Tatton and Tatton
[2017] FCCA 3409
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TATTON & TATTON | [2017] FCCA 3409 |
| Catchwords: FAMILY LAW – Interim arrangements for care of four children aged 12, 10, 8 & 7 – shared care – nature of interim hearing – relocation – meaningful level of relationship – mutual allegation of family violence – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB; 60CC; 60DA; 65DAA |
| Godfrey & Saunders (2007) FamCA 102 MRR v GR [2010] HCA 4 |
| Applicant: | MS TATTON |
| Respondent: | MR TATTON |
| File Number: | ADC 172 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boswell |
| Solicitors for the Applicant: | Rudall & Rudall |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Camatta Lempens Pty Ltd |
ORDERS
UNTIL FUTHER ORDER, the children [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 live with the mother.
UNTIL FURTHER ORDER, the children spend time with the father as follows:
(a)Each week from 5.00 p.m. on Friday to 5.30 p.m. on Sunday;
(b)Such other times as may be agreed between the parties in writing.
Handovers occur as follows:
(a)At the Service Station at Town A;
(b)At such other location as may be agreed between the parties.
Notwithstanding paragraph 2 hereof, the children do spend time with each of the parties during the April 2017 school holiday period as follows:
(a)From 5.00 p.m. on Friday 14 April 2017 until 5.00 p.m. on Saturday 22 April 2017;
(b)With the mother at all other times NOTING THAT children’s time with the father pursuant to paragraph 2.1 hereof shall recommence on Friday 28 April 2017.
Should the father elect to do so, he may spend time with the child, [X], on 8 March 2017 being the occasion of [X]’s birthday from the conclusion of school to 6.00 p.m. provided that such time take place in Town B.
The father be permitted to speak to the children each Tuesday and Thursday at 7.00 p.m. with the father to contact the children via the mother’s mobile telephone for this purpose.
The parties do forthwith all things necessary to enrol the children and each of them at the Town B School and to record the father as an emergency contact and enrolling parent.
The parties be restrained and an injunction granted restraining each of them from:
(a)Discussing these proceedings with the children or allowing any other person to do so;
(b)Denigrating the other party to or in the presence of the children or allowing any other person to do so;
(c)Discussing current or future parenting arrangements with the children or allowing any other person to do so;
The father and mother do:
(a)Each be at liberty to consult with and obtain advice from the children’s medical or other treating practitioners;
(b)Notify the other parent of any medical appointments arranged for the children or either of them;
(c)Be at liberty to receive any and all information from any treating medical practitioner, health professional, therapist or counsellor upon who the child attends from time to time;
(d)Be at liberty to attend at all of the said children’s school functions and activities including parent/teacher nights, sports days, school concerts, excursions and any other events or activities to which parents are normally invited to participate and attend;
(e)Authorise any school at which the said children attend from time to time provide to the other parent at that parent’s sole expense of all things copies of all school newsletters, school reports, photographs and the like;
(f)Advise each other as soon as possible of any attendance the children have upon any medical practitioners including hospitals, and the parties do notify each other in the event of the children attending upon any medical practitioner for any emergency medical treatment as soon as reasonably practicable for them to do so;
(g)Exchange at each handover of the children a communication book with such book to record details relating to the care, welfare and development of the children.
Further consideration of the matter is adjourned to 19 June 2017 at 9:30am for directions.
IT IS NOTED that publication of this judgment under the pseudonym Tatton & Tatton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 172 of 2017
| MS TATTON |
Applicant
And
| MR TATTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case involving complex and conflicted issues of relocation, family violence and above all, the appropriateness and practicality of a shared care regime in respect of four children, two of whom have special needs.
The case arises at an interim stage, where the evidence available to me is incomplete and contested. As such, it is not possible for the court to make findings of fact in respect of disputed matters. There are many controversies in the case.
The parties to the proceedings are Ms Tatton, to whom I will refer as the mother, and Mr Tatton, to whom I will refer as the father.
They are the parents of [W], who was born on 2004; [X], who was born on 2006; [Y], who was born on 2008; and [Z], who was born 2010.
