Sproat and Brimm
[2012] FMCAfam 105
•18 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPROAT & BRIMM | [2012] FMCAfam 105 |
| FAMILY LAW – Children – interim parenting orders – relocation – unilateral decision to relocate – best interests of the children – equal shared parental responsibility – substantial and significant time – three children – where two children have specific educational needs – where mother has relocated with children from Sydney to (omitted). |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 |
| Applicant: | MR SPROAT |
| Respondent: | MS BRIMM |
| File Number: | SYC 7819 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 January 2012 |
| Date of Last Submission: | 18 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Robyn Sexton & Associates |
| Counsel for the Respondent: | Ms Paraska |
| Solicitors for the Respondent: | Longman Hill Solicitors |
ORDERS
UNTIL FURTHER ORDER
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the relationship Y born (omitted) 2003, Z born (omitted) 2004 and X born (omitted) 2008.
The Respondent Mother is restrained from removing the residence of the children Y, Z and X outside the Sydney Metropolitan Area.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the children Y and Z commence to attend the S. School at (omitted) on the first day of Term 1 in 2012.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the child X continues to attend the B. School with effect from 30 January 2012.
The Respondent Mother is restrained from enrolling the children Y and Z at the C. School at (omitted) or any other school than the S. School at (omitted) without the consent of the Applicant Father or Order of the Court.
The Respondent Mother is restrained from enrolling the child X at the (omitted) Centre at (omitted) or any other pre-school than the B. School without the consent of the Applicant Father or Order of the Court.
The Respondent Mother is to do all things necessary to ensure that the children Y, Z and X return to live at an address within the Sydney Metropolitan Area by 28 January 2012.
The Respondent Mother must inform the Applicant Father by 25 January 2012 whether she intends to continue to reside in (omitted) or intends to return to reside in the Sydney Metropolitan Area.
In the event that the Respondent Mother continues to reside in (omitted) or otherwise outside the Sydney Metropolitan Area after 28 January 2012 then the children Y, Z and X are to live with the Father and spend time with the Mother as follows:
(a)Each alternate weekend during the school term from immediately after school on the Friday until the commencement of school on the Monday or, if the Monday is a Public Holiday, then until the commencement of school on the Tuesday, the first of such weekends being the weekend commencing Friday 3 February 2012;
(b)On the weekend that includes Mother’s Day from immediately after school on the Friday before Mother’s Day until the commencement of school on the Monday morning after Mother’s Day;
(c)For a period of not less than two (2) hours on each of the children’s birthdays if that day falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Mother would not otherwise be spending time with the children in accordance with these Orders;
(d)For a period of not less than two (2) hours on the Mother’s birthday if that day falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Mother would not otherwise be spending time with the children in accordance with these Orders;
(e)For the first half of each school holiday period commencing immediately after school on the last day of the school term and concluding at 6.00 pm on the middle Saturday of the school holidays; and
(f)At such other times as the parties shall agree.
Notwithstanding the provisions of Order 9 above, the children Y, Z and X will spend time with the Father:
(a)On the weekend that includes Father’s Day; and
(b)For a period of not less than two (2) hours on the Father’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the children would not otherwise be in the care of the Father according to these Orders.
In the event that the Respondent returns to live in the Sydney Metropolitan Area after 28 January 2012 then the children Y, Z and X are to live with the Mother and spend time with the Father as follows:
(a)Each alternate weekend during the school term from immediately after school on the Friday until the commencement of school on the Monday or, if the Monday is a Public Holiday, then until the commencement of school on the Tuesday, the first of such weekends being the weekend commencing Friday 3 February 2012;
(b)On the weekend that includes Father’s Day from immediately after school on the Friday before Father’s Day until the commencement of school on the Monday morning after Father’s Day;
(c)For a period of not less than two (2) hours on each of the children’s birthdays if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Father would not otherwise be spending time with the children in accordance with these Orders;
(d)For a period of not less than two (2) hours on the Father’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Father would not otherwise be spending time with the children in accordance with these Orders;
(e)For the first half of each school holiday period commencing immediately after school on the last day of the school term and concluding at 6:00pm on the middle Saturday of the school holidays; and
(f)At such other times as the parties shall agree.
