Watkins and Rike

[2014] FamCA 512

FAMILY COURT OF AUSTRALIA

WATKINS & RIKE [2014] FamCA 512

FAMILY LAW – CHILDREN – Application to review Registrar’s decisions as to parenting orders, subpoena and costs – Where the mother seeks orders for sole parental responsibility – Where there is no evidence before the Court on children’s best interests – Where the Court declines to determine the issue of parental responsibility on an interim basis – Where the father seeks an order to spend more time with the children – Where the effect of a separation of a 21 month old from a primary carer is balanced against the need of the child to spend frequent and regular time with each parent.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Watkins

RESPONDENT: Ms Rike

FILE NUMBER: SYC 3458 of 2011

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Macpherson & Kelley Lawyers

Orders

IT IS ORDERED

1. That Order 2 made by Senior Registrar Campbell on 15 May 2014 be discharged.

2. That the application of the father to issue a subpoena to the Department of Immigration and Citizenship is dismissed.

3. That the Order that the parents have equal shared parental responsibility for the children J, born … 2010, and Y, born … 2012, be discharged.

4. That the children, J and Y, live with the mother when they are not spending time with the father, in accordance with these Orders.

5. That the children spend time with the father as follows:

   (a)each Tuesday from 9.00 am (for Y) or after preschool (for J) until 6.00 pm;

   (b)each Thursday from 9.00 am (for Y) or 2.30 pm (for J) until 6.00 pm;

   (c)       each Sunday from 9.00 am to 6.00 pm; and

   (d)each alternate weekend commencing on the next weekend they are due to spend time with the father pursuant to the orders of 18 March 2014 from 9.00 am on Saturday until 6.00 pm on Sunday.           

6. That for the purpose of changeovers, the mother cause Y to be delivered to the father on Tuesdays and Thursdays at 9.00 am at McDonald’s at Suburb A and that the father collect J from preschool.

7. That the mother cause the children to be delivered to the father at 9.00 am on the Saturday when they spend the weekend with him, and on Sundays when they spend Sunday with him, at McDonald’s at Suburb A unless the parties agree in written form, either by letter, email or text, on another location.

8. That the father return the children to McDonald’s at Suburb A.

9. Otherwise, the Orders in accordance with Orders 3(c), 3(d) and 5 to 11, inclusive, of the Orders made on 18 March 2014 continue.

10. That the matter be referred to the list clerk for the appointment of a first-day trial with such expedition as is appropriate, the date to be fixed after 12 September 2014, which is the date on which affidavits relating to the jurisdictional issue are to be filed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watkins & Rike 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 3458 of 2011

Mr Watkins

Applicant

And

Ms Rike

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings arising out of a de facto relationship asserted between Mr Watkins, to whom I shall refer as the father, and Ms Rike, to whom I shall refer as the mother.  They have two children, J, born in 2010, and Y, born in 2012.

2. The father before me applies to review decisions of Senior Registrar Campbell made on 18 March 2014 as to parenting orders; on 16 April 2014 in relation to the issue of a subpoena; and on 15 May 2014 in relation to costs. 

3. In relation to the issue of a subpoena, the father sought to issue a subpoena to the Department of Immigration and Citizenship to produce records relating to a former nanny employed by the mother who is no longer in Australia. 

4. Senior Counsel for the father conceded that the subpoena has no utility unless the affidavit of the former nanny is sought to be relied upon at some time in the future.  Accordingly, the application to review that order will be dismissed. 

5. In relation to the issue of costs, on 15 May 2014 Senior Registrar Campbell heard an application by the father to restrain the mother from moving a significant distance from J’s preschool.  The mother offered an undertaking not to move more than 20 kilometres from B School.  The father wanted the distance to be five kilometres.   

6. The Senior Registrar accepted the mother’s undertaking and dismissed the father’s application.  The Senior Registrar ordered the father to pay the mother’s costs of the application. 

7. After the proceedings concluded on 15 May 2014 the father received an email from a real estate agent in relation to a property at F Street, Suburb A.  The email confirmed that the mother had agreed to lease the property at Suburb A, commencing on 19 May 2014, and had confirmed her agreement with the real estate agent the day before, that is, on 14 May 2014.

8. The mother must have known on 15 May 2014 that she would remain in Suburb A.  However, she did not tell the father or the Court that she had negotiated the lease.  Had she done so, it would not have been necessary for the application to proceed. 

9. In the course of the proceedings the father’s solicitor prepared a Minute which read: 

   The parties agree that the mother and the children will move into the property at [F Street, Suburb A] being the property the mother chose and whereby the father has guaranteed the rent for the duration of the lease which is 12 months.

10. The mother refused to sign the minute. 

11. The fact that the mother had committed to live in the property at F Street, Suburb A, was highly relevant to the application before the Senior Registrar but that information was not conveyed to him.  The proceedings were necessitated by the conduct of the mother and it is not appropriate, in those circumstances, that the father pay her costs. 

