Squires and Dorsey - [2008] FMCAfam 479

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SQUIRES & DORSEY

[2008] FMCAfam 479

FAMILY LAW – Children – residence – children live with the father on an interim basis – appointment of an Independent Children’s Lawyer – a reasonable degree of communication between the parties about major long term issues – mother has a history of relocating – father has stable accommodation.

Family Law Act 1975 Cth

Applicant:

MR SQUIRES

Respondent:

MS DORSEY

File Number:

BRC 14288 of 2007

Judgment of:

Burnett FM

Hearing date:

18 February 2008

Date of Last Submission:

18 February 2008

Delivered at:

Brisbane

Delivered on:

18 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms Lyons

Solicitors for the Applicant:

Jones McCarthy Lawyers

The Respondent appeared on her own behalf.

ORDERS

That the children should live with the father until the family report is available.
That the children should spend time with the mother from after school Friday to 5 pm Sunday, with the respondent mother to collect the children from school on Fridays and ensure they attend Friday night training and Saturday morning fixtures and the father to collect the children at the conclusion of spending time with on a Sunday afternoon.
That midweek contact be no less than each Wednesday from after school until commencement of school Thursday morning.
That an independent children's lawyer be appointed.
Until I get the family report the position is that the children will remain at the schools where they are at the moment.
The spending time with arrangement will be in these terms: I will delete the word "collect". Each alternate weekend from after school Friday with the children [X] and [Y] to travel after school direct to the mother's residence and the mother to collect [Z] and likewise O.3.2 will introduce a term along those lines.
Wherever practicable public transport should be used to permit the transfers of the children for the purposes of spending time.
I will make orders in terms of the draft which I will initial and place with the papers.
The first overnight contact will commence this Friday afternoon.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 14288 of 2007