Notwithstanding the provisions of Order 11 above, the children Y, Z and X will spend time with the Mother:
(a)On the weekend that includes Mother’s Day; and
(b)For a period of not less than two (2) hours on the Mother’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the children would not otherwise be in the care of the Mother according to these Orders.
Each party is restrained from using critical or derogatory language to the other or otherwise denigrating the other in the presence or hearing of the children or permitting any third person to do so.
The parties are restrained from using any physical discipline on any of the children.
The interests of the children Y, Z and X are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid NSW is requested to arrange such representation.
The parties are to forward to Legal Aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and other relevant documents within fourteen (14) days.
The Independent Children’s Lawyer is given leave to issue up to eight (8) subpoenas.
The parties are to engage Dr B to prepare a Single Expert Report in relation to the children Y, Z and X in relation to the following matters:
(a)Whether there are any psychological or psychiatric factors relevant to the health and caregiving capacity of each of the parents;
(b)The capacity of each parent to provide for the needs of each of the children, including emotional and developmental needs when the children are in the care of that parent;
(c)The Single Expert’s opinion as to the capacity of each parent to promote each child’s future relationship with the other parent;
(d)The relationship and attachment of each child with:
(e)Each parent;
(i) Each other; and
(ii) Any other persons significant to their care.
(f)A recommended parenting schedule as being in the best interests of the children having regard to their ages and stages of development and any other relevant matter;
(g)Any views expressed by the children or any of them in relation to their care and the time spent with each parent and any factors that are relevant to an evaluation of the level of maturity of each child; and
(h)Any other matter or circumstance considered by the Single Expert to be relevant to the best interests of the children.
The parties are to pay the costs of the Single Expert in equal shares forthwith upon completion of the Report and before its release to the Court as required by the Single Expert.
The parties are to forward to the Single Expert copies of all Applications, Responses and affidavits filed on their own behalf and any other document considered relevant.
The Application is adjourned to Monday 12 March 2012 at 10:00am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
IT IS NOTED that publication of this judgment under the pseudonym Sproat & Brimm is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7819 of 2011
| MR SPROAT |
Applicant
And
| MS BRIMM |
Respondent
REASONS FOR JUDGMENT
This is an application by the Father of three children, Y, Z and X, for interim orders that the Mother be restrained from relocating the children’s residence out of Sydney to (omitted). He seeks that:
a)the children should return to live in Sydney;
b)Y and Z should return to their school and X should go back to her preschool, and
c)in any event, the children should live with their father until the final hearing.
The Father also seeks an order that a single expert report be prepared by Dr B, a psychologist. He initially sought the appointment of an Independent Children’s Lawyer but was prepared to wait until the report becomes available.
The Mother has filed a response in which she seeks orders that:
a)the parties should have equal shared parental responsibility for the children;
b)the children should live with her and spend time with the father, and;
c)she should be permitted to relocate the children’s residence to (omitted).
The Mother, through her counsel, did not oppose the order for a single expert’s report and also sought the appointment of an Independent Children’s Lawyer.
The Father’s counsel told the Court that on an interim basis his client could not argue against an order that the parties should have equal shared parental responsibility for the children.
I indicated to the parties that in view of the Father’s claims that the Mother was unstable and may have mental health issues, and in view of the Mother’s claims in her affidavit that the two boys had complained that their father had beaten them on their bare buttocks on two occasions, I considered it appropriate that the children’s interests be independently represented by a lawyer under the provisions of section 68L of the Family Law Act. The Father’s counsel told the Court he would not argue against that order.
The Father claims that the Mother’s actions have been erratic and she has displayed unstable behaviour. He believes she has mental health issues. He claims that she is untruthful and he does not know whether to believe her or not. The Mother claims the Father has used physical force on the children by beating the boys on their bare buttocks. She also claims that he has used offensive, threatening and abusive language towards her.
Background
The parties have lived in a de facto relationship but have been separated for some time. They commenced the relationship in 2001. They began living together in 2002 and separated in June 2009 according to the Father’s affidavit sworn on 21st December 2011.
The Father has repartnered. He now lives in a flat at (omitted) with a lady named Ms A and has done so since early 2010. The Mother claims that although she knew of Ms A’s existence and has met her on various occasions, she did not know until today that Ms A and the Father were living together. The Father does not agree.
The Mother has already relocated to (omitted) with the children. She deposes that she has obtained a job as a manager of a (omitted). She has enrolled the two boys in the C. School school at (omitted) and has enrolled X at the (omitted) Centre, a preschool in (omitted). The Mother has obtained rental accommodation in (omitted) and has disclosed her address to the Court.
The parties have filed a number of affidavits. It has been put to the Court by Ms Paraska of counsel, who appears for the Mother, that one of the affidavits filed by the Father as recently today, that of a Ms. H, is of no relevance to the matters to be decided and should not be given any consideration at this stage. I am inclined to agree.
Similarly, I am of the view that another affidavit filed by the Father with his original application, that of a Ms. P, does not provide a great deal of assistance to the Court. The affidavits that are relevant in the Father’s case are his originating affidavit of 21st December 2011, his affidavit of 17th January 2012 and the affidavit of Ms A also of 17th January 2012. The Mother relies on her affidavit, which was filed yesterday along with her response.
It is the case that the matter originally came before the Court on 9th January. At that stage, the Mother was represented on two occasions during the day by a duty solicitor from Legal Aid New South Wales, a Ms El Ayoubi on one occasion, and also by Ms Finn of that organisation. However, the Mother had been informed that Legal Aid would not be able to act for her on an ongoing basis, and she has since obtained representation from a well-known firm of solicitors in (omitted), (omitted) Solicitors.
The parties did attend a child dispute conference with a family consultant in which a number of issues were discussed. The family consultant made a number of recommendations, including the appointment of an Independent Children’s Lawyer.
The parties entered into certain consent orders on 9th January, namely, that the children would spend time with the Father from 10:00am the following day, that the Mother be at liberty to have Skype and telephone communication with the children at all reasonable times, and the parties would meet at (omitted) Railway Station, and if the Father wished to travel with the children out of Sydney, he would provide the Mother with details of travel.
There are other procedural orders made relating to the children seeing a family consultant and the filing of a response and an affidavit in support, which of course has been done.
I have had the opportunity of hearing the helpful submissions from counsel for each party, and I have had the opportunity of reading the parties’ affidavits. I am of the view that the law in respect of these matters is now relatively well settled. In Mallahan & Mallahan[1], a recent decision of Murphy J in the Family Court at Brisbane, his Honour said of relocation cases:
[1] [2010] FamCA 631
In my view, it remains the case that, as I said in the earlier decisions referred to:
(a) a relocation case is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case. The fact-finding or value-finding exercise required by section 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
The decision of Boland J in Morgan & Miles[2] is to my mind particularly helpful when a Court is dealing with a unilateral relocation on an interim basis. That decision of her Honour’s was a decision on appeal from the Federal Magistrates Court. Her Honour stated at paragraphs 80 and 81:
It follows from my exposition of the legislation that earlier core principles that the child’s best interests remain the paramount consideration; that a parent wishing to move does not need to demonstrate compelling reasons; that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and the child’s best interests must be weighed and balanced with the right of the proposed parent’s freedom of movement, remain valid.
What the legislation now requires is considering of the competing proposals against the criteria now in section 60CC informed by section 60B; if a parenting order is made or proposed to be made and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility. But there is no specific legislative requirement which proscribes a requirement that matters under section 60CC or section 65DAA be determined in any priority.
It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining issues in dispute against the relevant section 60CC factors, and then applying those findings to a consideration of the criteria of section 65DAA to craft appropriate orders.[3]
[2] [2007] FamCA 1230; (2007) FLC 93-343
[3] (2007) FLC 93-343 at [80]-[81]
It is the case that when making a parenting order the Court must regard the best interests of the child concerned as the paramount consideration. See section 60CA of the Family Law Act. The Court determines what is in a child’s best interests by considering the matters contained in paragraphs 60CC(2) and 60CC(3) of the Act. When making a parenting order, the Court is required by section 61DA to apply a presumption that it is in the best interests of the child or children for the child or children’s parents to have equal shared parental responsibility for the child or children.
