West and Simpson
[2012] FMCAfam 398
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEST & SIMPSON | [2012] FMCAfam 398 |
| FAMILY LAW – Children – parenting orders – consent orders – two children aged 8 years and 7 years living with mother – where parties have consented to various final parenting orders – where injunctive Order restraining relocation sought – changeover – whether risk – whether violence an issue – whether earlier arrangements about changeover should continue in final orders. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 65AA, 65DAA, 68L |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR WEST |
| First Respondent: | MS SIMPSON |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 7331 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 April 2012 |
| Date of Last Submission: | 24 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Corish |
| Solicitors for the Applicant: | Staunton & Thompson |
| Counsel for the first Respondent: | The Respondent appeared in person |
| Solicitors for the first Respondent: | No solicitor on the record |
| Independent Children’s Lawyer | Ms Robinson |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW [location omitted] |
ORDERS
The Respondent Mother is restrained from relocating the residence of the children of the marriage [X] born [in] 2003 and [Y] born [in] 2005 out of the Sydney Metropolitan Area without the consent of the Applicant Father or leave of the Court.
For the purpose of changeover between the parties at the commencement and conclusion of the time the children [X] and [Y] spend with the Father as provided by Orders 4, 5, 6, 7 and 8 Consent Orders made on 24 April 2012 the following arrangements will apply:
(a)On all occasions when the children’s time with the Father commences after school and concludes before school, the Father will collect the children from school and return them to school;
(b)On all occasions when the children’s time with the Father does not commence after school, the Father is to collect the children from the Mother’s residence; and
(c)On all occasions when the children’s time with the Father does not conclude at the commencement of school, the Mother is to collect the children from the Father at [omitted] Park at [Suburb A].
IT IS NOTED that publication of this judgment under the pseudonym West & Simpson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7331 of 2010
| MR WEST |
Applicant
And
| MS SIMPSON |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Application
The parties in this matter have agreed on a significant number of parenting issues, but there are two matters that need a judicial determination.
First, the Father seeks an order restraining the parties from changing the residence of the children to a distance in excess of 35 kilometres from the residence of the other parent without the agreement of the other parent or order of the Court. The Mother opposes that order.
Second, the Father seeks an order relating to those changeovers between the parties that do not occur at the children’s school. He considers that he should collect the children from the Mother’s residence and the Mother should collect the children from his residence. At present, the Mother collects the children from the Father at [omitted] Park, at [Suburb A], which is near to the Father’s residence. The Mother wants the existing arrangement to continue and does not want to be required to collect the children from the Father’s residence. She is uncomfortable about attending his residence and points out that she had previously had an Apprehended Violence Order against the Father.
Background
The parties commenced living together in 2002 and were married [in] 2004. They separated [in] 2009.
There are two children of the marriage. [X] was born [in] 2003 and [Y] was born [in] 2005.
The Father commenced proceedings in this Court on 19th November 2010 by filing an Application and supporting documents.
On 14th February 2011 the parties entered into interim consent orders providing that:
a)The parties should have equal shared parental responsibility for the children;
b)The children would live with their mother;
c)The children would spend time with their father at various defined times during a two week cycle;
d)The parties would have regular telephone communication with the children;
e)Changeovers would take place at the children’s school or, outside school time, by the Mother delivering the children to the Father at [omitted] Park at [Suburb A] and the Father returning the children to the Mother at her place of residence; and
f)That each party keep the other informed of any changes or proposed changes in their residential address by providing at least 28 days written notice to the other party.
The children’s interests were ordered to be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 on 18th April 2011.
A Family Report was ordered under s.62G of the Act on 16th August 2011.
The Report was prepared by Dr B, a Consultant Clinical Psychologist on 10th October 2011. It was released to the parties on 2nd November 2011.
The parties attended a Conciliation Conference before a Registrar of the Court on 16th December 2011 in respect of their property claims. The conference was adjourned to 10th February 2012.
On 13th March 2012 the parties entered into consent orders resolving the property issues between them.
On 24th April 2012, with the aid of the Independent Children’s Lawyer, Ms Robinson, the parties entered into final consent orders, resolving all but two of the parenting issues between them.
The Consent Orders provide that, in summary:
a)The parties should have equal shared parental responsibility for the children;
b)The children should live with their mother;
c)The children should spend time with and communicate with their father in a two week cycle, with the time increasing after six months and increasing again after a further six months;
d)The children would spend time with each parent at defined times over the Christmas period and in seven day blocks during the Christmas school holidays, increasing from one block of seven days in the 2012/2013 school year to two blocks in the 2013/2014 school year and beyond.
Issues
What remains outstanding are:
a)the Father’s wish for an order restricting the parties to living within 35 kilometres of each other; and
b)the Father’s wish for the changeover venue at [omitted] Park to be replaced by his own residence on those occasions when changeover does not take place at the children’s school or the Mother’s residence.
Evidence and Submissions
Neither party gave oral evidence.
The Independent Children’s Lawyer, the Respondent Mother (who appeared in person) and the Father’s solicitor, Mr Corish, all addressed the Court.
