Sheffield and Almond

[2016] FCCA 3416

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEFFIELD & ALMOND [2016] FCCA 3416

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975

Cases cited:

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230 (17 October 2007)

Applicant: MR SHEFFIELD

Respondent: MS ALMOND

File Number: SYC 855 of 2016

Judgment of: Judge Henderson

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Sydney

Delivered on: 13 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Fowler

Solicitors for the Applicant: Garrison Lawyers

Solicitors for the Respondent: Greater Western Legal

ORDERS

1. The matter is listed on 10 and 11 August 2017 at 10am for final hearing in relation to parenting. 

2. The matter is listed on 8 May 2017 at 9:30am for mention following the release of the family report and for trial directions. If the report is available, both parties are to attend with their legal representatives.

3. The mother is to cause the child X born (omitted) 2013 to be returned to the Sydney Metropolitan area within 42 days.

4. The mother may elect to live in the premises occupied by the father upon giving the father 7 days’ notice of her intention to do so with the father to pay rent for the property in advance for the period of 1 month.

5. Thereafter the father will vacate the property at least 2 days prior to the mother’s arrival in Sydney and is thereafter without admission and prejudice injuncted and restrained from attending at the property unless by express written invitation by the mother.

6. The child to live with the mother.

7. The child spend time with the father as follows:

   (a)Each alternate weekend from 9am Saturday until 5pm Sunday commencing the first weekend after the mother returns to Sydney;

   (b)Each alternate Wednesday from 9am until Thursday at 5pm, or such other time as the parties agree, commencing the second weekend after the mother returns to Sydney and this time may include the child attending day care during the father’s time;

   (c)At all other times as agreed between the parents.

8. The mother is injuncted and restrained from permitting the child from calling her husband “daddy” and is to ensure and use her best endeavours to make the child aware she has one father and his name is Mr Sheffield.

9. Family Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit 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 by 18 April 2016.

10. The Family Report to deal with the following matters:

    (a)The benefit to the child of a meaningful relationship with each parent.

    (b)The capacity of each parent to protect the child from harm.

    (c)The impact on the child and on each parent’s capacity if the allegations they each make against each other of poor behaviour and family violence are found to be correct by the Court. 

    (d)The capacity of each parent to promote the psychological, emotional and educational well being of the child. 

    (e)The impact on the child and on her relationship with her mother if the Court made orders as sought by the father.

    (f)The impact on the child and on her relationship with her father if the Court made orders as sought by the mother.

    (g)The insight of each parent into the child’s needs.

    (h)Whether either parent has failed to spend time with the child when they had an opportunity to do so.

    (i)The attitude of each parent to the responsibilities of parenthood.

    (j)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

11. The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.

12. The Family Consultant has leave to view all material produced under subpoena and released for inspection.

13. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the family report.

14. The parties have leave to view all material produced under subpoena.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 855 of 2016

MR SHEFFIELD

Applicant

And

MS ALMOND

Respondent

REASONS FOR JUDGMENT

1. The matter of Sheffield & Almond is an application by a father for the return of his daughter X, born (omitted) 2013, from (omitted) where she was unilaterally moved by her mother in about January 2016. The father moved post-haste to bring an application to this Court to rectify what the mother had done. Given the delays in this Court the matter could not be dealt with even on an interim basis until October 2016, and that is simply unacceptable in this jurisdiction. However, that is the position the Court and litigants find themselves in at present.

2. The documents I read are as follows:

   a)For the father:

   i)Application filed 17 February 2016;

   ii)Affidavit of the father filed on 5 August 2016;

   iii)Affidavit of the father filed on 23 September 2016;

   iv)Affidavit of Ms C filed 4 October 2016; and

   v)Affidavit of the paternal grandmother filed 4 October 2010.

   b)For the mother:

   i)Response filed 29 July 2016;

   ii)Affidavit of the mother filed 9 September 2016; and

   iii)Affidavit of the mother filed 29 July 2016.