The mother seeks interim orders which would allow her to live with the children at Town B, which is a small town on the Region 1. The father seeks the return of the children to the Town C area so that the children can live either in a shared care regime or, if the mother remains in Town B, with him in the former family home. The separation between the parties is recent and there is significant mistrust between them.
Background
[W] suffers from serious anxiety and selective mutism, which the mother asserts stems from the trauma of having been exposed to family violence when she witnessed her father attempting to strangle her mother.
[X] suffers from very severe allergies, which predispose him to eczema and anaphylaxis. In particular, he has an allergy to nuts. The mother has deposed that his immune system is comparable to that of a child suffering from leukaemia.
As a consequence, [X] has to be subject to constant vigilance because of the possibility that he will have a severe reaction if unwittingly exposed to some substance to which he is allergic. In the past, this risk has led to him and the other children being home schooled.
By way of background, the mother was born on 1978. Currently, she is primarily engaged in home duties, although she has a business which involves (type of business). The father was born on 1975. He is in receipt of a disability pension, as a consequence of an injury to his back, which he sustained at work some years ago.
The parties have been involved with one another for a significant period of time. As I understand it, they have been involved in a relationship for around 15 years, although this relationship has been marked by several separations.
The parties’ final separation occurred on Boxing Day last year, December 2016, when the mother and the children left the former family home in Suburb 1 near Town C, and the mother initially moved in with her parents.
More recently, the mother has moved to Town B and is currently living with her aunt. The distance between Town B and Suburb 1 is a significant issue in these proceedings. It is approximately 140 kilometres between the two locations.
The parties disagree on how long it is likely to take to drive that distance, but it will be more than an hour and possibly less than two hours, of course, subject to traffic conditions and the weather. It is the mother’s position that during the parties’ relationship, she was the main provider of care.
She asserts that due to his injury, Mr Tatton usually stayed in bed until midday and although he was at home, he did not assist her with the care of the children to any significant degree.
The mother’s case can be summarised by the following extract from her initial affidavit, and this is at paragraph 14 and 15 of that affidavit filed 19 January 2017:
“Despite the father always being at home, I did approximately 95 per cent of all house duties regarding cooking and cleaning, including being responsible for the children and their day-to-day needs. Rarely did the father assist me with bathing them, feeding them, changing them and the like. One the occasions that he was required to care for them by himself, he would be unable to cope and would immediately seek my assistance.”
It is also the mother’s position that during the parties’ relationship, she was subject to significant acts of family violence, which emanated from the father. These incidents, and there are two major ones, resulted in police charges being laid, but those charges were withdrawn.
From the father’s perspective, the charges were withdrawn because there was no factual basis for them being laid in the first place. From the mother’s perspective, there was a basis, but she elected not to proceed with the charges, but rather to return to the relationship in the hope that it would get better.
In all these circumstances, it is the mother’s case that she is the parent best suited to being the children’s primary provider of care and therefore the children ought to live more with her than their father.
In these circumstances, it is her preference to live in Town B, where she feels safe and supported. More recently, she has filed another affidavit in which she has deposed that she has accommodation available to her in Town B and will be able to move out from her aunt’s home.
In that affidavit, at paragraph 41, she deposes as follows:
“I have recently been approved for my own rental property in Town B which will commence at the end of February. I have not been given an exact date when I can move yet, because the house is being painted by the owner.”
In these circumstances, what the mother proposes is that the children spend each weekend in their father’s care from Friday evening to Sunday evening.
It is her submission that this will ensure that the children have a sufficiently meaningful level of relationship with their father, but will also have the security of her care as their historical primary carer. It is common ground between the parties that up to this stage, the children have been home schooled, primarily because [W] and [X] have such significant special needs.
It is also the position that when [W] did attend a mainstream school, she was subject to bullying, which necessarily did not assist her anxiety. However, now that she has moved to Town B, the mother is open to the children attending the Town B area school.
It is Ms Tatton’s position that the children are likely to do better in a small country school than they did previously in a larger suburban school. The father aspires to the children being cared for in what is commonly called a shared care regime.