MR SQUIRES

Applicant

And

MS DORSEY

Respondent

REASONS FOR JUDGMENT

In this application the father seeks orders on an interim basis that orders made on 8 October 2002 be set aside; that the children of the relationship [X] born in 1992, [Y] born in 1995 and [Z] born in 1998 live with him; that the children spend time with the mother at all times that might be agreed between them and that the children be represented in these proceedings by an independent children's lawyer to be arranged by the Legal Aid Office, Queensland.
Dealing with the headline dispute first which is with whom the children should reside, these applications are resolved in accordance with the provisions of Pt VII Division 6 of the Family Law Act. The Court, in making an order may, subject to s.61DA, make such parenting orders as it thinks fit.
Section 61DA requires the Court to bring into account the concept of a presumption of equal shared parental responsibility when making parenting orders. The Court must apply the presumption that it is in the best interests of the children for the child's parents to have equal shared parental responsibility for the children. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or there are circumstances of family violence.
Sub-section 3 of that particular section provides that when the Court is making an interim order the presumption applies unless the Court considers it would be not appropriate in the circumstances for the presumption to be applied when making that order.
At this point I should note that the father has filed an extensive affidavit dealing with the history of the marriage or the relationship between the parties and their dealings with the children since the parties first met in about 1990.
The mother's response to the affidavit is that it is a pack of lies and not a line of it is to be believed. I take it from the mother's response that everything that is detailed in the father's application is in issue and no doubt will have to be resolved at trial.
This being an interim application I proceed on the premise that nothing is in agreement in this case save for what can only be described as the objective facts such as the ages of the children and the place where the children presently attend school.
In this case there are allegations of neglect directed by the father to the mother which, if there had been adequate evidence, may have given rise to a disruption of the presumption but in the present circumstances, given it is an interim application and given that those allegations are in dispute, I am not prepared to act upon them.
Accordingly I import the presumption of it being in the best interests of the children that there be equal shared parental responsibility, at least on an interim basis.
Given that in this case it is appropriate for an equal shared parental responsibility order, the Court must then consider whether orders should be made for the spending of equal time or substantial and significant time with each parent. The Court must consider whether equal time ought be made or whether it is appropriate to make a spending substantial and significant time order and of course which is in the best interests of the children.
In part the answer to that question will be resolved by determining the headline issue which is where the children should live. That issue is to be resolved principally by reference to s.60CC considerations which call for the Court to consider the best interests of the children in terms of resolving the statutory obligation to make a parenting order which is in the best interests of the children as a paramount consideration.
Section 60CC brings into play certain primary and additional considerations. Dealing first with the primary considerations, the Court must have regard to the benefit of the children having a meaningful relationship with both the child's parents. In this case each of the parents claim for a living with order and the father has proposed some spending time with orders but broadly there are the two opposing positions by the parties.
Having regard to the issues in dispute between the parties it is difficult in this case to determine which order would achieve the development of a meaningful relationship with both the child's parents and that is a matter that can really only be resolved after trial and issues of credit have been resolved and finding of fact can be made, particularly in relation to the mother's complaint that the father's affidavit is merely a tissue of lies. Accordingly nothing in the application favours an order one way or the other.
Next is the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. Again, in the context of a hotly contested series of facts between two parties it is difficult to resolve this aspect of the application. There would appear, at least on the face of the material, to be compelling issues to suggest that the father's proposal is more likely to protect the children from physical or psychological harm but of course if the mother is correct then that would not be the case. Again, given the disparity of agreement between the parties on basic facts, I cannot say that the proposals favour one party or the other.
Looking then to the additional considerations. First I am required to take into account any views expressed by the children and any factors the Court thinks are relevant to the weight that might be given to the children's views. In the father's affidavit he details something of the history of the children. By and large the children are aged 15, 12 and 10. The parties separated in 2000. They remained with the mother immediately after separation. She relocated to Brisbane from New South Wales in about April 2003 from which time there was some shared care arrangement in place. From that time or shortly after, about 2004, the father largely resided at [W] in the inner north‑western suburbs of Brisbane and has continued to reside in that locality.
In about April 2004 the children went to live with the father and largely the two eldest children have remained with the father and continue to do so to this time. However the youngest of the children, [Z], went to the mother early this year. She lives at [C] (an island between Brisbane and the Gold Coast). The two older children of course are able, I think, having regard to their age, to express a view about where they would like to live. It would seem, having regard to the fact that the children choose or at least at this stage appear to live with the father and there is no suggestion that they are unhappy in that environment. They have voted with their feet and I take into account the expression of that matter.
I also take into account the fact that there are in this case three children and that until recent events the three children resided together. Although the 10 year old is a little younger, she no doubt would have been influenced largely by the views of her elder siblings and to that end I take into account the fact that having resided comfortably with her two siblings in her father's residence she too by inference was content to continue in that environment and I take that as an implicit expression of her view that she would prefer to live with her father. Those matters, in my view, favour the application by the father.
Next is the nature of the relationship of the child with each of the child's parents. Again, having regard to the contest of facts between the parties in relation to these matters, it seems difficult to resolve this matter one way or the other although it seems apparent that in this somewhat disjointed relationship over the last number of years, the parties each have previously had a satisfactory relationship, despite the fact that the children have lived with the father and have spent time with the mother. It does not seem to me that the father's proposal in any way diminishes the prospect of that matter continuing and to that end it can be seen that the proposed orders sought by the father favour him as opposed to those by the mother which are vague to say the least.
