STEPHEN & LAST

[2015] FamCA 75

FAMILY COURT OF AUSTRALIA

STEPHEN & LAST [2015] FamCA 75

FAMILY LAW – PARENTING – Interim hearing – Where the father seeks orders which would require the mother to return forthwith to Sydney with the children – Where in the alternative, the father seeks a recovery order and suspension of the existing interim orders such that the children would be placed in his care – Where the children are currently residing in Queensland – Where the mother does not have available accommodation in Sydney – Where an interim hearing will resume shortly – Whether the children should be in the sole care of the father prior to the interim hearing – Where the application is dismissed.  

Family Law Act 1975 (Cth)

APPLICANT: Mr Stephen

RESPONDENT: Ms Last

INDEPENDENT CHILDREN’S LAWYER: Mrs Connor

FILE NUMBER: SYC 4420 of 2012

DATE DELIVERED: 16 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 28 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Bedford

SOLICITOR FOR THE RESPONDENT: Mr Manning and Ms Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Connor

Orders

1. That the Application in a Case filed by the father on 22 January 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stephen & Last 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 4420 of 2012

Mr Stephen

Applicant

And

Ms Last

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant father, Mr Stephen, and the respondent mother, Ms Last are the parents of B born on … 2010 (four) and C born on … 2014 (seven months).  C is currently is being breastfed by the mother. 

2. On 1 December 2014 the parties consented to interim orders which provided inter alia as follows:

   1.That the matter be allocated a further interim hearing date in or about March 2015 (“the adjourned interim hearing date”).

   3.That B spend time with the father as follows:

   3.1.1Each Wednesday from 8.30 am to 10.30 am.

   3.1.2Each Friday from 8.30 am to 10.30 am.

   3.1.3Each Sunday from 12 noon to 5.00 pm.

   4.That C spend time with the father as follows:

   4.1.1Each Wednesday from 8.30 am to 10.30 am.

   4.1.2Each Friday from 8.30 am to 10.30 am

   4.1.3Each Sunday from 12 noon to 2.00 pm.

   6.On a “without admissions” basis that the paternal grandmother or the paternal uncle or some other such person as agreed between the parents and the Independent Children’s Lawyer (“ICL”) shall be present whilst the children spend time with the father.

   7.That the mother shall be and is hereby restrained from:

   7.1Relocating the children’s residence to a location outside of the D Council, E Council and/or F Council area pending the adjourned interim hearing date.

3. The orders also made provision for the father to pay a sum of $6,000 to the mother up within 28 days of 1 December 2014.  The adjourned interim hearing date has been fixed on 11 March 2015. 

4. When these orders were made, the mother and the children lived in a property G Street, Suburb E which was owned by her parents.  The mother paid a reduced rental of $470 per week.  By arrangement with her parents, the mother stopped paying rent in November 2014 and had saved approximately $6,000 as at the date of the interim hearing on 28 January 2015.  These funds may consist partly of the money totalling $6,000 which the father paid her pursuant to the orders of 1 December 2014, although her uncontradicted evidence was that she paid most of that sum to her parents as compensation for reduced market rental.

5. On 1 December 2014 it was clear to both parties that the mother’s parents intended to retire and move to H Town.  The position of the mother’s parents was that they would fund their retirement in part by leasing the E property at full market rental.

6. Tenants moved into the Suburb E property on 25 January 2015 and pay rental in the sum of $1,300 per week to the mother’s parents.  Prior to the tenants taking up occupation of the property, the mother’s parents carried out repairs.  The mother and the children travelled to the home of her parents in Queensland in January 2015 to enable the property to be prepared for rental. 

7. The mother and the children have remained in Queensland, despite the injunctive orders made by consent on 1 December 2014.  On 22 January 2015 the father filed an Application in a Case, by which he sought orders which would require the mother to return forthwith to Sydney with the children.  Alternatively, the father sought the issue of a recovery order and suspension of the existing interim orders such that the children would be placed in his care. 

8. The father’s Application in a Case came before me in a duty list on 28 January 2015.  On that day, I released an expert report of 26 January 2015 prepared by Dr I.

9. I reserved my decision on 28 January 2015, due to other commitments in the duty list preventing me from reading and giving proper consideration to the report of Dr I.  My intention was to deliver judgment during the week of 2 February 2015 but illness prevented me from doing so.

Consideration

1. In realistic terms, the mother now has no available accommodation in the northern beaches area.  Her income consists solely of Centrelink benefits and Child Support of $552 per month.

2. There was some suggestion during submissions on 28 January 2015 that the father could vacate his one bedroom apartment and allow the mother and the children to take up occupation of those premises.  There was no evidence that this option is available, in terms of the conditions of the father’s lease, or that he is actually prepared to take this course.

3. The ICL drew attention to concerning passages in the report of Dr I.  Inter alia, Dr I opined as follows:

   [B] presented as a concerning, vulnerable four year old because of her exposure to multiple developmentally disruptive influences through her life, which has resulted in [B] appearing, at this assessment, to have difficulties maintaining an age appropriate capacity to regulate her emotions – she became overwhelmed by her feelings.

   [B’s] attachment to her parents appeared under strain – she demonstrated difficulty moving between her parents (although [J Org] supervisors only documented her distress returning to the mother) and gave misleading information about them (she does not see Dad, Mum did not give her breakfast).  I wondered about the security of her attachment to her mother and would not expect a secure attachment to her father.

4. Dr I observed:

   [Ms Last] presented as committed to parenting her children and has been capable of providing appropriately loving, responsive parenting to the girls.  This has been observed in several settings including at this assessment, although possibly some of [B’s] behaviours provoke [Ms Last] into taking a less sensitive approach at times (why did [B] look so anxious making a mess; who is the model for her to become so strident, telling me “not to lie”).

   It was a concern [Ms Last] did not greet an expectant [B] on her return to [H Town], nor did she leave any baby supplies or snacks for when the children were being seen with their father.  It is probable she becomes less child focused when stressed, including when she becomes worried about the children’s safety with him.

5. Dr I offered this clear opinion:

   If [Ms Last] has to care for the children without emotional and financial support and her family’s protective availability, it is probable [Ms Last] will struggle to provide the high level parenting her infant daughter and a vulnerable, at risk [B] need.

6. The ICL did not adopt a clear position in relation to the father’s Application in a Case, for reasons for which are entirely understandable given the complexity of the situation.  As the ICL said “It is a question of weighing the mother’s vulnerability against the benefit to the children of time with the father”.

7. Given that the adjourned interim hearing will resume in four weeks, I am not prepared to make orders which would force the immediate return of the mother and children to Sydney when they have no available accommodation.  I am not prepared to make orders which could result in police taking possession of children aged four years and seven months, the latter of whom is being breastfed by the mother.  I have real concerns about a decision being made at this point which would see the children placed in the primary care of the father, having regard to the opinions expressed by Dr I. 

8. My decision should in no way be construed as an endorsement of the mother’s unilateral actions and apparent breach of the injunctive orders made by consent on 1 December 2014.  My impression on 28 January 2015, however, was that neither of the parents had given realistic consideration to options which are available to them to safeguard the children’s emotional security, while simultaneously fostering their relationship with the father.  They would be well advised to consider all available options and present evidence thereof, when the interim hearing resumes on 11 March 2015.  I will dismiss the father’s Application in a Case filed on 22 January 2015.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 February 2015.

Associate:

Date:  16 February 2015