Sheldon and Weir

[2010] FamCA 61

FAMILY COURT OF AUSTRALIA

SHELDON & WEIR [2010] FamCA 61

FAMILY LAW - CHILDREN - With whom a child lives - Interim proceedings - Both mother and father are both seeking orders for the child to live with them - Mother has been the child’s primary carer and is the child’s primary attachment figure - The child to live with the mother and spend time with the father each Wednesday and Sunday from 9am to 4pm

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Sheldon

RESPONDENT: Ms Weir

FILE NUMBER: NCC 3259 of 2009

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 22 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr McDonald

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Kelly (via telephone)

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The Interim Parenting Orders made on 24 December 2009 and 13 January 2010 are discharged.

2. The child R, born … April 2008, (“the child”) shall live with the mother.

3. Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

   a.Each Sunday from 9:00 am to 4:00 pm, commencing on Sunday 24 January 2010; and

   b.Each Wednesday from 9:00 am to 4:00 pm, commencing on Wednesday 27 January 2010.

4. For the purposes of implementing the time spent by the child with the father, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father outside the T Police Station, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

5. The mother shall forthwith surrender to the Registry Manager of the Family Court of Australia at Newcastle all passports held by her.

6. The parties shall forthwith surrender to the Registry Manager of the Family Court of Australia at Newcastle all passports relating to the child.

7. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the child to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on that watch list pending further order.

8. Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 FURTHER ORDERED

1. Any and all outstanding interim applications are dismissed.

2. Proceedings in Family Court of Australia file SYC7936/2009 are consolidated with proceedings in Family Court of Australia file NCC3259/2009.

3. The matter is referred back to the Docket Registrar for further directions.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3259 of 2009

MR SHELDON

Applicant

And

MS WEIR

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Before the Court are parenting proceedings concerning the child, R, born in April 2008 (“the child”). 

2. The litigants in the proceedings are the biological parents of the child.  Those parents are the father, Mr Sheldon, and the mother, Ms Sheldon, now known as Ms Weir.

3. There are two competing interim applications. 

4. The first application is an Application in a Case filed by the father on 4 January 2010.  In that document, the father seeks a number of orders, but the orders pressed in the context of this interim hearing, are as follows: 

   a)Order 3, by which the father seeks an order that the child live with him, although during the course of oral submissions, the father’s solicitor indicated that the father was amenable to an arrangement of equal shared care of the child;

   b)Order 4, by which the father proposes that the child spend time with the mother, subject to the mother surrendering her passport. The uncontested evidence indicates that that has already occurred;

   c)Order 5, by which the father seeks that the mother provide details of her residential address and contact telephone number. Similarly, the uncontested evidence indicates that that has already occurred;

   d)Order 6, by which the father seeks an order that the child be placed on the Airport Watch List.  The common position of the parties is that that should occur; and

   e)Order 8, by which the father seeks a suspension of interim parenting orders made by Justice Coleman of this Court on 24 December 2009.    

5. The second application is an Application in a Case filed by the mother on 11 January 2010.  Similarly, the mother seeks numerous orders in that document, but presses only the following in the context of this interim hearing:

   a)Order 3, by which the mother seeks that the child live with her;

   b)Order 4, by which the mother proposes that the child spend time with the father each Wednesday and Sunday, between the hours of 10:00 am and 3:00 pm;

   c)Order 5, by which the mother proposes that the child be exchanged between the parties at T Police Station.  It is common ground between the parties that that is the appropriate place for changeovers; and

   d)Order 9, by which the mother requires the father to surrender to the court the passports relating to the child.  It is common ground that there are two passports in existence relating to the child, and it is common ground that the parties are willing for those passports to be surrendered to the Court.

6. From the summary of the outstanding orders pursued by the litigants, it will be observed that the only outstanding issue is the time to be spent by the child with each parent pending the final hearing.

The evidence 

1. In support of his position, the father reads in evidence affidavits filed by him on 4 January, 5 January, 12 January and 13 January 2010. 

2. In support of her position, the mother reads affidavits filed by her on 11 and 20 January 2010, an affidavit of the maternal grandfather, Mr Weir, filed on 11 January 2010, and an affidavit of Ms O filed on 15 January 2010.

