SLATER & HERRADA VALERA

[2015] FamCA 988

FAMILY COURT OF AUSTRALIA

SLATER & HERRADA VALERA [2015] FamCA 988

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Appropriate parenting arrangements pending an expedited final hearing – Where the parties and children came to Australia on a subclass 457 visa issued to the father – Where the mother is no longer eligible to remain in Australia on the father’s visa and is on a bridging visa – Where the children have been living with the father and spending time with the mother after the mother moved into a refuge – Where the mother has now acquired rental accommodation close to the children’s school – Children to live with each parent on an equal week-about basis – Airport Watch List order made.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Slater

RESPONDENT: Ms Herrada Valera

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1373 of 2014

DATE DELIVERED: 11 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 5 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hunter of Hunter Flood Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Maitland

Orders

1. That all existing orders in relation to the children:

   ·B born on … 2004 (male)

   ·C born on … 2006 (male)

   ·D born on … 2007(male); and

   ·E born on … 2009 (female)

   (“the children”) are discharged.

2. That, subject to Order 3, the children live with each parent on an equal time week-about basis, with changeover time to be 10.00 am on Saturday unless otherwise agreed by the parties in writing, and with the first such weekly period to be with the mother commencing at 10.00 am on 14 November 2015.

3. That the children live with the mother as follows during the 2015/2016 Christmas school holidays:

   (a)from the conclusion of school on 16 December 2015 until 9.00 am on 19 December 2015;

   (b)from 9.00 am on 24 December 2015 until 9.00 am on 25 December 2015;

   (c)from 9.00 am on 26 December 2015 until 9.00 am on 1 January 2016;

   (d)from 9.00 am on 10 January 2016 until 9.00 am on 22 January 2016;

   (e)from 9.00 am on 26 January 2016 until 9.00 am on 28 January 2016;

   and that the children live with the father at all other times during these holidays.

4. That the mother continue to attend upon her treating psychiatrist, Dr F, and follow all medical recommendations made by that practitioner.

5. That, without prejudice, the mother is restrained from publishing material concerning the children in any forum and she will forthwith remove any material which she may have posted or disseminated as at the date of these Orders.

6. That until further order each party and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia

   AND IT IS REQUESTED THAT the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.

7. That the parties and the Independent Children’s Lawyer are at liberty to vary the arrangements set out in these Orders by written agreement from time to time.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Slater & Herrada Valera has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1373 of 2014

Mr Slater

Applicant

And

Ms Herrada Valera

Respondent

And

Independent Children’s Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. Mr Slater (“the father”) and Ms Herrada Valera (“the mother”) are the parents of four children:

   ·B born in 2004 (aged 11);

   ·C born in 2006 (aged 9);

   ·D born in 2007 (aged 8); and

   ·E born in 2009 (aged 6) (“the children”).

2. These proceedings concern interim parenting arrangements.

3. On 5 November 2015 I ordered expedition of the final hearing.  Principally, I did so because the mother’s entitlement to remain in Australia is tenuous and, effectively, depends on an ongoing favourable exercise of discretion on the part of immigration officials.  Neither of the parties is an Australian citizen, with the mother and the father holding Country G and United States passports respectively.  The mother, the father and the children are currently in Australia on bridging visas.

Background

1. The father was born in the United States in 1969 and is currently 46 years of age.  The mother was born in Country G in 1974 and is presently aged 41 years.  The parties married in City H, USA in 2001 and separated on 5 December 2012.  They were divorced on 29 August 2015.

2. In September 2008 the parties and children came to Australia pursuant to a

   
   

   sub-class 457 Visa, which was issued to the father on the basis of sponsorship by his employer.  This visa expired on 10 October 2015 and the father and the children have applied for permanent residence in Australia.  The father’s

   
   

   sub-class 457 Visa ceased to apply to the mother on 10 October 2015.

3. On 16 May 2013 the parties negotiated a parenting plan with the assistance of two practitioners at a Family Relationship Centre.  After the separation in December 2012 the children lived with the mother and spent time with the father from 5.30 pm on Friday until the commencement of school on Monday and every Wednesday night.

4. After the separation the father continued to live in the former family home at Suburb I and the mother and children moved to rented accommodation in the same suburb.  The children attended J School at Suburb I.

5. In September 2015 the parties negotiated an agreement whereby the children were to spend time with the father at specified times during the upcoming school holidays.  On 25 September 2015 the father attended the mother’s home to collect the children and found that she had vacated the premises.  The mother gave the father no notice whatsoever of her intention to do so.

6. The mother failed to respond to messages from the father in which he enquired as to the children’s whereabouts.  On 25 September 2015 a male friend of the mother responded to a text message from the father.  This person informed the father as follows:

   [The father]… [the mother] & kids were forced to leave their home due to lease ending and because of visa and money situation she has not been able to secure another home for the short term.  She has been given accommodation in women’s refuge and my understanding is that this address must remain confidential.  Please understand that given the proximity of her visa expiry she is very scared about the welfare of her kids and the advice she was given by the authorities was to keep them in her care for this period of time.  I appreciate this seems unfair to you but she is only acting on the advice given to her.  I am unable to give you any further information at this time.  I would expect better communications with her can be reached if/when she has a clearer direction of her deportation status.  [Mr K].