In his response filed on 16 February 2015, he proposes as follows:
“The parents share 50/50 time with the children.”
From his perspective, that would ensure that the children have the benefit of each of their parents being equally involved in their care and from his perspective that is the best possible outcome for them.
Necessarily, if Ms Tatton is not open to returning to Suburb 1, such an outcome could only come about through the Court compelling her to return either directly or impliedly. In the jargon of lawyers, such an order is known as a “coercive order”.
If Ms Tatton elects not to accept Mr Tatton’s proposal for a fifty-fifty shared care regime, it would be his position that it would be in the best interests of the children that they live with him. However, although it is a subtle distinction, his first position is not that the children should live with him, rather that the children should live in an equal time regime subject to the implicit direction that Ms Tatton live in the area of Town C.
In her affidavit material, Ms Tatton has indicated that for a variety of reasons, she no longer finds living in either Suburb 1 or Town C more generally to be palatable. It is her case that she feels emotionally unsupported in Town C and she sees her future in Town B.
Accordingly, this case raises complex issues of relocation. In a number of cases, the High Court of Australia has indicated that each Australian citizen has a right implied by the Constitution of Australia to freedom of movement, that is, in general terms, each individual in this country has the right to live how and where he or she chooses.
Indeed, one of the primary functions of the Family Law Act is to sever relationships between individuals, who are either married to one another or in a de facto relationship, both in a financial sense and also to a certain extent as parents, in the event those relationships fail. As a consequence, there is no principle of law that separated parents must live in close proximity ad infinitum because they are the parents of children.
At the same time, pursuant to provisions in the Family Law Act, particularly section 60B, children have the right to spend periods of time regularly with both their parents and to be cared for by both of their parents, regardless of the relationship status of those children.
Section 60B(1)(a) directs that in applying part VII of the Act, which is the part dealing with children, the best interests of children are to be met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interest of the child concerned.
Accordingly, much of this case turns on this issue of meaningful parental involvement in respect of the four children, who are the subject of these proceedings. From the father’s perspective, the children will not be able to derive those benefits to the maximum extent possible if they live in Town B.
On the other hand, the mother’s case is that the children will have those benefits, although perhaps not to the extent to which Mr Tatton aspires. However, ultimately it is her position that it is in best interests of the four children concerned that they live more with her and that as she wishes to live in Town B, this will be better for them.
Underpinning this submission is the mother’s contention that, if she is unhappy and compelled to do something which she finds unpalatable - that is return to an area which she has left against her will - that will not assist her to best degree possible to be a good parent for these four children.
In general terms, the High Court has said that in resolving these difficult issues of relocation, the best interests of the children concerned are the paramount or most important consideration. However, at the same time, the Court is not to ignore the aspirations of a parent in respect of how and where he or she chooses to live, particularly if it is determined that that parent is the one better placed to provide more care of the children concerned.
Mr Tatton denies that he has not been significantly involved with the children. In addition, he denies that he has subjected the mother to significant episodes of family violence. Rather, it is his position that the mother is an emotional and volatile person, who has had difficult controlling her extreme temper.
It is Mr Tatton’s position that up to this stage the mother has been not able to provide adequate home schooling for the children and they need to be mainstreamed as soon as possible. In this regard, he proposes that the children attend School at Town C, which is a school attended by a number of their cousins.
It is also the father’s position that each of the children has expressed a strong wish to live with him, in the home environment with which they are familiar. He denies that he has not been actively involved in the care of the children, and it is his position that he and the children engaged in a wide variety of extra-curricular activities during the week.
These include (hobby) class on Friday and they like to come and which him - that is, Mr Tatton - engage in his own (hobby) competition. It is his case that up until this stage, he has read to the children each night and has an evening meal with them.
If the children move to Town B, it is his position that he will not be able to pop in to their classroom activities or see them on sports days or school assemblies. Essentially, it is Mr Tatton’s position that his relationship with the children will be robbed of spontaneity and warmth.
The mother commenced the proceedings on 19 January 2017 against a background of quite significant urgency. She alleges that Mr Tatton had failed to return to the children to her after the parties separated and after there had been an agreed contact proceeding - contact arrangement.
