Solder and McCabe

[2009] FamCA 602

FAMILY COURT OF AUSTRALIA

SOLDER & MCCABE [2009] FamCA 602

FAMILY LAW – CHILDREN – Interim – With whom a child lives – Unilateral relocation

APPLICANT: Ms McCabe

RESPONDENT: Mr Solder

INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill

FILE NUMBER: BRC 2053 of 2007

DATE DELIVERED: 30 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Pavusa, Solicitor from Burns Lawyers appearing for the Applicant Mother

SOLICITOR FOR THE RESPONDENT: The Respondent Father appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Ms O'Neill, Solicitor of Legal Aid Queensland appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, … born … April 1998 live with the Mother.

2. The Father to return the child to the Mother’s care by 12 noon on 3 July 2009.

3. If the Father does not return the child to the Mother’s care he is to appear before the Honourable Justice Barry at the Sydney Registry of the Family Court on Monday 6 July 2009 at 9.30 am.  If the Father fails to appear a warrant for his arrest will issue.

4. The Mother and Father shall have equal shared parental responsibility for the child.

5. The Father to spend time with the child at all such times as may be mutually agreed between the Mother and Father but failing agreement as may be ordered by the Court.

IT IS ORDERED THAT:

1. Within fourteen (14) days the Mother and Father to file a Statement of Financial Circumstances setting out with full specificity assets and liabilities and income and expenditure.

2. The Independent Children’s Lawyer to arrange a psychiatric assessment of the Mother and the Father to be carried out in Brisbane.

3. The Mother and Father shall attend all necessary appointments upon such psychiatrist as directed by the Independent Children’s Lawyer.

4. The Order for the Mother to pay the additional hearing fee to be discharged.

5. Pursuant to Section 62G of the Family Law Act 1975 a Family Report is to be prepared by Ms D, Family Consultant, Brisbane Registry of the Family Court. 

6. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party.

7. The parties shall attend and ensure the children attend all necessary appointments for the preparation of the Family Report.

8. Ms D, Family Consultant to explain these Orders in person to the child.

9. Leave given to the Independent Children’s Lawyer to issue such supboenae as are deemed necessary.

10. Leave is given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court other than by the Independent Children’s Lawyer.

11. The first day hearing date listed to 10.00 am on 31 July 2009 be vacated and
    re-listed to 9.30 am on 22 July 2009 at the Brisbane Registry of the Family Court.

12. The Father given leave to appear by phone at the first day hearing on 22 July 2009 if there are no further issues to be determined.

13. The issue of costs reserved.

14. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC2053 of 2007

MS MCCABE

Applicant

And

MR SOLDER

Respondent

REASONS FOR JUDGMENT

1. On 20 March 2008, for reasons she gave at the time, O'Reilly J made orders that the child of the parties, a son, born in April of 1998 live with the father, that the parents have equal shared parental responsibility save for the issue of schooling, organised sporting activities and medical treatments.  I pause to note that the issue of joint parental responsibility would include in what city a child lives and associated activities.

2. The mother was to have the child each alternate weekend from after school Friday until before school Monday, a total of four nights out of 14.  She was also to have, in effect, half school holidays.  The orders extend over some five typed pages including orders about notifying the other parties, use of the communication book, use of the child's surname and things of that nature. 

3. As I understand the material, the mother dropped out of the litigation process when the matter was in O'Reilly J's docket.  As best I can pick up on the brief look I have had today, because of her non-cooperation with the litigation system a costs order was actually made against her.  If that be correct it is somewhat unusual that a costs order would be made in child related proceedings.  I note that however it came about, the mother was owing a fixed sum of money for costs.  The father appeared on four or five occasions in relation to an enforcement warrant.  The conclusion could be drawn he was very keen to ensure that orders of the Court were complied with, certainly in relation to that aspect. The mother eventually paid the sum and the enforcement warrant was withdrawn.

4. The mother's material before me today consists of her application and two affidavits which were filed on 13 October last year, the order of Jarrett FM of 10 November, the order of O'Reilly J of 20 March to which I have made reference, and an affidavit of the father filed on 6 November last year, paragraphs 22 to 26, and there was also an affidavit of service by the father's solicitor referring to particular annexures, being correspondence from the father's solicitors.

5. The father's material consisted of a response document and an affidavit filed by leave on today's date.  The independent children's lawyer read the assessment report of the family consultant, Ms D, and the chronology and handed up draft orders that I have heard submissions on today's date.

