense, she is making a very significant sacrifice for the benefit of her children.

9. Obviously, from the father's point of view, the easier option for him would have been to remain as a contact parent.  The report also discloses that he is fully aware of the challenges he is volunteering to take on. 

10. Of course, the Court, like the Independent Children's Lawyer, is concerned about the separation of siblings and the interruption of long-standing arrangements.  In this case, there is the added burden of observing that the girls are uncertain about their future with their father.  Nevertheless, I have formed the view that the parents are best able to judge what is in the best interests of their children.  I am satisfied that they have each arrived at their positions on a considered and certainly not a hasty basis.  I am satisfied that each parent displays insight into the potential advantages for their daughters in the proposed arrangements and, importantly, that they have each displayed insight into the many challenges ahead for the girls under the current arrangements.  In particular, I conclude that the father has demonstrated an awareness of, and insight into, the difficulties likely to confront both himself and his daughters in implementing these arrangements.

11. Importantly, the father has the support of extended family and, particularly, the likely close support of the paternal grandmother. 

12. Importantly, the parents have worked on improving their communication and that can only serve to enhance the prospects of the parents being able to make this work effectively for their daughters. 

13. In all the circumstances, particularly given that I am satisfied that the mother has considered this carefully and that I place a great deal of weight on her perception, on balance, and notwithstanding the inherent difficulties, I find the daughters' best interests would be served by being cared for by their father at this time. 

14. I am prepared to make orders in terms of the proposed orders. 

15. I do encourage the parents to continue to work on their communication skills and their level of co-operation, because this is likely to be a difficult time for these young women at a stage in their lives which has enough challenges, no doubt, as it is. 

16. Otherwise, I commend the parties for resolving this matter and I propose to make orders in terms of the draft orders signed by the parties.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: