Tindall and Chamberlain

[2016] FCCA 2472

FEDERAL CIRCUIT COURT OF AUSTRALIA

TINDALL & CHAMBERLAIN [2016] FCCA 2472

Catchwords:
FAMILY Law – Parenting – shared care – mother’s proposed relocation refused.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Applicant: MS TINDALL

Respondent: MR CHAMBERLAIN

File Number: TVC 431 of 2015

Judgment of: Judge Young

Hearing date: 5 September 2016

Date of Last Submission: 5 September 2016

Delivered at: Townsville

Delivered on: 9 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Mayes

Solicitors for the Applicant: Lee Turnbull & Co

The Respondent appearing in person

ORDERS

1. That the Father and Mother have equal shared parental responsibility for major long term issues of the children, X born (omitted) 2007 and MR CHAMBERLAIN born (omitted) 2008, including but not limited to:

   (a)The child’s education (both current and future);

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health;

   (d)The names of the child;

   (e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

2. The parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibility as follows:-

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree;

   (c)They shall make a genuine effort to come to a joint decision.

3. Notwithstanding Order 1 herein:-

   (a)The Mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her;

   (b)The Father shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with him.

4. That the children live with each parent in accordance with the Federal Circuit Court Order of 16 June 2015 namely:

   (a)That the children live with each parent on a shared care, week-on/week-off basis with changeovers to occur on school days at the children’s school with the parent who has had the children for the week to deliver the children to school on Friday morning and for the other parent to collect the children at the conclusion of the school day on that Friday;

   (b)On non-school days changeovers will occur at McDonalds Family Restaurant, (omitted). 

   (c)The week-to-week arrangements are to continue for the whole of each year including all holiday periods except for the Christmas school holidays.

Christmas School Holiday Period

1. The Father spend time with the children in odd numbered years for the first half of the Christmas school holiday period and in even numbered years for the second half;

2. The Mother spend time with the children in even numbered years for the first half of the Christmas school holiday period and in odd numbered years for the second half;

3. That if the parties are in the same locality on Christmas Day, the parent who is spending time with the children for the second half of the school holidays spend time with the children from 2:00pm Christmas Day until 2:00pm Boxing Day.

Special Days

1. That if the children are with the Father, then the Mother spend time with the children on the following occasions:-

   (a)On Mother’s Day from 9:00am until 5:00pm;

   (b)On the Mother’s birthday if on a school day from 3:00pm until 7:00pm. If on a non-school day from 9:00am until 4:00pm.

   (c)On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.

2. That if the children are with the Mother, then the Father spend time with the children on the following occasions:-

   (a)On Father’s Day from 9:00am until 5:00pm;

   (b)On the Father’s birthday if on a school day from 3:00pm until 7:00pm. If on a non-school day from 9:00am until 4:00pm.

   (c)On the children’s birthdays if on a school day for at least two (2) hours. If on a non-school day for at least four (4) hours.

Telephone Communication

1. That the parent who does not have care of the children have telephone communication with the children at all reasonable times and in particular, each Tuesday and Thursday between 7:00pm and 7:30pm, with the parent who does not have the children to initiate the call and the other parent is to ensure that the children are available to take such call in a quiet and private environment, such calls not to be on loudspeaker and the other parent not to interrupt the children’s conversation with the parent calling.

Other Orders

1. That both parents are to attend at Centacare in (omitted) for assessment and attendance at any post separation parenting course without delay as recommended by Centacare and adopt any recommendations that are given. 

2. That the Father make an appointment with the (omitted) Community Health Service and undertake any course of therapy/counselling about his illicit drug use as may be recommended by the Community Health Service. 

3. That the Mother and Father shall keep each other informed of their contact telephone number and addresses and will advise each other within forty-eight (48) hours when there is a change to such details.

4. That if either parent intends to take the children out of the town that the parent is living for a period of in excess of forty-eight (48) hours, then they are to provide in writing to the other parent a contact address, contact telephone number and details of where the children will be travelling to and if the children are flying, then flight itineraries for the children’s flights.

5. Each parent has a right to attend at the children’s school for all events that all parents are normally entitled to attend. Each parent shall have the right to obtain copies of the children’s academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own costs), fee and enrolment information and all other information pertaining to the children’s school and school related activities.

6. This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other special persons dealing with the children to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, orders forms sought by them and effect their request at their individual expense (if any).

7. Each parent shall ensure that alcohol is not consumed by any person too excess in the children’s presence.

8. Each parent shall ensure that the children do not remain in any enclosed premises or motor vehicles where there are persons smoking.

9. The parties shall not themselves consume nor be under the influence of illicit drugs whilst the children are in their respective care.  Each party shall ensure that the children are not present whilst any person, to their knowledge, is consuming or is under the influence of illicit drugs.

10. That each parent be restrained and an injunction issue restraining each parent from denigrating the other parent or their partners to/or in the presence or hearing of the children and both parents use their best endeavours to ensure that no other person denigrates the Mother or the Father or their respective partners to or in the presence of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 431 of 2015

MS TINDALL

Applicant

And

MR CHAMBERLAIN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is a parenting matter about two children:  X, who is nine and Y, who is eight.  The parties separated in 2014 in (omitted), where they both continue to reside.  In March and April 2015, there was an incident where the father took Y and refused to return him to the mother.  The parties reached an informal agreement after that that the children would live in a week-about arrangement.