3. Despite the provisions of the Family Law Rules, neither party takes issue about either the multiplicity of affidavits or the duration of the interim hearing, which has far exceeded the usual two hour time limit. 

4. The affidavit evidence which has been adduced by the parties is lengthy and argumentative.  Although the rules of evidence do not apply in parenting proceedings, little effort has been made to pay the rules of evidence even the slightest respect. The result is an extremely large body of intemperate allegations, opinions and conclusions, which hold very little value for resolution of the interim dispute. 

5. The conflicting evidence is untested by reason of the manner in which interim proceedings are conducted, which procedure will be familiar to the lawyers – namely, the reading of affidavit evidence and the making of submissions without cross-examination of any deponent.  The court must determine interim parenting orders by reference to agreed facts or inferences that fairly arise.  The court is not assisted in the determination of interim proceedings by evidence which remains the subject of controversy.

Background

1. The mother is Irish.  The father is Australian.  The parties travelled to Ireland with the child in December 2008. 

2. The father is and was a teacher.  He was formerly employed in that capacity on a full-time basis.  The mother was the full-time carer for the child before the parties embarked upon their trip to Ireland in December 2008. 

3. Regrettably, the parents separated whilst they were in Ireland, on or about 3 January 2009. Within weeks the father returned alone to Australia. That occurred on or about 27 January 2009. The mother and child remained in Ireland.

4. The father, subsequently, commenced proceedings in Ireland under the Hague Convention, seeking the return of the child to Australia.  The father returned to Ireland for the purposes of conducting that litigation on 24 June 2009, and remained in Ireland then until 27 December 2009.

5. The Irish court made orders as between the parties, under the Hague Convention, on or about 27 January 2009.  Without reciting in full the orders then made by the Irish court, orders were made to the following effect:

   a)That the child return to Australia;

   b)That the custody of the child remain with the mother, pending parenting orders being made by an Australian court;

   c)That the father have regular access to the child for three hours at a time;

   d)That the father afford the mother and child financial accommodation on their return to Australia; and

   e)That parenting proceedings in relation to the child be commenced in Australia as soon as possible.

6. The mother appealed those orders.  The appeal was dismissed on or about 27 November 2009.  Again, without reciting in totality the orders then made, orders were made to the following effect:

   a)That the child return to Australia on or about 27 December 2009;

   b)The child remain in the care of the father for 10 days after the arrival of he and the child back in Australia;

   c)That the mother have access to the child during that 10 day period;

   d)That the child return to the care of the mother at the expiration of that 10 day period.

7. The father instructed Australian attorneys to commence parenting proceedings for him in Australia prior to his departure from the United Kingdom.  As I have already said, the father asserts having departed the United Kingdom with the child on or about 27 December 2009.

8. On 24 December 2009, the father’s then Australian solicitors filed in this Court an Application in a Case seeking parenting orders.  That Application in a Case was heard and determined, on the very same day the application was filed, by Justice Coleman. 

9. Justice Coleman granted the father’s application in all material respects, which included making orders to the following effect:

   a)That the child live with the father for 10 days after his return to Australia with the child on 27 December 2009;

   b)That the child spend time with the mother during that period;

   c)That the child live with the mother at the expiration of that 10 day period;

   d)That the child then spend time with the father each Sunday and Wednesday between the hours of 10 am and 3 pm;

   e)That the changeover of the child be effected between the parties at the T police station; 

   f)That the father provide the mother and the child with accommodation, food, a car and financial support.

10. It will be observed that the orders made by the Family Court on 24 December 2009, consistently with the application of the father, largely replicate the orders that were made previously by the Irish court. 

11. The father asserts, through his present solicitor, that orders of that ilk were sought by his then solicitors due to some misunderstanding. 

12. As a consequence, the father thereafter filed a fresh Application in a Case on 4 January 2010, which is his application now pending before the Court. 

13. In response, the mother filed her Application in a Case on 11 January 2010. 

14. Those two competing Applications in a Case came before Justice Stevenson on 13 January 2010. 

15. It appears as though Justice Stevenson was unable to devote sufficient time to the hearing of those applications and they were adjourned for hearing before Justice Austin on 20 January 2010. 