12. The order for costs made 15 May 2014 will be vacated.

13. In relation to parenting matters, the orders that the Senior Registrar made on 18 March 2014 dealt with parental responsibility, with the time the children would spend with the father, with changeovers, and placed the children on the Airport Watch List. 

14. The father sought to review all of the orders, although it became apparent in the course of the hearing that he did not challenge either the order for parental responsibility or the Airport Watch List orders. 

15. The mother sought orders that she have sole parental responsibility in the proceedings before me.  The issue of parental responsibility is an issue to be determined on the best interests of the children.  There is presently no evidence upon which the Court could determine whether sole parental responsibility or equal shared parental responsibility is in the best interests of these children and I do not propose to determine that issue on an interim basis.

16. The children are almost four years old and 21 months.  The father has a daughter C from a previous relationship who is aged five years. 

17. There is a dispute about the periods when the parties lived together and the extent to which the father cared for the children.  On the mother’s case, they lived together from J’s birth until about April or May 2011, with the exception of a short time in December 2010.  On the mother’s case, they then lived together from August 2011 until January 2014. 

18. On the father’s case, the parties did not live together after October 2010.  The parties cannot agree on the time that the children spent with the father but, on any version of the events, the mother has been their primary carer.   

19. On 18 March 2014, Senior Registrar Campbell ordered that the children live with the father each Tuesday from 1.00 pm until 5.00 pm and each alternate weekend from 11.30am on Saturday to 4.00 pm Sunday. 

20. The father now seeks an order that the children live with him on Friday from 9.00 am (for Y) or after pre-school (for J) until Sunday at 6.00 pm in the first week of each fortnight; and from Tuesday at 9.00 am to 6.00 pm on Thursday in the second week. 

21. In the alternate, the father seeks orders that the children live with him each week from Tuesday at 9.00 am (for Y) or after pre-school (for J), until Wednesday at 6.00 pm, and each week from 9.00 am Saturday to 6.00 pm on Sunday. 

22. The mother seeks an order that the children live with the father each Tuesday from 1.00 pm until 5.00 pm and on each alternate Saturday and Sunday from 11.30am until 5.00 pm.  The mother’s proposal does not include any provision for overnight time for the children. 

23. The mother agreed to the children having overnight time with the father on the weekend of 18 and 19 January 2014 and on the weekend of 25 and 26 January 2014.  She offered overnight time on 1 and 2 February 2014 and agreed to overnight time on 15 and 16 February 2014.  On that occasion, the father withheld the children and did not return them to the mother until Monday, 17 February 2014. 

24. After 17 February 2014, the mother did not agree to overnight time and the father refused to spend time with the children on any other basis.

25. The children have attended with their father in accordance with the Orders of 18 March 2014.  The mother says that the children are unsettled after returning from the father.  The father says they are happy and settled when they are with him.  Both may well be true. 

26. I am conscious of the fact that the orders which are to be made and the determination which I make, is made on an interim basis and the evidence is untested. 

27. The father relied upon a number of affidavits.  In an affidavit sworn 4 July 2014 the father says that a discussion took place between the parties, initiated by the mother.  The father at paragraph 128 of that affidavit says:

    On 16 May 2014 I received a telephone call from [the mother].  [The mother] said to me words to the following effect,  “I want to reach a deal with you without proceeding to Court.  Court is a waste of time.  We are wasting our money on lawyers.  If you let me have the house in [Town D] for the weekend and the [Suburb A] house during the week I will let you have access to the children that you want.  Also, I want more money from you.  I want $100,000 and rental guarantee for [Town D].” 

28. At the time the mother wanted to rent a property at Town D as a weekender.

29. The father says that he agreed, in essence, to those terms.  The father says at paragraph 130:

    I said to her words to the effect, “It’s a big commitment from me in advance and whilst I would like to trust you, things like the false AVO and your history of reneging means I need this documented.  Should I get my lawyer to prepare something?”  To which she replied “I was hoping we do not have to deal with lawyers anymore but if it says what we agreed to and you give me the 100,000 this weekend and a letter from you to the [Town D] agent, I will sign it.”

30. The father gave the mother a cheque for $100,000. 

31. The mother makes no mention of this weekend or those discussions in her affidavit. 

32. On 22 May 2014 the father’s solicitor forwarded a document to the mother’s solicitor under cover of a letter which said:

    We are instructed that an agreement was reached between the parties for the children to spend (2) two nights each week with our client as well as four (4) block periods of one week each per year. 

33. The terms of settlement which were enclosed provided for the children to live with the father in a four-weekly cycle; in the first week from after school Friday until 6.00 pm Sunday; in the second week from 10.00 am Tuesday until 6.00 pm Thursday; in the third week from after school Friday until 6.00 pm Sunday and in the fourth week from 10.00 am Tuesday until 6.00 pm Thursday. 

34. The cheque for $100,000 was cleared. 

35. The mother did not sign the terms.  The mother, through her Counsel, denies that any agreement was reached between the parents.  However, she gives no evidence of the reason for which the father paid her $100,000. 