Next is the question of the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between each of the child's parents. In this sense the Court is required by reference to ss.4 to take into account the extent to which each of the child's parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child's parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child or children, to spend time with the children or communicate with the children and have facilitated or failed to facilitate the other parent to do likewise.
In considering this matter I also take into account that the parties have separated and I have regard in particular to the events that have happened and the circumstances that have existed since separation occurred.
In this regard I note that particularly between April 2004 and more recent times there appears to have been, save for one exception, generally, I infer, a reasonable degree of communication between the parties about the major long-term issues. The children are enrolled at various schools across Brisbane. One child was enrolled at [R] School. The father has voluntarily, for a while, been involved in transporting the child to and from the school and it would seem at least on that basis that he has been involved in or has consented to the child attending at that school, although no evidence indicates which of the two parents was responsible for enrolling the child at that school.
It does seem that there is reference in the material to the school being a – I won't say a selective school, they do not have selective schools in Queensland – but a school which has performance requirements and perhaps that is the basis for that decision but it is a decision that it seems has involved both parents; at least by inference.
Likewise one of the other children attends the [M] School and again there has been a similar sort of routine involved in collecting the children to and from school which, having regard to the time the children have been at that school, which suggests that there has been some element of discussion between the parties which will have led to their being a cooperative approach to the selection of that school.
There is a complaint in the material that at the start of 2005 and without consultation, the respondent enrolled both [Z] and [Y] at the [M] School and at the [R] School but aside from the fact that that matter is in contention, I take into account the behaviour of the father following that and the fact that no application was sought as to suggest that ultimately he resolved those matters amicably with the mother.
In any event it seems to me that current circumstances, particularly the circumstances involving the youngest child [Z] and her removal to the school at Ipswich, do indicate in more recent times a marked failure on the part of one party in particular to engage the other in what could be regarded as major long-term decisions in relation to the children, although the mother having expressed the view that the affidavit is all false, it is of course difficult to read more into that other than to make the observation that it seems there might be some basis to believe there has been a failure to some extent on her part.
However in the absence of me making findings of fact which I am not prepared to do on an interim basis, I do not feel I am able to draw any particular final conclusion in relation to whether or which of the parties or if either of the parties have indeed failed in their responsibilities under s.60CC4 and accordingly the proposals are seen to be neutral.
In terms of the likely effect of any changes in the child's circumstances and the effect of any separation from either of the parents, in this case I think this particular consideration requires particular regard to be had to the physical circumstances of the children.
The mother did reside at [C], she has a history of having relocated. She is now more recently residing in the Ipswich area. She has had a history of living principally in refuge accommodation, save for the time that she spent at [C]. It would seem that on any basis her current circumstances are not going to be permanent and it would follow in my view that this is a matter which would impact upon the capacity of the parents to provide for the needs of the children including their emotional and intellectual needs.
In contrast to that the position is that the father has stable accommodation which he has had now for some years in a geographic region which he has lived in since 2004 and overall it seems to be preferable that that environment be advanced because it will permit the children a greater sense of belonging, at least in the short term until these matters are resolved by way of final application. To that end it would seem that consideration favours the father's application.
In terms of practical difficulty and expense of the child spending time with and communicating with each of the parents I think, having regard to the father's residence at [W] and the mother's residence at Ipswich, that is a matter that would bear principally only upon questions of spending time with as opposed to there being equal time. It really gives rise to a question of the children spending substantial and significant time and I will deal with that shortly.
Next I have regard to the maturity, sex, lifestyle and background of the children. In this context I have already mentioned that we have three children 15, 12 and 10, two girls and one boy. They have principally resided as a unit and except for recent times it would seem they were living together, and it seems to that end, apart from their ages, it is important to have regard to the need to maintain the siblings as a unit together and so they should be considered as a grouping when determining the overall living with arrangements. Although each of the father and mother contend for the children to live with them over all, I think, having regard to their maturity, sex and lifestyle, it is appropriate that they do all live together so to that end it seems that the two competing proposals are mutually neutral.
In terms of the attitude to the responsibilities of parenthood demonstrated by each of the parents, again, that requires me to refer to s.60CC4 matters which I have earlier addressed. The matter does not overly help me in the context of the overall dispute between the parties.
Over all in this application it seems to me that two things are obvious; first the children need to be kept together. Secondly, particularly having regard to the needs of the older children, the 15 year old and the 12 year old, their particular needs need to be given priority as they are adolescent and mid-adolescent children, they are comfortably ensconced in the father's residence. The proposal he makes for them, I think, represents the best interests proposal, having regard to all the matters I am required to consider under s.60CC, so the children should live with the father.
The question then becomes about spending substantial and significant time. I think having regard to the overall distance involved the arrangements that should be put in place should be something that broadly provide for the children to spend time with the mother from after school on Friday to before school on Monday, once a fortnight with some arrangement for evening or one evening every other week or two evenings every other week, whichever can be agreed.
I will leave it to the parties to try and come to some arrangement in relation to those matters. If you cannot agree on those matters come back and talk to me and we will look at imposing some orders.
Now in terms of the other orders I will make an order for the appointment of an independent children's lawyer. We will have a confirmation hearing in about three months' time.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 27 May 2008