VEGA & VEGA

[2019] FCCA 980

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEGA & VEGA [2019] FCCA 980

Catchwords:
FAMILY LAW – Parenting – interim hearing – children withheld from primary carer – sibling separation – delivery up – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC,61DA, 61DA(3), 65DAA,

65DAA(3), 65DAA(5)

Cases cited:

Goode & Goode (2006) FLC 93-286

Morgan & Miles [2007] FamCA 1230

Deiter & Deiter [2011] FamCAFC 82

Applicant: MR VEGA

Respondent: MS VEGA

File Number: ADC 918 of 2019

Judgment of: Judge Kari

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Adelaide

Delivered on: 12 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Praolini

Solicitors for the Applicant: Furler & Co

Counsel for the Respondent: Ms Fuda

Solicitors for the Respondent: Duncan Basheer Hannon

ORDERS

1. That the Father deliver the children [X] and [Y] to the Mother at 12noon on Sunday 14 April 2019.

2. That thereafter and until further order the children [Z] (born … 2006), [X] (born … 2010) and [Y] (born … 2015) live with the Mother and that the Mother be permitted to relocate the children’s principal place of residence to Town A in the State of South Australia.

3. That until further order the children [X] and [Y] spend time with the Father as follows:

   (a)During term times until such time that the Father relocates to Town A on one weekend each month coinciding with the Father’s work roster, commencing at 4:00pm on Friday and concluding at 4:00pm Sunday;

   (b)During term times in the event that the Father relocates to Town A and coinciding with the Father’s work roster from the conclusion of school on Friday until the commencement of school on Monday in each alternate week.

   (c)For one half of all school holidays coinciding with the Father’s work roster PROVIDED HOWEVER that the Father’s time in the April 2019 school holiday period be suspended.

   (d)On Father’s Day from 5:00pm on Saturday until 5:00pm on Father’s Day PROVIDED HOWEVER that the Father’s time with the children shall be suspended on Mother’s Day at the same times.

4. That in relation to the child [Z]:

   (a)The parties shall do all such acts and things to engage a mutually agreed therapist to undertake counselling with [Z] and the parties at the therapists discretion, with the parties to do all such acts and things to obtain a mental health care plan to ameliorate all out of pocket expenses and the costs otherwise to be shared between the parties.

   (b)That [Z] spend such time with the Father in consultation with the therapist and in accordance with the therapist’s recommendations.

5. That the all handovers of the children be effected as follows (unless otherwise agreed in writing):

   (a)If a school day at school; and

   (b)If a non-school day and until such time that the Father relocates to Town A, inside the McDonalds Store at Town B.

6. That the Father be restrained and an injunction is granted restraining the Father from consuming alcohol 12 hours prior to and during any period of time that the children are in his care.

7. That the parties be restrained and an injunction is granted restraining each of the parties from:

   (a)Discussing these proceedings with the children or in their presence or hearing and/or permitting any other person to so do;

   (b)Denigrating the other parent to the children or in their presence or hearing and/or permitting any other person to so do.

8. That pursuant to section 11F of the Family Law Act 1975 (as amended) the parties and the children [Z], [X] and [Y] attend an appointment (or series of appointments) with a Family Consultant, the first appointment being on 26 June 2019 at 9:30am, with the parties to telephone the Registry on 1300 352 000 to confirm their attendance.

9. That following thereon the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

10. That the proceedings be adjourned for mention only to 16 July 2019 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 918 of 2019

MR VEGA

Applicant

And

MS VEGA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue that presents itself to the Court relates to the living arrangements for the three children of the parties relationship, namely [Z] (born … 2006 and aged 12), [X] (born … 2010 and aged 8 years) and [Y] (born … 2015 and aged 3 years).

2. The matter has come before the Court on an urgent basis in circumstances where it must be said that the Father has taken self-help measures and retained the children [X] and [Y] in his care, as and from the 14^th and 15^th of March 2019 respectively.

3. The Father retained the children as a result of the Mother having advised him on or about 3 March 2019 by email that she intended to move with the children from Town C where both of the parties and the children were living, to Town A, putting a travelling distance by car (it is agreed between them) of approximately 4 hours.

4. It equally must be noted from the outset that the Mother presented her proposed move to Town A it would appear as a fait-accompli, noting her affidavit material and the submissions of her Counsel, that she emailed the Father to foreshadow the move on 3 March 2019 and that within the fortnight she had moved to Town A (during the hearing and in response to a question from the bench the Mother’s Counsel submitted that the Mother had moved on the weekend of the 15^th March 2019 in circumstances where it was unclear from the Mother’s affidavit as to when she had actually relocated).

5. As a result of these factors, this family finds itself in crisis.

6. Of significance the children are no longer living together, as the child [Z] has relocated to Town A with the Mother in circumstances where the parties agree that [Z]’s relationship with the Father is significantly compromised and she has not spent any time with the Father since early 2018.

7. In the last fortnight, the children have each undoubtedly experienced significant upheaval as a result of the actions of each of their parents.  The Court is acutely aware that any decision that is made at this early juncture with respect to the children’s living arrangements will have ongoing consequences for each of the children.

Background

1. The brief history of the parents and their relationship is as follows:

   a.The parents are both in their early thirties.

   b.They began living together in 2005 and they married in 2006.

   c.They separated in or about the April 2016, and the Mother asserts that they remained living together under the same roof until she vacated the rental home they shared in Town C with the children in early July 2016.

2. Until the Mother’s relocation to Town A the parties agree that the children lived primarily with the Mother and that she has been their primary carer; with the parties agreeing that the Mother has not been in paid employment since the birth of their second child [X] in … 2010.

3. There is also no dispute between the parties that the Father is employed on a fly-in-fly-out (“FIFO”) basis with Employer at Town D.  While there is some dispute between the parties as to the Father’s previous work schedule, there is no dispute that in recent times and at present, the Father’s work roster is such that he works on a week-on, week-off basis.

4. In response to a question from the bench, Counsel for the Father submitted that the Father’s current work roster is such that the Father works Thursday to Wednesday in alternate weeks as follows:

   a.The Father travels to Town D on a Wednesday evening each alternate week; and

   b.The Father returns from Town D either the following Wednesday evening, or Thursday morning.

5. Counsel for the Father also submitted that the Father is presently on leave but that he would be going back to work “as soon as possible”.

6. It was not clear to the Court as to how the Father proposes to accommodate the children and their commitments in the week that he is living and working in Town D if indeed the Mother chooses not to return from Town A and [X] and [Y] were to remain living with the Father.

7. It may be that the Father had not considered this possibility, given that in his Initiating Application filed 8 March 2019 the Father seeks that all of the children (including [Z] with whom he has spent no time for over a year) live in a week about arrangement with handover on a Thursday, which would in essence dovetail with the Father’s work roster.

8. During submissions, Counsel for the Father acknowledged that the arrangements for the child [Z] would have to be different to that of [X] and [Y].  The Court was urged to make orders that [Z] obtain counselling in accordance with the Father’s application.  However curiously the Father was not proposing that there be any form of counselling that involved either of the parents with a view to restoring the relationship between [Z] and the Father.

9. Since the separation of the parties, they have each been living in rental accommodation in Town C.  The Father lives in a two-bedroom rental home at a cost according to the Father’s Financial Statement of $240.00 per week.  The Mother asserts in her Affidavit that she moved into separate rental accommodation with the children at a cost of $300.00 per week.

10. The parties own a residential property in Town E.  That property has been rented out from approximately late 2010 when the parties moved from Town E to Town D.  The property has remained tenanted following the parties relocation from Town D to Town C in approximately 2013.  It is not clear from the documents filed by the parties as to the amount of the rental income, where it is paid, nor whether the income is sufficient to cover all of the expenses for the Town E property, including but not limited to the mortgage payments which the Father asserts in his Financial Statement amount to $121.00 each week.

11. The parties agree that they have each re-partnered in more recent times:

    a.The Mother asserts that she began a relationship with Mr F who lives in Town A in approximately … 2018.

    b.While not addressed in any of the Father’s affidavit material (including the affidavit filed 5 April 2019 in response to the Mother’s Affidavit filed 3 April 2019), the Mother asserts that the Father began a relationship with Ms G shortly after the parties separated.  The Mother also asserts that Ms G spends time in the Father’s home with her two children.

12. While there is a dispute between the parties as to the exact nature of the living arrangements for the children in the post separation period, it is clear from what each of the parties have asserted that:

    a.The arrangements for the child [Y] have always been different to those of the older two children, given among other things his young age when the parties separated.

    b.On 22 August 2018 the parties entered into a Parenting Plan with respect to the children (annexure “A” to the Mother’s Affidavit filed 3 April 2019), which provided for:

    ·The child [X] to spend time with the Father on alternate weekends from “after school on Friday until the following Wednesday morning”.

    ·The child [Z] to spend time with the Father on alternate weekends at the same time as the child [X] “taking into consideration [Z]’s wishes”.

    ·The child [Y] to spend time with the Father on an increasing basis, which as and from September 2018 was described to be overnight time commencing Friday until Saturday.

    c.[Z] has not spent any time with the Father from early 2018 on the Father’s own assertions.

13. While it is acknowledged that the Father asserts that he has spent time with the children beyond that envisaged by the Parenting Plan, that issue is not one about which the Court can make findings at this early stage in the proceedings.

14. Equally, the Mother asserts that there have been times that the Father has unilaterally imposed additional time spending arrangements for the children on her, and that she has acceded and/or been given no option but to follow the arrangements imposed on her by the Father.  Again, that is not an issue about which any findings can be made at this early stage.

15. Another issue which dominated the submissions from the Mother’s Counsel during the hearing were matters relating to the Father’s alleged alcohol consumption and family violence, in circumstances where the Mother has asserted among other things:

    a.That the Father drank to excess, was frequently intoxicated (often in the presence of the children) and as a result of which the Father was at times out all night, caused a scene in public (including at [Z]’s dance concert in 2014 resulting in property damage to a door at the … Venue).

    b.An incident in December 2014 in which the Mother asserts that she was struck by the Father with the lid of a frying pan, which caused a cut to her right eyebrow and required her to attend upon her General Practitioner.

    c.That the Father frequently engaged in language towards her that could be described as “derogatory taunts”.

16. All of these alleged behaviours of the Father fit within the definition of family violence set out in section 4AB of the Family Law Act 1975 (“the Act”).

17. While it is impossible for the Court to make any findings about these allegations without the benefit of cross examination of the parties, it must be noted:

    a.That the Father acknowledges in both of the Affidavit’s that he filed with the Court that “I did drink too much at times throughout the relationship, being mainly confined to the latter years of the relationship”.[1]

    b.That the Mother attended upon her General Practitioner in December 2014 after she alleges she had been struck by the Father, and the medical notes from that appointment record that the Mother reported to her GP that “her partner threw some metal lid yesterday”, “after somw argument”, “according to her this is an ongoing issue”, “happened infront of her child”.  The notes also record that the Mother was  given the number of the “Domestic violence helpline number”.[2]

    [1] Paragraph 4 of the Affidavit of the Father filed 5 April 2019

    [2] Annexure “C” to the Affidavit of the Mother filed 3 April 2019

The legal principles

1. In any case involving children, whether it be at an interim or final hearing stage, the Court must regard the best interests of the child(ren) as the paramount consideration.[3]

   [3] Section 60CA of the Act

2. In determining what is in a child’s best interest the Court must take into account a range of factors set out in section 60CC of the Act, with those factors separated into primary considerations and additional considerations.

3. The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.[4] That presumption can be rebutted in certain circumstances, namely situations relating to abuse and/or family violence.

   [4] Section 61DA

4. At an interim stage of proceedings, such as here, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[5]

   [5] Section 61DA(3)

5. If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[6]

   [6] Section 65DAA

6. In the event that the Court rejects an equal time spending arrangement between the parents, the Court is required to consider the child spending “substantial and significant” periods of time with each of his or her parents, taking into account the child’s best interests and whether the arrangements are reasonably practicable.