Where the Court makes an order that a child’s parents are to have equal shared parental responsibility for the child, section 65DAA of the Act requires the Court to consider whether the child spending equal time with each parent is both in the best interests of the child and reasonably practicable. If the Court does not make such an order, it must consider whether the child spending substantial and significant time with each parent is both in the best interests of the child and reasonably practicable. See subsection 65DAA(2) of the Act.
I have considered all of the above matters. Certainly, it appears that there has been a unilateral relocation of the children from the area in Sydney, the (omitted) area, where the Mother has been living, which has resulted in the children being enrolled in schools and preschools in (omitted). The Mother wishes to relocate to (omitted) in order to have a better life. She is described as having said that she was “over (omitted)”, and she has given some evidence in her affidavit that she does not consider that continued living in (omitted) is the place for her, certainly financially. She has obtained employment in (omitted) and has made arrangements unilaterally to enrol the children in schools. She is of the view that those schools and the preschool would be suitable for the children.
There are certain issues relating to the boys. The Mother is of the view that the C. School in (omitted) would be more suitable with smaller class sizes than the S. School in (omitted), where the boys have been attending. The Father does not agree, and there is conflicting evidence.
Clearly the Court must consider the need for the children in their best interests to have a meaningful relationship with both parents. The Mother’s move to (omitted) will affect the time that the children would spend with the Father. The change in schools will have a significant effect on the children, and a question mark must be raised as to whether these arrangements are in the children’s best interests.
The Mother has curtailed the Father’s time with the children because she says that the Father’s behaviour towards the children has exposed them towards physical harm by his beating them on two occasions, which the Father denies. She has also complained of the Father’s aggressive and offensive language towards her, which again would, where that is conducted in the presence of the children, would expose them to perhaps psychological harm. It does appear that the children have a good relationship with each parent. The Father and Ms A are of the view that the children have a good relationship with her. The Mother does not agree.
What remains is that there are a number of areas where factual issues are in dispute. It is certainly the case, as the Full Court of the Family Court referred to in Goode & Goode[4], that in interim proceedings where there are disputed area of facts, it is not possible for the Court to make definitive findings of fact in such circumstances because the opportunity for oral evidence and that evidence to be tested on cross-examination does not apply. Here there are certainly disputed areas of fact which cannot be resolved on an interim hearing.
[4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
However, the best interests of the children are the paramount consideration. I am not satisfied that the evidence shows that the best interests of the children will be met by relocation of their residence to (omitted), several hundred kilometres from Sydney, until the evidence can be properly evaluated at a final hearing. Consequently, the Mother will need to return the children to Sydney before the children are due to commence school and preschool. It is up to her to decide whether she wishes to continue to live in (omitted) in the meantime or whether she chooses to return to live in Sydney until the matter can be dealt with by way of a final hearing.
It would appear to me that the appointment of an Independent Children's Lawyer will be of assistance, and certainly the proposal to obtain a single expert’s report from Dr B will be extremely useful, and I understand that Dr B would be able to interview the parties at some time in late February.
The Court has looked at the proposals of the parties. The Mother’s proposal is that she lives in (omitted), the children go to school in (omitted), the children continue to live with her and they spend time with the Father. The Father’s proposal, of course, is the children’s residence should be relocated to Sydney and that in any event, whether the Mother chooses to relocate herself to Sydney or whether she chooses to remain living in (omitted), in any event, the children should live with him.
I have given some consideration to those proposals on the basis of the best interests of the children, and as I said, I am of the view that the children’s residence should be relocated back to Sydney and that the children should go back to their former schools until the matter can be dealt with on a final basis. As I said to the parties in Court, the Court cannot tell the Mother where she is to live. The Court can only make decisions about the children. If the Mother continues to live in (omitted), where she has obtained accommodation and a job, well, then it would seem to me that the children would have to, for the time being, live with their father, because he will be living in Sydney.
However, if the Mother relocates back to Sydney for the time being, I am not satisfied that the evidence allows the Court to find that the children should not live with her in those circumstances.
I have prepared orders which will deal with either eventuality.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 February 2012
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