6. The orders as sought by the independent children's lawyer are effectively that the father return the child to Brisbane to reside, and in the event he does that, then the child continue to live with the father, and upon the father returning to Brisbane, the father re-enrol the child at M State School and various orders as to the time the mother would spend with the child.  By paragraph 5 she seeks an order that in the event the father fails or refuses to return the child to Brisbane by next Monday, a warrant will issue for the return of the child and, accordingly, recovery orders issue. I will turn to the orders that the independent children's lawyer seeks by way of ancillary orders when I have given my decision in this matter.

7. The orders sought by the mother are effectively that the child live with her,  the respondent father return the child immediately to the care of the mother and he be prohibited from removing or taking possession of the child and that the father pay the costs of and incidental to this application.  The orders sought by the father in his response are quite lengthy and quite detailed.  The child live with him, there be joint equal parental responsibility save for sole parental responsibility issues identified by O'Reilly J in her orders of 20 March last year.  The child spend school holidays with the mother as set out in paragraph 5 of his draft.  A series of other orders about the parties not physically disciplining the child, orders about notifying medical conditions and medical emergencies.  Each parent is restrained from consuming alcohol or drugs when spending time with the child.  Each parent is restrained from smoking or permitting anyone else to smoke in the presence of the child.  In paragraph 19 is the order the father be permitted to relocate with the child to Sydney.

8. The history of this matter is that when the mother's application was filed in October last year the matter came before Jarrett FM on 10 November.  Orders issued at that time, although in the form of amended orders on 11 November, those orders are effectively that:

   "The father be restrained and an injunction hereby issue restraining the father from relocating the child's place of residence from the Brisbane area except by order of the Court."

   Paragraph 3:

   "The father will re-enrol the child at the [M] State School and will authorise the school to provide information to the mother.”

9. The fact is that the father has last month relocated with the child from Brisbane to Sydney.  The father is married to Mrs Solder.  They have three children and she relocated to be with family in Sydney in January this year.  Mrs Solder was employed in a bank up until mid-2007.  She was earning $60,000 a year.  She left her employment.  She is now a student.  The father was employed as a security officer up until mid-2008.  I pause to note that mid-2008 was the middle of what has been known as the global financial crisis.  People were losing their jobs, stock markets were crumbling and the father elected to resign his employment so he could care for his children.  Why it needed two adults at home to care for the children, particularly when the subject child at that stage is 10 years of age, has not to date been properly explained.  The father also said that he was concerned about safety issues in his employment.  There is no evidence the father has, since that time, sought any further employment. 

10. The father's justification for the blatant breach of Jarrett FM's order is essentially a financial one.  He was living on credit.  He could no longer afford to remain in Brisbane.  His wife was down in Sydney with members of her family.  I am informed, and for present purposes, I accept that all grandparents reside in the South-East Queensland area.  I am told that the father is estranged from his mother, the paternal grandmother, who has sided with the applicant mother in these proceedings. 

11. I propose to put in place interim orders.  The matter is in my docket and I will have control over it but I propose to order that the child live with his mother.  I have regard to the assessment of Ms D, the family consultant, I have had regard to the report of the clinical psychologist, Mr E which is annexed to the father's affidavit filed by leave on today's date.  I have had regard to all the other material I have been asked to read.  My reasons for arriving at this decision on an interim basis are as follows:  the parties cohabited between 1996 and 1999.  They separated in 1999.  It has to be borne in mind, as I have noted, the child was born in April 1998.  He was one year of age.  He is now 11 and the parties have been litigating incessantly for 10 years.  The child is deeply troubled. 

12. I am a stranger to this matter but I am moved by the assessment of the social workers and psychologists of the child's plight.  I will refer to page 4 of Ms D’s report prepared in March of this year:

    "It is very evident that [the child] has been emotionally harmed by his parents' conflict and that this will only worsen if the current situation persists.  As it stands [the child] suffers from anxiety and is constantly trying to please the significant adults in his life.  If this continues [the child’s] sense of self, his sense of identity will become enmeshed with others affecting his ability to become independent physically, socially, emotionally.  [The child] requires stability, security and protection from the parental conflict otherwise there will be a risk of him losing completely his child‑like innocence."

13. These observations of Ms D are certainly echoed in the report by the clinical psychologist, Mr E.  It makes for very sad reading.  A parent would need to be unemotional not to be moved by these remarks.  Under the heading "Summary and Recommendations" Mr E says:

    "[the child] is currently a battleground for his parents' conflict over residency and visitation.  He suffers uncertainty and anxiety when he's uncertain when he will see his parents.  [The father] believes that [the mother] is unable to care for [the child] on a permanent basis because of her previous choices of partners, because of the history of domestic violence by them towards [the child] which remains an unresolved trauma for his son.  [The child’s] mother claims that [the father] is a violent man and that [the child] is exposed to violence in the family.  It is clear that both parents in the recent past have not honoured their agreements about handovers at the appointed time which causes [the child] considerable distress.  Any decision or strategy that reduces this dynamic will be beneficial for [the child] who faces the problem, depending on which parent has him, of not knowing when he will see his other parent."