36. Although the mother says that no agreement was reached, she does not appear to deny that there were discussions where the arrangements for the children to spend overnights with the father were discussed in the context of, and contemporaneously with, discussions about the payment of $100,000.

37. It is not disputed that the children would benefit from a meaningful relationship with both of their parents. 

38. There is no current allegation of family violence and no allegation of family violence involving the children.  There were defended proceedings whereby an interim apprehended domestic violence order was sought on behalf of the mother against the father for the protection of the mother on 7 March 2014.  After hearing evidence, the learned Magistrate dismissed that application. 

39. A child responsive program memorandum was prepared in this matter by a Family Consultant, Ms E. 

40. In the memorandum, Ms E notes that the mother, on an interim basis, sought a continuation of the current arrangement, that is, the arrangement imposed by the Orders of 18 March 2014 made by Senior Registrar Campbell, with the option of the father spending additional daytime with the children as arranged between the parents. 

41. Both parents advised Ms E that, ideally, they would like a flexible parenting arrangement. 

42. They also each advised that they were seeking an order for equal shared parental responsibility. 

43. Turning then to the factors which are relevant under section 60CC(3) of the Family Law Act 1975 (Cth):

44. The father reports that J has expressed a wish to spend more time with him.  Y is only 21 months old and has expressed no relevant wishes. 

45. In relation to the children’s relationships with each of their parents, Ms E in her memorandum says this:

    Both (the father) and (the mother) report the children as having positive and loving relationships with their older parental half-sister [C] who also attends [B School].  Neither parent raised concerns about the nature of the relationship between the children and the other parent.  They each said that they accept and support that it is in their children’s best interests to continue to be able to spend time with each of them.

46. C’s relationship with the children and the children’s relationship to C is an important relationship which needs to be protected and fostered.

47. In relation to the effect of separation from a significant figure, there is no evidence in relation to Y’s capacity to be separated from her mother for significant periods of time.  There is a need to be cautious about the separation of a 21-month old child from a primary carer.  However, the effect of Y being separated from her mother overnight would be ameliorated by the fact that her brother, J, would be with her and C would be with her on occasions.

48. The Court was not assisted by any expert evidence in relation to this issue. 

49. Doing the best I can, I find that the time that the children spend with each parent needs to be frequent.  There is a need to balance the time so that neither child is separated for a lengthy period from either parent.  The children are now accustomed to overnight time and it would be a retrograde step to cease overnights but one night of overnight time per fortnight is appropriate.

50. J goes to pre-school on Thursdays and Fridays until 2.30 pm and for a few hours on Tuesday.  C is with the father every Tuesday night and three weekends out of four. 

51. Both parties have accommodation in the Suburb A area.  The father has a farm at Town F and the mother has access to a property at Town D. 

52. Neither parent works.  Each is available to care for the children.  Both engage nannies if they need assistance, and the mother uses a nanny for changeovers.

53. In my view, balancing the needs of the children to spend frequent and regular time with each parent, and the need in relation to Y not to be separated for excessive periods of time from her primary carer, the appropriate arrangements for the children, which I intend to put in place, are as follows.

54. The children will spend time with their father each Tuesday and Thursday from 9.00 am (for Y) or the conclusion of pre-school (for J) until 6.00 pm.  They will also spend time with their father each Sunday from 9.00 am to 6.00 pm.  In addition, the children will spend each alternate weekend with the father from 9.00 am Saturday until 6.00 pm Sunday.

55. Changeovers will take place at McDonald’s at Suburb A unless otherwise agreed.  The mother does not attend changeovers.  There is no basis for an order that the father not attend. 

56. The orders I make will cause the children to be delivered to the father at McDonald’s at Suburb A at the commencement of the time, noting that the father will collect J from pre-school where appropriate, and the father will return the children to McDonald’s at Suburb A at the conclusion of the time.

57. No submissions were directed by either Counsel in relation to the special occasions about which each sought different orders and, in those circumstances, I propose that the orders of the Senior Registrar will continue.

58. The mother sought an order that the father have hair follicle drug testing.  She relies upon a statement she alleges was made to her by a Mr G.  Mr G did not swear an affidavit.  The mother asserts that Mr G is an employee of a business in which the father has an involvement.  In the mother’s affidavit, she says that Mr G said to her “(The father) is doing at least three grams of coke per day.”

59. There is no indication of the source of Mr G’s knowledge.  He does not claim to be an eye witness. 

60. The father denies that Mr G is an employee of a company with which he has an association and gives evidence that he had a conversation with Mr G and Mr G denies the alleged conversation with the mother.

61. The father is already subjected to a random drug and alcohol testing regime in the course of occupational training.  So far, he has had one test for alcohol only.  I do not consider that the evidence upon which the mother relies in relation to her conversation with Mr G can be given sufficient weight to justify the making of an order for hair follicle drug testing such as she seeks, particularly in circumstances where there is no suggestion by the mother that the father used drugs during the relationship and I do not propose to make that order.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 July 2014.

Associate:   

Date: 8 July 2014