7. The Act defines substantial and significant time as including days that fall on the weekend and days that do not fall on weekends or holidays.  Significantly substantial and significant time is defined as time which enables a parent to be involved in the child’s daily routine and occasions of significance to the child or his or her parents.  [7]

   [7] Section 65DAA(3)

8. In determining the practicalities of the arrangements for a child, the Court is required to consider matters relating to the distance between the parents homes, the parents capacity to implement a shared care living arrangement, the parents capacity to communicate with each other and resolve parenting issues, and finally the impact of the arrangement on the child.[8]

   [8] Section 65DAA(5)

9. In Goode & Goode (2006) FLC 93-286 at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:

   a.  identifying the competing proposals of the parties;

   b.  identifying the issues in dispute in the interim hearing;

   c.  identifying any agreed or uncontested relevant facts;

   d.  considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e.  deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f.   if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g.  if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;

   h.  if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;[80904]

   i.   if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;

   j.   if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and

   k.  even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

10. In Morgan & Miles[9], Justice Boland sitting as a single Judge on appeal held:

    a There is no special category of relocation cases under the Act. [10]Rather, cases that involve a consideration of one parent relocating the residence of a child are to follow the legislative framework already identified in these reasons; and

    b.  “The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parents, with whom a child lives predominately at the time of the application obtain such an order”.  [11]

    [9] [2007] FamCA 1230

    [10] Ibid at 72

    [11] Ibid at 74

11. In addition Her Honour concluded that “it is not distance per se which should be the determinative criteria.  In many cases what is relevant is the consequence of the move or proposed move.”[12]

    [12] Ibid at 91

Discussion

1. The Father’s position is that all of the children live in an equal shared care arrangement between both parents during term time, and that in addition the children live with the parties on equal shared care basis during the school holidays.  Explicit in the Father’s position is that the children remain living in Town C with the Mother, as he seeks an injunction restraining the Mother from relocating with the children more than 10km’s from her then address in Town C.

2. The Mother’s position is that the children live with her (presumably in Town A, although not expressly stated in her Response), and that they spend time with the Father coinciding with the Father’s FIFO work roster as follows:

   a.During school terms on one weekend each month from 5.30pm Friday until 4:00pm Sunday; and

   b.For one half of each school holidays.

3. In addition, the Mother proposes that the children be exchanged between the parents at the mid-point between Town C and Town A, being the McDonalds at Town B.

4. While the Father asserts that the Mother’s move to Town A is based solely on the Mother’s desire to pursue her relationship with Mr F.  The Mother rejects that assertion and asserts that in addition to her relationship with Mr F, her move has been prompted by the stress that the parties relationship has placed on her but in particular her financial constraints and employment opportunities, including:

   a.Her ability to find cheaper housing for herself and the children in Town A at a cost of $270.00 per week, noting that the rental home she was living in, in Town C had been listed for sale in any event.

   b.The failure of the Father to meet his child support obligations, with the Mother pointing to arrears of approximately $7,654.40, which the Father’s Counsel asserted during the course of submissions had now been reduced to by the Father to $3,000.00.

   c.That she has been offered employment with Mr F’s family in their business which affords her the flexibility in working and supporting herself, but also in continuing to care for the child [Y] as she does so.

5. The Mother asserts that she has shown an ability to facilitate a relationship between the children and the Father, pointing in particular to having acceded to the Father’s demands to have the children in his care on occasions in excess of that provided for in the Parenting Plan, and more recently in providing the children [X] and [Y] to the Father on 14 and 15 March 2019 in circumstances where she by that point knew the Father was opposed to her relocation to Town A.  It is on that basis, the Mother asserts that the Court can have confidence that she will continue to facilitate an ongoing relationship between the children and the Father.

6. In addition, the Mother points to an inability on the Father’s part to facilitate a relationship between her and the children, in circumstances where since the middle of March 2019 when the Father retained the boys, the Father has made no proposals for the children [X] and [Y] to see the Mother, or indeed their sister [Z].

7. The Father asserts that the Mother is unlikely to facilitate an ongoing relationship between the children and him.  He points in particular to the deterioration of his relationship with [Z], and what he asserts to be the Mother’s influence in that deterioration with reference to the text message that [Z] sent the Father in approximately January 2018 which he asserts is in language beyond [Z]’s level of comprehension and understanding and in addition that the communication includes adult issues about which [Z] should have no knowledge.