14. He observes that:

    "[The child] is an anxious child clearly distressed by his parents' behaviour."

    The child's whole personality, I am satisfied, has been seriously impacted by the ongoing conflict. 

15. There is evidence that after separation for a period of about five years there was a shared parenting arrangement.  I note that under the father's current proposals the mother is to have the child for the whole of the forthcoming July New South Wales school holidays starting on 5 July for a fortnight.  Other weeks, a week in September and two weeks at Christmas.  I can only conclude the father cannot be too concerned about the care of the child in the mother's home if he is prepared to send the child up for five weeks between now and the end of the year.  One can only conclude what is the difference between five weeks and the balance of the time. 

16. The matters that I have to take into account are enumerated in s 60CC.  That provision is headed "How a Court Determines What's in a Child's Best Interests."  The first section talks about the primary considerations and sub‑s (3) talks about the additional considerations.  The primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents.  The second primary consideration is the need to protect the child from physical or psychological harm.  So long as the parties choose to litigate I cannot protect this child from the harm done by the litigation process.  I can do my utmost to minimise it but clearly the child is enmeshed in the parents' conflict.  But I do have to look at the material to see which parent can promote a meaningful relationship with both of the child's parents and the father says since he has moved to Sydney, the child is free to get on the computer and via some Skype arrangement have interaction with his mother a number of times a week. 

17. The situation was assessed by Ms D at page 2 of her report under the heading "Parents' Understanding of Child's Needs":

    "[The mother], aged 33, is opposed to [the child] relocating to Sydney with his father and proposes that he be returned to her care.  [The mother] recognised that the amount of time she would have with [the child] would not significantly change in the event that he relocated to Sydney, only the structure of time would be altered.  She opined, however, that it is not in [the child’s] best interest to be removed from all that he is familiar with, namely her and the maternal extended family.  Beyond this, [the mother] was not able to rationalise her proposal.  She struggled to explain how [the child’s] relocation may impact upon his ability to have a meaningful relationship with her.

    [The father], aged 35 years, wishes to relocate to Sydney with [the child] for financial reasons as well as to remove [the child] away from [the mother’s] ongoing allegations.  [The father] advocated that relocation would be in [the child’s] best interests as it would reduce the level of anxiety he experiences as he would not be frequently exposed to the alleged adverse effects time with his mother has upon him.  He believes that [the child’s] relationship with his mother would improve as he would have quality time over the holidays with her."

18. In her assessment at page 4 Ms D says:

    "[The mother’s] proposal, on the other hand, requires similar adjustments but will fundamentally change his primary carer and the dynamics of his relationship with his father.  [The child] has predominantly grown up in his father's primary care.  A change to this may only further compound his issues of anxiety."

    I am not sure that I agree with Ms D’s assessment that changing an arrangement where the mother has the child four nights out of 14 to one where she sees the child for about one week every four months on average is amounting to the same thing.

19. The primary consideration, I conclude, is to return the child to the mother's care and she can promote a relationship with both parents subject to the father deciding what arrangements he wants to put in place to see his son.  There is another factor which governs my decision, it is a secondary consideration but a very important one.  There is a widespread perception in the community that orders of this Court do not have to be taken seriously.  The thought occurred to me as I was listening to the submissions, if the Court does not enforce its orders in this case, what is the point of having Court orders?  There is a Court order here and the father simply ups and leaves in blatant defiance of it.  He asks the Court to retrospectively rubber-stamp his unilateral action.  The system does not work that way.  The father is entitled to his day in Court and, from what he has told me today, he will still seek it, but I note in the father's own affidavit where he says, paragraph 26:

    "If [the mother] had been honest I would've arranged mediation and then applied to Court for permission to relocate.  At no time had I or do I now have the intention of relocating with [the child] without new orders in place.  If I want to send [the child] down to Sydney without new orders in place I could've done so at any time and I would've not discussed it with [the mother], however, I chose to try and work something out to avoid another Court proceeding."

    That is an affidavit that was filed in November last year.  What the father has told the Court there is totally inconsistent with his actions in recent times. 