3. Mother’s exhibit 1 is a document from the child’s preschool where she attends in (omitted).

4. The mother’s material causes me concern in that it is clear from a reading of her affidavit of 29 July 2016 that it was her intention that the Court formed the view that she was a single mother living on her own with her daughter, struggling to pay her rent in Sydney and finding her circumstances exceedingly difficult. The reality is that the mother had remarried in 2015 and had failed to disclose that fact to the Court in her affidavit of 29 July 2016 and was, at the date of filing that affidavit and had been for some time, living with her husband.

5. The mother makes scant reference to her husband in her second affidavit of 9 September 2016 merely telling the Court she married him in (omitted) 2015 and that she and her husband have now purchased a block of land in (omitted), which is apparently unencumbered, for some $147,000. That they intend to live in (omitted), intend to build a home in (omitted) and that she has obtained employment in (omitted). There is not one piece of information about her husband in this material, that is, as to his work commitments, his income, what his assets and liabilities are, whether he has other family etc.

6. The mother’s attempt to show she has solely supported her daughter and was solely supporting herself in Sydney from separation in November 2014 to date was an untruth. The mother was not in that position as she had remarried in (omitted) 2015. That falsehood causes me difficulty with other matters that the mother raises, in terms of her veracity. The mother has simply not been open with the Court.

7. I do not accept that she at any time informed the father that she intended to remove their daughter to (omitted), which is 400 kilometres from Sydney. At that time the child was spending every weekend with her father. It may ultimately be an appropriate decision for the Court to make namely the child living in (omitted) with her mother. The mother is entitled to live in (omitted). However, where there is a very young child developing her important relationship with her father, I accept the mother made this decision without informing the father because she knew perfectly well he would object to the significant difficulties with such a move.

8. What has happened since that time? I accept the child has settled in well in (omitted) and that her mother provides a lovely environment for her. The mother and her husband rent a three-bedroom home in (omitted) for $380 a week, which is the cost of a one-bedroom unit in Sydney. All of those matters I accept. That they intend to live in (omitted), are to build a home and see their life continuing are matters I do not cavil with. However, this is an interim hearing, and the father’s application is for the mother to cause the child to be returned.

9. I accept the mother’s evidence that if I order her to return the child to Sydney, she will accompany the child and would not have the child living with the father, and that is a proper attitude given the child’s young age. I am also of the view that the mother was the child’s primary carer throughout the relationship. That position in no way diminishes the input of the father into the child’s life or the strong relationship he and his daughter have, but the mother has been the child’s primary carer.

10. The mother first makes serious allegations of the father’s poor behaviour only after separation in November 2015. Her allegations include poor behaviour, violence, damaging of property. There is no mention of sexual assault, rape or coercive and, controlling behaviour made. An interim ADVO was taken out and that was withdrawn and dismissed.

11. In April 2016 the mother, makes most serious and quite heinous allegations of the father forcing himself upon her when she’s breastfeeding, effectively raping her, constant requests for sex, sexual assault and other controlling, belittling, demeaning behaviours.

12. Given the view that I have formed about the mother’s veracity I have difficulties accepting these allegations by the mother. However this is an interim hearing and I cannot make those findings today.

13. The father denies the April 2016 allegations. There is a significant inconsistency in this matter which I cannot cut across, which is that the mother makes the most heinous allegations of poor behaviour against the father yet the child was spending overnight time every weekend with her father.

14. A submission by the mother’s lawyer that there is no allegation that the father ever harmed the child does not satisfy me. If this is the way this man behaved to this woman, you would not want him to care for your goldfish, let alone your precious three and a half year old daughter. Thus I have significant difficulty in accepting the mother’s allegations or that this child is in any risk of harm in either parent’s care.