7. The father filed an Application in a Case, whereby he sought various relief including location and recovery orders.  This application came before me in a Duty List on 7 October 2015, when the mother sought an adjournment to enable her to file material.  The proceedings were adjourned for interim hearing on 13 October 2015.

8. On 7 October 2015, on the application of the father and over the objection of the mother, I ordered that the children spend time with the father from 5.00 pm on Friday 9 October 2015 until 5.00 pm on Sunday 11 October 2015.  On 13 October 2015 I ordered that the children be independently represented and adjourned the interim proceedings for further consideration on 5 November 2015.  After hearing competing submissions I ordered that the children return to J School on 14 October 2015.

9. On 13 October 2015 I also ordered that the children spend time with the father from Monday to Friday and with the mother from Friday afternoon until Monday morning in each week until 5 November 2015.  I expressed the view that it would appear to be in the children’s best interests that the mother care for the children after school to the maximum possible extent.

10. On 14 October 2015 the mother moved to a townhouse at Suburb I.  She has now entered into a six month lease in respect of a three-bedroom house at Suburb L which commences on 11 November 2015.

11. The mother has cared for the children after school on Monday, Tuesday, Wednesday and Thursday and the father has collected them at approximately 5.15 pm on those days.  It is to the credit of the parties that they have been able to negotiate this arrangement.

12. The father contributes $3,300 per month to the financial support of the mother and/or the children.  His solicitor and the mother have agreed to exchange financial information with a view to reaching agreement concerning issues of spouse maintenance and child support.

13. The father now seeks that the existing parenting arrangements continue, pending final hearing, with the exception that the children spend each Sunday with him.  The mother seeks that the children return to live with her and, presumably, that they spend time with the father in accordance with the arrangements which existed prior to the mother’s unilateral move to a refuge.

14. The Independent Children’s Lawyer (“the ICL”) proposed that the children live with the mother from the conclusion of school on Friday until the commencement of school on Monday in the first week and from the conclusion of school on Friday until 9.00 am on Sunday in the second week of a two-week cycle.  The ICL proposed further that the children live with the mother from the conclusion of school until 5.30 pm on Monday, Tuesday and Thursday in each week.

15. The ICL informed the Court that the parties have reached agreement in relation to times which the children will spend with each of them during the 2015/2016 Christmas holidays.  The parties agreed further that the children will spend New Year’s Eve with the mother.

Consideration

1. In these proceedings I am asked to make interim orders in circumstances of some complexity.  I am persuaded that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at this stage of the proceedings.  Accordingly, I will determine directly what orders are in the best interests of the children.

2. There was a suggestion in the father’s case that the mother may suffer from a mental illness.  Reference was made to a psychiatric report apparently tendered during proceedings in Suburb M Local Court but this document was not in evidence before me.  In any event, the ICL informed me that the mother agrees to continue to consult her psychiatrist, Dr F.

3. A suggestion was made by the ICL that B may suffer from ADHD but there was no evidence to that effect.  This prospect was raised by personnel at B’s school when they were contacted by the ICL.  It appears that this possibility and the suggestion that the mother may suffer from a mental illness were significant considerations in the ICL’s formulation of her proposal.

4. My principal reason for making an order on 13 October 2015 that the children live with the father from Monday to Friday was that they needed to be close to J School.  The mother could not persuade me that she could secure the necessary accommodation by the following day.  The mother, however, has now entered into a six month lease in respect of a home close to the school and the father’s house.

5. With respect to the ICL and the father, I see good reason now why the children should enjoy time with both of their parents on weekends, weekdays and in school holidays.  Currently the children spend time with the mother on most days of the week and do not have the benefit of any leisure time with the father.  I consider that a more even distribution of school and leisure time between their parents would best meet their interests.

6. I do not consider that increased time with the mother would place the children at any greater risk that may exist pursuant to the present arrangements.  I am conscious that they spent the majority of their time in the care of the mother prior to her unilateral departure to a refuge in September 2015.  Additionally, they currently spend unsupervised time with the mother in addition to the regime prescribed by the existing orders by agreement of the parties.

7. I am satisfied that the children’s best interests will be met by orders that they spend equal time with each of their parents on a week-about basis, subject to the parties’ agreement in relation to the upcoming Christmas holidays.  It is necessary that I select a changeover time, which will be 10.00 am on Saturday unless the parties agree to some alternative arrangement.

8. The ICL and the father both sought an order to restrain the mother from publishing material concerning the children in any format.  Although there was no evidence before me that she has done so, I accept that it would be contrary to the children’s best interests to be subjected to such public exposure.  I will make such an order on a “without prejudice” basis.

9. The ICL sought an order that the mother continue to consult her treating psychiatrist, Dr F and to follow any prescribed regime.  As indicated, the mother agreed to this proposal and I will make the orders sought by the ICL.

10. The ICL also sought an order that the names of the children be placed on the Airport Watch List.  I will make this order.

11. The ICL proposed a suite of orders directed to the immigration and Australian residence status of each of the parties.  I have requested the Docket Registrar to make directions for the preparation of the matter for final hearing.  It seems to me to be appropriate to leave such matters to the discretion of the Registrar.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

11 November 2015.

Associate:  M. Rankin

Date:  11 November 2015