20. I have had regard to the experts' reports.  I have turned to the affidavit that the father relied on for the purposes of today's proceeding.  In paragraph 9 of that affidavit he says that his family went to Sydney:

    "--with the intention that [the child] and I would be following soon after."

    It is somewhat presumptuous on the part of the father to assume that where the mother is opposed to such a move that a Court of law would find in his favour and rubber-stamp his options.  The father's attitude to the issue of schooling and his interpretation of the orders borders on the precious.  The order of Jarrett FM was clear and unequivocal.  The child is to be re-enrolled at M State School.  The father comes in and, in effect, says "I didn't have to re-enrol him.  He never stopped being enrolled there.  The order didn't say I had to keep him there."  My interpretation of the order is that is exactly what it said and that was the spirit of the order and Judges of this Court do not have to spell out to say the child will be re-enrolled and at no time will the father change that enrolment without leave of the Court.

21. I find it astonishing the Father should plead he is impecunious where he has given up work last year and his wife gave up her employment the year before.  They were on reasonable incomes. There is no evidence that he has sought further work.  His wife elects to become a student for a couple of years and he pleads his justification for breaching Court orders is impecuniosity, he is indigent, forced to move to Sydney for financial reasons to reside with his wife's parents in the U area of Western Sydney. 

1. The father says that he can mount a good case for relocation.  I simply note that by acting unilaterally in the manner that he has he has not done his cause much good.  His case will be assessed.  I will endeavour to move it expeditiously through the system.  The Court has to have the best evidence before it and the independent children's lawyer has sought a psychiatric assessment of the parties and I believe the Court would be assisted by that.  The tragic effect of the father's actions is that the child will now have gone to three schools in the space of about two months from M School down to the U Primary School and will now be going to the V State School.  I am certainly not going to leave the child at U for the reasons that I have given.  One is that in my view the father, by his conduct, has not promoted the mother's relationship with the child.  It is a vastly different situation from four nights out of 14 to seeing the child for two weeks in the July holidays and the next time she sees the child is one week in September.

2. For the reasons given orders will issue in the following terms.  I will hear the parties on the terms of the orders after I have pronounced the drafts but, essentially:

   ORDERS DELIVERED

3. I can indicate to the father that if he fails to appear at 9.30 am next Monday I will issue a warrant for his arrest. 

RECORDED  :  NOT TRANSCRIBED

1. I will not carry on with any threats.  I simply say that I do not issue recovery orders for children.  It has been many years since I have done that, having the Federal Police turn up and take a child from one parent and place in the care of the other.  It is a traumatic experience. 

   ORDERS DELIVERED

2. The father is to return the child to the mother's care -

   RECORDED  :  NOT TRANSCRIBED

   - by 4 pm on Friday, 3 July. 

3. If the child is not returned in accordance with the terms of this order, the father is to appear before me in the Family Court at Sydney on Monday, 6 July at 9.30 am. 

   RECORDED  :  NOT TRANSCRIBED

4. I simply order the parent to return the child and there will be consequences for the parent if that does not happen.

5. I will make an order that on an interim basis the child is to remain in the mother's care, the parties to have joint responsibility for the care of the child.  I will not limit that in any way.

6. I will make an order the father is to see the child at all such times as maybe mutually agreed upon with the mother but, failing agreed, as may be further ordered by the Court.

7. I accede to the request from the independent children's lawyer that within say 14 days each party is to file a statement of financial circumstances setting out with full specificity assets and liabilities and income and expenditure.

8. I will make an order that the independent children's lawyer arrange for a psychiatric assessment of the parties to be carried out in Brisbane and the parties are to comply with directions as to attendance upon such psychiatrists in accordance with the directions of the independent children's lawyer. 

9. I will vacate the order for the mother to pay an additional hearing fee.

   RECORDED  :  NOT TRANSCRIBED

10. The order will be that a family report be prepared in accordance with directions given by the independent children's lawyer.

    RECORDED  :  NOT TRANSCRIBED

11. I will make that order, thank you, and have that communicated to Ms D.  That is paragraph 8, is it?  And I make a recommendation to Ms D that it be in person, so on Friday.

    RECORDED  :  NOT TRANSCRIBED

12. I give you leave to file such subpoenas as are deemed necessary and to inspect and take copies of such material received.  The parties are given leave to inspect subpoenaed documents when received.  I will not make an order in terms of paragraph 9(d) telling the family consultant all the matters she has got to take into account.  It is not my usual practise. 

    RECORDED  :  NOT TRANSCRIBED

13. I am going to mention this matter at 10 o'clock on 23 July. 

    RECORDED  :  NOT TRANSCRIBED

14. I will reserve costs.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  30 June 2009