15. Indeed, she is not at risk of harm. X is a well-cared-for child developing well, reaching all her milestones, which is a testament to the mother’s excellent parenting of the child, her capacity to have promoted a relationship with the child and the father, and the father’s capacity to have a relationship with his daughter. In that sense, this child is fortunate. However, this is a young child. The distance is significant. The child has now been subjected to significant travel each month in order to maintain her relationship with her father, and going, as I must, to the law and the pathway set out in in Goode & Goode[1] and looking at decisions such as Morgan & Miles[2] relocations are not treated as a special category of parenting matters.

    [1] Goode & Goode [2006] FamCA 1346.

    [2] Morgan & Miles [2007] FamCA 1230 (17 October 2007).

16. They are merely parenting applications, and the relocation and distance is one of the factors I am to take into account. The child’s best interest is paramount, but the question is how do I determine what is the child’s best interest. The child’s best interest is not the sole or only consideration. The parents’ legitimate interests – and the mother is perfectly entitled to live in (omitted) – is not irrelevant but must be subsumed to the best interests of the child.

17. I must consider the parties’ competing proposals. The mother would maintain the regime of time which is currently the place by the child spending time in Sydney one week in a month and the spending time with the child in (omitted) once a month resulting in the child seeing her father each alternate weekend.

18. The father says the child should return to Sydney and spend weekly time with him as she had been used to prior to the move, which was every weekend. This is not an application where an order for no time is sought and the father will, on any version of the events, always spend time with his daughter.

19. Looking at the matters I must under the Act, the child clearly benefits from a meaningful relationship with each of her parents; that became clear from the child dispute conference which was held on 13 September 2016.

20. I do not accept this child has been subjected to abuse, violence or poor behaviour from either of her parents whilst in her care.

21. Her wishes are irrelevant; she is too young; we do not know what they are.

22. The capacity of each parent: both parents have a high capacity to provide for the needs of their child both psychologically, emotionally and educationally. She is progressing well. She is much-loved child. Both parents have demonstrated a capacity to be able to understand the needs of their child; however, the mother’s insight into the importance of the father in the child’s life is at question for me, firstly because of her unilateral decision to remove the child to (omitted). Secondly, it is clear from mother’s exhibit 1 that the child calls the mother’s new husband “daddy”.

23. X has one daddy and that is her daddy in Sydney. I can understand why the father would be concerned, with the distance between he and his daughter, the mother obviously allowing the child to call her husband daddy, that his role and his importance in the child’s life may, as time goes on and this long-distance commute becomes more difficult, diminish. So there is a question mark about the mother’s insight into the importance for the child of her meaningful relationship with her father on the evidence I see today.

24. If I order the child to return to Sydney, that will be a change to her usual care regime, which has been living in (omitted), which I accept is a more than appropriate environment.

25. However the time between this hearing and the mother’s move has come about by delays in this Court and for no other reason. Had the matter been able to be dealt with appropriately, as it should have been, in March 2016, these issues would not have arisen. Time is now a factor. I accept the submission by the mother’s lawyer that if I order the mother to return the child to Sydney now and then at a final hearing an order is made for the mother to live with the child in (omitted) the child may go through two changes. Certainly the Court will act to avoid multiple changes, but it is fairly clear to me from the mother’s not evidence that X is an emotionally robust child who is well able to cope with change, and she has done so in the past. Thus I do not see that as such as significant factor in this matter.

26. The major concern this Court has is the diminishing of this child’s right to the benefit of a meaningful relationship with her father if she remains in (omitted) with her mother with the distances to travel and the minimising of the father in the child eyes by the mother. That consequence really lies at the feet of the mother. Her conduct, actions and failure to tell the Court and father the totality of the situation she was in has caused me to have concerns about her veracity and her capacity to put her child’s needs before her own needs. This capacity is one of the significant factors in any parenting matter.

27. For those reasons, I find the order is in this child’s best interest is that– the mother be ordered to return the child to Sydney. I will give the mother 42 days to do that because this is quite a significant change for her.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 11 January 2017