2. 2014 and 2015 appear to have been a turbulent period for the parties.  Both parties were using methamphetamine.  The father was convicted of a possession charge. He was also convicted of assaulting the mother’s brother.  There was a domestic violence order made.  The parties do not communicate with each other.

3. Both parties say they have stopped using methamphetamine. That may be true but neither party sought orders for drug testing in this case.  That may indicate that they did not think it was relevant.  Nevertheless, the mother asserts that she still has concerns but she has been legally represented throughout and has not sought drug testing.  There is no evidence that either party continue to use methamphetamines.

4. On 16 June 2015 interim orders were made that the children live on a week-about basis with the mother and the father.  The matter came on before me for trial this week.  The father did not comply with trial directions to file material.  Nevertheless, he appeared and I allowed him to cross-examine.

5. The mother’s proposal was that she be permitted to relocate with the children from (omitted) to (omitted).  If so, she proposed that the children would see the father on alternate weekends.  On the morning of the trial, she orally amended her application to say that if she was not permitted to relocate, the children should live with her and spend alternate weekends with the father, that is, a reduction in the time the children would spend with the father.

6. The mother’s proposal for relocation is put on a number of different bases:

   a)She says that she has a strong relationship with her mother and step-father. They currently reside in (omitted) but they intend to move to (omitted) or (omitted) soon.

   b)She has a partner, a Mr T, living in (omitted).

   c)Her father and brother live in (omitted).

   d)She believes there are better employment and study opportunities for her in (omitted).

   e)She is concerned about the father’s drug use, behaviour generally and lack of communication.

7. It is clear that the maternal grandmother and the step-father have been strongly supportive of the mother and they both gave evidence in this case.  They have provided a house for her and the children to live in (omitted).  They own a house there and this is currently being renovated and while that renovation is underway, the maternal grandmother and her husband, Mr B, are sharing rental accommodation. 

8. In cross-examination, Ms T, the maternal grandmother, revealed that there had been a serious dispute between her and her daughter recently. Apparently they came to blows, that is, that it was a physical altercation.  Ms T said in cross-examination that the reason for this fight was Ms T’s opposition to the mother’s move to (omitted).  She, Ms T, confirmed that there were no imminent plans for her and Mr B to move to (omitted) and while there was a wish to move to (omitted) at some time in the future once she and Mr B have retired, she did not see that this would be at any time within the next two or three years.

9. It follows from that evidence that the mother’s evidence about the imminent move of her mother and step-father to (omitted) or (omitted) was misleading. 

10. It also appeared in the cross-examination of the mother that her relationship with Mr T had broken up last week.  The reason for that break-up was unclear.  The mother herself says she did not know the reason.  Mr T was due to give evidence but his affidavit was not relied on.  In cross-examination the mother said that Mr T had children but did not spend any time with them.  She was unsure of the reason for that.  Mr T had not confided the reasons to her.

11. The family consultant was not informed of the relationship between the mother and Mr T in the mother’s interview with the family consultant in December 2015.  This is of concern as it was, at that time, a significant relationship and under the mother’s original proposal, would appear to have meant that the children would be spending time with Mr T although her trial affidavit was unclear about whether she intended to live with Mr T.

12. The family consultant in evidence expressed concern about the mother’s failure to reveal that relationship for the reason that it was relevant to the family consultant’s assessment to be able to interview any adult that would be likely to have any significant relationship or contact with the children. 

13. In relation to other matters raised by the mother, the father’s drug use and lack of communication, there is, as I said, no evidence that either party is using drugs – and by “drugs” I am referring to methamphetamine in particular. 

14. The family consultant recorded that the father had candidly told her that he has a desire to use methamphetamine but is refusing for the sake of the children, or abstaining, perhaps is the correct word, for the sake of the children. As noted there has been no request for drug testing.  Nevertheless, I think there are some worrying signs, particularly the father’s candid admission that he has not overcome his desire to use methamphetamine. It is a highly addictive drug and stopping its use can be a long-term project.

15. I think, for that reason, that it is appropriate that the father seek some professional assistance to help him abstain from illicit drugs and I propose to make an order that the father make an appointment with the (omitted) Community Health Service and undertake any course of therapy or counselling as may be recommended by the community health service.  I think that is a necessary protective mechanism in this case.

16. The opposition of the mother’s mother, that is, the maternal grandmother and the step-father to relocation is significant, especially as their alleged move to (omitted) or (omitted) was said to be a major reason for the mother’s proposal for relocation.  The collapse of the mother’s relationship with Mr T is also of real concern, especially as the mother says she does not know the reason for it.

17. I might say that Ms T did not give particularly detailed evidence about the reason for her opposition to the mother’s relocation to (omitted).  She said in evidence that she did not think the mother was in the correct emotional space to undertake such a move with the children but she did not elaborate.