In that application, she also raised property proceedings. Her application came into Court on the earliest available date, which was 2 February 2017. At that state, Mr Tatton had not had an opportunity to formally respond.
The parties were able to engage in some discussions and a holding pattern was put into effect which would see the children living week about with each of their parents from 5 pm on Friday until 5 pm the following Friday. The children were to be exchanged at the service station at Town A, which is about halfway, between their current homes to give effect to these orders.
Other orders were made to assist the parties to resolve the property issues between them; particularly a conciliation conference was appointed. More significantly in the context of these proceedings, it was ordered that the parties attend a family dispute resolution conference pursuant to section 11F of the Family Law Act.
The aim of that intervention was multifaceted. Firstly to give the parties a forum to see if they could negotiate an agreed outcome in respect of the children concerned. Secondly, if that was not possible, to provide some advice to the Court in what and how the matter should proceed. It is a reasonably common thing for the Court to seek advice from a family consultant in this way.
As a consequence of this intervention, I have a memorandum from the family consultant concerned, Ms A. Other issues in dispute between the parties concern the cramped conditions in which the children will be living, if they remain at Town B, and the danger of [X] being exposed to dog hair and dust to his detriment, given the extent of his allergies.
It seems clear that, if Ms Tatton remains living at Town B, which is her preference, and Mr Tatton remains living at Suburb 1, which is his preference, the shared care arrangement cannot continue for much longer.
That was, as I say, a short-term response to the urgency of the situation. It is now necessary for me to discuss the legal principles which apply to this case.
Legal principles applicable
At the outset it is to be noted that although the nature of the hearing is different at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same. In making any particular parenting order, I must be satisfied that it is in the best interests of the child or children concerned.
In so doing, I must consider a long list of matters contained in section 60CC. There are two classes of matter, primary considerations and a longer list of what are termed additional considerations. The two primary considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The legislation places significant emphasis on the co-involvement of parents in the lives and development of their children. As a consequence of this emphasis, the legislation contains a presumption that it is in the best interest of a child for his or her parents to have equal shared parental responsibility for the child.
That presumption is contained in section 60DA and is subject to rebuttal. As such, it is not to be automatically applied in every case. The presumption is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child concerned or exposed him or her to family violence.
The presumption is also rebutted if evidence is provided to the Court that it would not be in the child’s best interests for to be applied, and significantly, at the interim stage, the Court has a discretion not to apply the presumption if it considers it would not be appropriate to so.
If the presumption applies, the Court is directed to consider, firstly, whether the child concerned should spend equal time with each parent, and if that is ruled out on the basis that it is not in the child’s best interests or impracticable, the Court is directed to consider substantial and significant time, which is defined to include weekend and day time and time which is of importance to the parent and child concerned.
Accordingly, whether a child lives with parents either in a shared care regime or on a substantial and significant time basis is subject to the satisfaction of two conditions. It must be in the best interests of the child concerned; and be reasonably practicable to implement such a regime.
Issues relating to reasonable practicality are set out in section 65DAA(5) the include the facility of the parties to communicate with one another; their ability solve parenting problems in a consensual fashion; how close the parents concerned live to one another; the effects on the children concerned and; any other matter which the Court considers relevant.
In the case of MRR & GR,[1] the High Court has directed the Court, in applying section 65DAA(5), to look at the reality of the familial situation concerning the children involved.
[1] MRR v GR [2010] HCA 4
It would appear to be Mr Tatton’s position that the presumption should be applied in this case, and therefore the Court should mandate an equal time arrangement. On the other hand, it is Ms Tatton’s position that is neither in the best interests of the children, nor is it reasonably practicable to do so, as it could come about only by restricting her freedom of movement.
Further, it is the mother’s position that it would be antithetical to the children’s best interests to compel their primary carer to live in a location where she is unhappy. It is also the mother’s position that she has no obvious sources of accommodation available to her in the Town C area. She feels unsupported in Town C and from henceforth sees her life in Town B.