16. Justice Stevenson made some interim parenting orders that were expressly intended to cover the period between 13 and 20 January 2010. 

17. The hearing of the parties’ Applications in a Case came before Justice Austin on 20 January 2010.  The hearing was commenced and adjourned part-heard until today.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a parenting order.

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made. 

3. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

4. The Court is required to apply a rebuttable presumption that is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child. 

5. However, that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence, and the Court is at liberty to disregard the presumption in interim proceedings if the Court regards that as an appropriate course.

6. If the presumption of equal shared parental responsibility does not apply, and a different form of parental responsibility order is made, then the court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

7. The principles that I have outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Uncontested Evidence

1. The principles to which I have referred require attention to be given to those considerations set out within s 60CC of the Act.

2. For reasons to which I have already adverted, there is insufficient common ground between the parties to reach any firm conclusions about the considerations under s 60CC of the Act, other than for the following matters:

   (a)The child has a meaningful relationship with each parent, which is of                benefit to her. 

   (b)      The mother has been the primary carer for the child in her short life. 

   (c)      The mother has been the primary attachment figure for the child. 

   (d) There will be no difficulty or expense in the transactions of the child between the parties, given that they both live currently on the Central Coast of NSW.

Parental Responsibility

1. As I have already mentioned, the presumption of equal shared parental responsibility applies unless, relevantly:

   (a)There are reasonable grounds to believe that a parent is engaged in family violence – see s 61DA(2)(b), or

   (b)The Court considers that it would not be appropriate to apply the presumption in interim proceedings – see s 61DA(3). 

2. Having heard the submissions of the father’s learned solicitor and the mother’s learned counsel, I do not consider it appropriate to apply the presumption of equal shared parental responsibility in these interim proceedings.

3. Firstly, both parties seek allocation of sole parental responsibility for the child as a final parenting order. 

4. Secondly, the parties mutually make untested allegations of family violence by one against the other. 

5. Thirdly, the mother has already secured against the father, in Ireland, an order referred to as “safety order.”  Such an order is a counterpart of an Apprehended Violence Order that may be issued under New South Wales legislation.  That safety order in favour of the mother against the father was obtained in Ireland, on 28 September 2009, for a period of five years.  I am informed by the solicitor for the father that that order is the subject of some appeal, but clearly enough, pending the outcome of the appeal the order remains efficacious and enforceable, at least in Ireland.  It is common ground between the parties that the application made to the Irish courts for the issue of that safety order was an allegation of family violence.

Findings about Living Arrangements

1. Because there is no allocation of equal shared parental responsibility at this interim stage, the Court is not mandated to consider either the child spending equal time with each parent, or the child spending substantial and significant time with the non-residential parent. 

2. It may be that one of those outcomes could prevail, but only if demanded by the best interests of the child.  There is insufficient uncontested evidence to persuade the Court that the best interests of the child warrant her spending equal time in each household.

3. The child is presently only 21 months of age.  The parties’ lawyers agreed in their submissions to the Court that, ordinarily, the best interests of a child of such a tender age are served by the child living predominantly with a primary attachment figure. 

4. Although the father concedes that the mother is presently the child’s primary attachment figure, he advances several reasons as to why that orthodox outcome should not prevail in the circumstances of this case. Those reasons, in summary, are as follows:

   (a)That the mother has insufficiently secure accommodation arrangements here in Australia.

   (b)      That the mother has a lack of family support in Australia, unlike himself.

   (c)That the mother has an uncertain visa status for the purposes of her remaining in Australia.

   (d)      The mother has a lack of financial resources.

   (e)The mother has a compromised emotional status which may impair her parenting capacity. 

5. I will deal with each of those arguments individually.

Accommodation

1. The mother lives with a person called Ms O. Ms O is a deponent of an affidavit read in the proceedings.  At paragraph 6 of the affidavit filed by Ms O on 15 January 2010, she says:

   We have offered to [the mother] that she, her father and [R] (when she returns). that they can stay in our home at [B] for as long as they need.  We have a large home and they are able to occupy two large guestrooms with their own bathroom.