18. Nevertheless, as I have observed, the maternal grandmother and Mr B have been consistent supporters of the mother and their opposition to the mother’s move is, in my view, a matter of real significance.

19. The family report observed that both children appear to be happy and well-adjusted.  They appeared well-settled at their current school.  Both children said that, in the current week-about arrangement, they missed one parent but looked forward to seeing the other at changeover.  Both children said they were sad when they saw their parents argue.  The family report concluded that both children were strongly attached to each parent.  They had each adjusted well to the week-about arrangement and they both enjoyed spending time with the maternal and paternal family. 

20. I should have observed that when the children now spend time with the father, that is, as I understand it, in a house with the paternal grandparents.

21. Under the current arrangements the children spend equal amounts of time with their father and their mother, their grandmother and their step-grandfather, if I can call Mr B that and the paternal grandparents.

22. It may be that those close relationships with the extended family are a reason why these children appear to be doing well in a shared care arrangement, notwithstanding the continued high level of hostility between their parents.

23. The family consultant expressed concern about the father’s negative views of the mother.  She considered that they were not justified and I agree with the family consultant’s views.  The father’s negativity about the mother is not justified and, in the long term, it is damaging to the children and it is potentially damaging to the relationship between the children and their mother and possibly their father. The father would do well to consider the likely effect on the children of his hostility to the mother.

24. The family consultant recommends that both parents attend a post-separation parenting course to be arranged through Centacare at (omitted) and I will adopt that recommendation and make orders accordingly.

25. The family consultant also observed that the father had been somewhat deceptive about his cohabitation with Ms F.  I accept her remarks about that.  It is unclear, precisely, what the relationship is between the father and Ms F but it appears clear enough that she spends significant time in his household if not actually living with him.  It was quite inappropriate, in my view, for the father not to be frank with the family consultant and the Court about that relationship.

26. The family consultant observed that a week-about arrangement requires a high level of parental co-operation and respect and this was absent in this case. The mother’s submission was that this lack of co-operation and respect was a basis for dismantling the present shared care arrangement.  I agree that there is a lack of co-operation and respect between these parties and, as I have mentioned, I am particularly concerned about the father’s negativity towards the mother and I do accept that this poses a risk to the shared care arrangement. 

27. Nevertheless, despite this, the children appear to be coping well with it. I find they are coping well with the present arrangement but that is not to say that, if there were a decreased level of conflict, they would not cope better.  I am sure they would.  I propose to order both parents to attend at Centacare (omitted), with a view to an assessment of any parenting programs that might assist them both to minimise this hostility and I propose to make an order that they adopt any recommendations that are given.

28. I cannot see that relocation is in the best interests of the children in this case.  The basis of the proposed relocation would appear to be undermined by the opposition of the maternal grandmother and step-father in particular. 

29. The move would likely sever or, at least, significantly alter the children’s relationship with the father, with the maternal grandmother and the paternal grandparents, all of whom live in (omitted).  So while this case did not explore whether or not the father would be able to move to (omitted), usually a component element of any relocation case, or opposition to relocation by a parent, I consider that, given that the father resides with his parents and the mother resides with her parents, that any move would likely lead to a significant diminution or reduction of the family support which appears to be a factor in the strength of and resilience which the children appear to be showing under the present arrangements.

30. Those are my general findings and it is against those findings that I consider the legislative pathway set out in section 60B and section 60CA and 60CC of the Family Law Act 1975. One of the objects of the parts set out in section 60B is the desirability of a meaningful relationship between the children and their parents. Under section 60CA the children’s best interests are the paramount consideration. The best interests of the children are determined by a consideration of the benefits of the meaningful relationship with both parents and the need to protect the children from physical or psychological harm.

31. In this case, I am satisfied that the most salient factor is the benefit to the children of a meaningful relationship with both parents. Under section 60CC(3) there are additional criteria which I must consider. The relevant ones I consider as follows: the views of the children. Each of the children appear to support the continuation of the present arrangements. Under section 60CC(3)(b), there is a strong relationship between the children and each parent and their grandparents, paternal and maternal. I do not consider sections 60CC(3)(c) or 60CC(3)(ca) relevant. Under section 60CC(3)(d), there is to be no change in the circumstances of the children. Under section 60CC(3)(e), there is no practical difficulty in the children spending time with each parent. In regard to section 60CC(3)(f), the capacity of each of child’s parents and any other person to provide for the needs of the children, emotional and intellectual, I find that both parents are able to provide for the intellectual and emotional needs of the children. Subject to the remarks which I have already made about the hostility between the parties and, in particular, the father’s negativity about the mother and the need for some improved communication in the interests of the children, if the inability to communicate continues, I would consider that to be indicative of an inability of that parent, or indeed the parents, to adequately provide for the needs of the children.

1. So it is, in my view, a matter of extreme importance that they both take steps to remedy that very serious deficiency in their parenting capacities.

2. Sections 60CC(3)(g) and 60CC(3)(h) are not relevant in my view. Under section 60CC(3)(j), the existence of family violence; there has been family violence in the past and there is, I am told, a temporary protection order in place. Nevertheless, the family violence between the parties or any other person, which would include the mother’s brother, does not appear to have been repeated.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 23 September 2016