In the context of resolving these proceedings at this interim stage, the report of family consultant Ms A is likely to be central. I appreciate that her memorandum and her methodology has not been subject to any significant scrutiny, if any at all. Ms A did, however, interview each of the parties.
In this context, the father conceded that the mother did the bulk of the household work, but this was because of his back problem. Mr Tatton was critical of the mother’s behaviour in the past, particularly in terms of her yelling and screaming at Mr Tatton.
Ms Tatton confirmed to Ms A that there had been times when she had not behaved as well as she would have liked. She said:
“I’m not proud of these moments.”
In respect of her perception of life in Town C, the mother said to Ms Tatton that she was not receiving any support from her immediate family. She said most of the family sit around on the internet all day, abusing each other. For that reason, she had elected to go to Town B as this, in her perception, was the only place she was likely to get any family support.
She also wanted to pursue her business in Town B. To Ms A, Ms Tatton said she would find it difficult to get housing closer to Town C. Her counsel, Mr McQuade, has indicated that it cannot be guaranteed that the former family home will not have to be sold. However, I do not know whether that is so.
Under the heading Future Directions, Ms A opined that the care of the children had probably not been optimal. She was particularly concerned that given the anxiety reported in respect of both the older children, particularly [W] whose selective mutism has been attributed to exposure to stressful circumstances. Ms A viewed Ms Tatton as credible and coherent in her narrative.
In summary, Ms A thought that the mother was someone who was at the end of her tether as a consequence of difficulties in the relationship, which had come to a head towards the end of last year. In this context, from Ms A’s perspective, it was significant that Mr Tatton did not dispute that Ms Tatton had provided the bulk of the children’s care.
Against this background, Ms A wrote as follows:
“Given the level of conflict and lack of a co-parenting relationship, this would suggest a week-about arrangement is contraindicated. The Court could consider the mother having the children during the week to maintain their routine, with the children – having the children from a Friday night to a Sunday night each weekend. As I have indicated, Ms Tatton is open to this outcome; Mr Tatton is not. It is his position that the Court ought to either compel Ms Tatton to return to the Town C area against her will, but if Ms Tatton is not willing to accede to such an arrangement, that the children should come and live with him.”
In my view, there is reasonably credible evidence that indicates that the children, particularly the older ones, have been exposed to family violence. Family violence is violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful.
That is the definition that is provided by section 4AB(1), of the Act. More significantly, a child – pursuant to the provisions contained in section 4AB(3) – is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence.
In this case, the parties’ older child is anxious and has been diagnosed as suffering from selective mutism, that is, she elects not to speak. Although I am not in a position to definitively determine what is the prime cause of this concerning condition, on my view, it does lead me to having reasonable grounds to think that the child has been exposed to family violence as envisaged by the Act.
Clearly, much of the case turns on the benefits that the children will derive from having a meaningful level of relationship with both their parents. I am satisfied that at the present stage the children do have a meaningful level of relationship with each of their parents. The question is whether that level of relationship can continue notwithstanding the distance between Town B on the other one hand and Suburb 1 on the other.
In the case of Godfrey & Saunders[2], Kay J indicated that what the legislation aspires to promote is a meaningful relationship, not an optimal relationship, that is, as just Brown J had it in Mazorski & Albright[3], the descriptor “meaningful”:
[2] Godfrey & Saunders (2007) FamCA 102
[3] Mazorski & Albright [2007] FamCA 520
“…is a qualitative adjective, not merely a quantitative one.”
I do not think that it would be in the best interests of the children to compel Ms Tatton to uproot herself from Town B and return to Town C to achieve something to which Mr Tatton aspires. I am satisfied that the children’s most significant relationship is likely to be with their mother. I do not think that it is reasonably practicable for there to be a shared care regime in the terms envisaged by the High Court in MRR[4].
[4] MRR v GR [2010] HCA 4
The parties do not communicate well with one another. They have little facility to solve disputes with one another. In addition, I am satisfied that given the relatively modest geographical separation between Town B and Town C that the children can continue to have the benefit of the meaningful relationship with their father by spending each weekend in his care.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 17 May 2018