2. In the affidavit filed by the mother on 11 January 2010, at paragraph 18, the mother says:

   My father and I are currently staying at the home of [Mr O] and [Ms O] at [B].  I know [Ms O] through mothers’ group and I consider [Ms O] and [Mr O] to be good friends.  They have a son, [A], who is also 20 months old.  [Ms O] and [Mr O] live in a large home and my father and I are currently staying in two large guestrooms and shared guest bathroom.  I propose to continue to stay with [Mr and Ms O] until the interim issues concerning [the child] are resolved.

3. The evidence to which I have just referred is not the subject of contest. 

4. I accept that there is a paradox in the father’s argument.  That is, that his own accommodation is susceptible to some degree of insecurity.  The father concedes that he lives with the paternal grandmother in leased premises on the Central Coast.  In the affidavit filed by the father on 13 January 2010, at paragraph 2.2, the father says:

   Upon our arrival in Australia [the child] and I commenced to reside there (being the present leased premises on the Central Coast) and my mother has mostly stayed with us in this property to support a smooth transition both for me and [the child].  My mother continues to pay the rent on my behalf until the determination of my Centrelink application.  Annexed hereto and marked “A” is a copy of the Residential Tenancy Agreement which clearly identifies to whom the property is leased.

1. When one turns to that residential lease annexed to the father’s affidavit, as Annexure A, it discloses that the premises at P, New South Wales, are leased by the landlord to a person named as J Sheldon.  I accept that that is the paternal grandmother.  The Residential Tenancy agreement clearly sets out that:

   No more than one adult person may ordinarily live in the premises at any one time.

2. Given that the father has conceded that he has lived with his mother in that property for at least some of the time, his mother must clearly have been in breach of the lease.

3. I am satisfied that the mother has secure accommodation with Ms O for as long as she and Ms O enjoy a harmonious relationship.  I am satisfied, on the balance of probabilities, that the father can probably continue to remain living at the leased premises at P.  I do not accept the argument of the father that the mother’s accommodation is less secure than his own.

Family support

1. The mother has the support of the maternal grandfather, Mr Weir, who has travelled from Ireland to Australia to be with her.  The maternal grandfather will remain here until the end of February 2010.  That is the evidence of the maternal grandfather set out within his affidavit filed on 11 January 2010 at paragraph 12, where he says:

   I currently have a ticket booked to return to Ireland at the end of February 2010.  I am hopeful to assist [the mother] whilst the immediate matters relating to [the child] are resolved and will be able to assist her to locate appropriate accommodation for herself and [the child], if necessary. 

2. I accept that evidence and I accept that the mother will have the support of her own father for at least another month. 

3. Upon the departure from Australia of the maternal grandfather, I impute that the mother will continue to have the support of her friend, Ms O and Ms O’s husband. 

Mother’s visa status

1. The father has alleged that the mother has not satisfied either him or the Court that she is permitted to remain in Australia pending the resolution of this litigation. 

2. It should be noted that the father has not positively asserted that the mother is unable to remain in Australia – merely that he has been unpersuaded that she is entitled to do so. 

3. The father has previously conceded the mother’s visa status.  In his affidavit filed with the Court on 12 January 2010, the father refers in paragraph 3 to Annexure B.  Annexure B is a copy of an affidavit sworn by him in the High Court Family Law Division in Ireland on 19 May 2009.

4. When one examines that affidavit, which is Annexure B, at paragraph 18 of that document the father says:

   I say and believe that the respondent (being a reference to the mother) is entitled to obtain a visa for Australia as a parent of an Australian citizen. 

5. The mother has, in fact, adduced evidence as to her visa.  That evidence is found within the affidavit filed by her with the Court on 11 January 2010. 

6. At paragraph 2, the mother says:

   I remain an Irish national.  I have a temporary visa entitling me to live in Australia, pending determination of a permanent visa application.

7. At paragraph 20, the mother says:

   I am in Australia on a temporary visa.  Attached and marked “B” is a copy of my passport including the visa.

8. When one examines Annexure B to that affidavit it comprises a photocopy of pages from the mother’s passport. The passport is stamped with an endorsement to the following effect:

   Granted 17/07/08 holder permitted to travel to and remain in Australia until notified that the permanent visa application has been decided or until the permanent visa application is withdrawn.  Multiple travel.