8. While it is impossible at this early juncture to make findings about these issues, it is clear on any objective view, that the children have become embroiled in the parental conflict, and that there are various factors which have led to the current situation.

9. Unsurprisingly against that backdrop, both of the parents agree that their current circumstances require there to be a different parenting arrangement for the children than that provided for in the Parenting Plan dated 22 August 2018.

Conclusion

1. It is unfortunate that the parties did not have the opportunity to consider the Mother’s proposed move to Town A without the pressure inflicted by the short time frame imposed by the Mother.

2. While I note the allegations of family violence, and that I am not in a position to make findings about those matters at this interim stage, I equally cannot ignore that there appears to be some contemporaneous independent corroborative evidence of the incident in December 2014,[13] and that issues relating to family violence may well have played some part in the Mother’s actions over the post separation period.

   [13] Deiter & Deiter [2011] FamCAFC 82

3. In my view however, it is apparent that both parents love their children.

4. While the parties each make criticisms of the other parent’s parenting capacity, in circumstances where the parties have avoided litigation and been able to amicably resolve parenting issues and time spending arrangements for almost 3 years without the involvement of the Court, it would appear that the parties at some level accept that the other parent is able to discharge their parental responsibilities adequately.

5. Of significance is a concession on the Father’s part that the Mother has been the primary carer of the children to date.  So much is clear from the Father’s FIFO arrangements, and the matters set out in the Parenting Plan dated 22 August 2018.

6. For reasons which appear opaque at this juncture but which may well have been fuelled by the actions of both parents, the relationship between [Z] and the Father has broken down.  In my view that relationship must be given some chance to be restored sooner rather than later to avoid the breakdown becoming permanent and irreparable.

7. What is of pressing concern to the Court however, is that these children, who have otherwise enjoyed arrangements which have seen them all living together with the Mother, have now been separated, and on the Father’s proposal would continue to be separated for a week at a time.  I say that, as I can not see that the child [Z] will suddenly begin living with the Father in a shared care arrangement given the events of the last year, without there being some professional input involving both of the parents and [Z].  Indeed how long it would take to restore the relationship between [Z] and the Father and whether that process is ultimately successful, remains to be seen.

8. The Father’s Counsel during submissions acknowledged that in the event that the Court was to accede to the Mother’s application to relocate the children’s residence to Town A, than the Father would contemplate a move closer to Town A.  Counsel for the Father agreed that the travelling time between Town A and the Father’s work in Town D would be reduced from a 4 ½ hour drive (being the drive from Town C to Town D) to a 4 hour drive.

9. It is to the Father’s credit that this concession was made, as it speaks to the Father having some insight into the children benefitting from having their parents live closer together, but also the ability of the Father to engage in the children’s lives (including their schooling, extra-curricular and community activities), if he and the Mother live proximate to each other.

10. In light of the Father’s concession, I can only wonder whether if given time, the parties might have come to an amicable arrangement about a move to Town A.

11. While I am critical of the Mother for the manner in which she presented the move to Town A, I can not ignore that she has been the primary care giver for these children since their birth.

12. It is these combination of factors, which tip the balance in favour of the Mother’s relocation of the children to Town A.

13. While I commented at the hearing that I would not be making orders with respect to parental responsibility, for the benefit of the parties, I make it clear that I have declined to apply the presumption as I do not consider that it would be appropriate for the presumption to be applied at this interim stage (noting as I do that the August 2018 Parenting Plan provided for the parties to share parental responsibility, that the Mother now seeks sole parental responsibility and that the Father’s application is silent with respect to this topic).

14. While I am prepared to make orders that the children live with the Mother in Town A, I am not prepared to limit the Father’s time with the children to the extent envisaged by the Mother if indeed the Father was to relocate to Town A or within proximate distance thereto.

15. I also consider it of importance that orders be made to ensure that this family receives some professional assistance in restoring the fractured relationships, and particularly that between the Father and [Z].

16. For all of these reasons, the orders are those set out at the commencement of these reasons for judgement.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Kari

Date: 12 April 2019