9. The passport is also stamped indicating that the mother arrived in Australia and passed through immigration successfully at Sydney Airport on 29 December 2009. 

10. There is, of course, no evidence as to when the mother’s permanent visa application will be determined, but it is implicit from the evidence that it is still pending and has not been withdrawn by her. 

11. I draw the inference, on the balance of probabilities, that the mother will be free to remain lawfully in Australia for the duration of this litigation.

Financial resources of the mother

1. The delicious irony of the argument mounted by the father about the insufficient financial resources of the mother is that the father himself has contravened orders of both the Irish Court and the Family Court of Australia by depriving the mother of financial support.

2. He concedes that, in breach of those orders, he has made no provision to the mother of accommodation, food, car or money. 

3. The reason behind that is that the father says that he can no longer afford to offer such support to the mother because of his own deteriorated financial circumstances.

4. In the affidavit filed by the father on 4 January 2010, he says at paragraph 7.5:

   With this financial situation your deponent (a reference to himself) is not in the position to offer the same types of financial supports to the mother to assist in the relocation from Ireland as he was able to offer in July.

5. The following facts are evident from the affidavit evidence filed by the father:

   a)He has had no gainful employment since July 2009 (see affidavit filed 4 January 2010 at paragraph 7.1).

   b)His sole asset is a car worth approximately $1000 (see affidavit filed 4 January 2010 at paragraph 7.3).

   c)That he has borrowed approximately $20,000 from his parents, for which he allegedly remains liable to them (see affidavit filed 4 January 2010 at paragraphs 7.1 to 7.2).

   d)The paternal grandmother pays the rent on the leased accommodation inhabited by the father (see affidavit filed 13 January 2010 at paragraph 2.2);  and

   e)That he requires financial assistance from the paternal grandmother to support the child (see affidavit filed 12 January 2010 at paragraph 15).

6. The mother has deposed that she will seek a Centrelink income (see affidavit filed 11 January 2010 at paragraph 19).  I accept that evidence. 

7. I conclude, on the balance of probabilities, that the mother’s financial circumstances are no worse than the father’s.

The mother’s emotional status

1. In the Irish proceedings, the mother deposed that she was highly anxious and distressed and was actually terrified at the thought of a forcible return for her to Australia. 

2. The mother consulted a psychologist, Dr E, and relied upon the contents of Dr E’s report dated 28 May 2009 in those Irish proceedings. 

3. In that report, Dr E expresses the opinion:

   In my opinion, if the Court (a reference to the Irish court) were to order her (a reference to the mother) to return to Australia with [the child], it would have a very damaging impact on her mental health and this, in turn, would impact on her daughter.

4. The mother lost the litigation in Ireland. 

5. Whatever apprehension the mother then held about returning to Australia, she has overcome it.  She has returned to Australia and has submitted that she will remain living here until this litigation is determined.  There is no evidence before the Court that the risk of impairment of her mental health, as opined by Dr E, has actually eventuated. 

6. The father himself has previously deposed in the Irish litigation that he believed the mother to be a competent parent. 

7. In his affidavit, filed on 12 January 2010, at paragraph 3, the father refers to the annexure of his affidavit previously sworn on 19 May 2009, which he relied upon in the Irish proceedings.  At paragraph 12 of that former affidavit, the father says as follows:

   I do not believe and have never said that the respondent is an unfit mother.

Conclusion

1. None of the arguments posited by the father persuade the Court that the best interests of the child require her to spend more of her time with the father than with the mother, who is the undisputed primary attachment figure for the child. 

2. The child should live predominantly with the mother on an interim basis. 

3. The child should spend reasonably frequent time with the father. 

4. On the evidence adduced, there is no reason why the regime of time spent by the child with the father should substantially depart from the regime deemed appropriate by the Irish Court on 21 July 2009, or the Family Court of Australia on 24 December 2009. The two days per week that the child will spend with the father meets the definition of “substantial and significant time” found within s 65DAA(3) of the Act.

5. For those reasons, the following interim orders promote the child’s best interests, or otherwise meet with the consent of the parties.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  22 January 2010