At the request of the Independent Children’s Lawyer, the Mother addressed the Court first so that the ICL and the Father could be made aware of her proposals.
The Mother told the Court that she believed that the provisions in the earlier interim Orders should be retained. Thus, the Father would still return the children to her at [omitted] Park at [Suburb A].
The Mother stated that when the Interim Consent Orders were made she still had an Apprehended Violence Order in force against the Father. She said she found [omitted] Park to be safer than the Father’s residence and she was reluctant to go to his residence to collect the children.
The Mother also said that she did not wish there to be an order restraining the parties from changing the residence of the children to a distance of more than 35 kilometres from the residence of the other party. She was still living with her parents at [Suburb B] and had no plans to move house.
The Independent Children’s Lawyer, Ms Robinson, told the Court that she had “no real position” on the Father’s proposal restraining the parties from moving more than 35 kilometres from each other’s homes.
As to changeovers, Ms Robinson noted that they would mostly take place at the children’s school. She also pointed out that [omitted] Park is situated at [Suburb A], which is reasonably close to the Father’s current address at [Suburb C]. Ms Robinson was aware that the Mother was not comfortable with the idea of collecting the children from the Father’s home.
The Father’s solicitor, Mr Corish, submitted that the parties had separated in 2009 and there had been an Apprehended Violence Order made early in 2010 for a twelve month period. He referred the Court to the Family Report by Dr B.
The Father proposes an order restraining the parties from relocating more than 35 kilometres away:
That the parties be restrained from changing the residence of the children to a distance in excess of 35 kilometres from the residence of the other party without agreement in writing or court order.
The Father also proposes orders about changeover:
A. That for the purposes of Orders 4,5,6, 7 and 8 when changeovers are unable to occur at the children’s school(s), unless otherwise agreed between the parties in writing, changeovers shall occur as follows:
(a)at the commencement of the time, with the father to collect the children from the mother’s residence;
(b)at the conclusion of the time, with the mother to collect the children from the father’s residence.
B. For the purpose of (the previous Order), each parent shall:
(a)alert the other parent who does not have the children in their care, that they have arrived to deliver the children by way of text message; and
(b)shall not leave the other parent’s residence until they have witnessed the children being let in the house or physically greeted by the other parent.
C.That in the event that the father is responsible for dropping the children at the mother’s residence it is agreed that he shall remain near his vehicle and shall not enter the mother’s place of residence.
The Relevant Law
Section 60CA of the Family Law Act 1975 requires the Court, in deciding whether to make a particular parenting Order, to regard the best interests of the children concerned as the paramount consideration (see also s.65AA).
A Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of s. 60CC of the Act. I have done so in this case and will refer to those matters that are relevant.
The Court will consider the views of the children concerned under paragraph 60CC(3)(a) where the children are of sufficient maturity for those views to be expressed. The weight to be given to those views, if any, is a matter for the Court. The Court may consider anything contained in a report given to the Court under subsection 62G(2). I am satisfied that the Family Report from Dr B is given to the Court under subsection 62G(2).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the children’s best interests (s.61DA(4)).
If the presumption of equal shared parental responsibility does apply, then the Court is required by s.65DAA to consider whether it is in the children’s best interests and reasonably practicable for them to spend equal time with each parent (s.65DAA(1)) or, failing that, whether it is in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (s.65DAA(2)).
I have considered all of the above matters.
Conclusions
It is a primary consideration under paragraph 60CC(2)(a) that the Court must consider the benefit to the children of having a meaningful relationship with both of their parents. Dr B noted in his Report that both children appeared to be “relaxed and comfortable” with each of their parents.[1] The Consent Orders provide for the children to live with their mother and to spend time with their father.
[1] Family Report paragraph [76]
The Court is required by paragraph 60CC(2)(b) to consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Dr B stated that:
On the basis of individual and joint interviews there was no evidence obtained or allegations of current physical violence between Mr West and Ms Simpson or from either parent toward the children. While allegations were made, there was no indication that either Ms Simpson or the children were in fear of Mr West at the time of the assessment.[2]
[2] Ibid
There is no evidence of any unacceptable level of risk in the children living with or spending time with either parent.
The Court should consider the children’s views and give them such weight as their maturity and level of understanding would indicate. The two children have a positive view of each parent. They are still very young at 8 years and 6 months ([X]) and 7 years and one month ([Y]).
The children have been described by Dr B as having a relaxed and comfortable relationship with each of their parents.
The parents have an observed level of hostility towards each other. Dr B stated:
There was an observable level of animosity between Ms Simpson and Mr West (which) was evident through their body language, though to their credit, both individuals conducted themselves appropriately during a (brief) joint interview.[3]
[3] Family Report at [75]
Despite this, the parties have been able on more than one occasion to negotiate parenting arrangements so that the girls can live and spend time with each parent.
If the parties were to move a distance greater than 35 kilometres from each other’s home, there may be some distress on the part of the children, but there is no evidence that either party is planning such a move. Whilst the mother may not wish to remain living with her parents forever, there is nothing to show that she plans to move to another State, for example.
There is no great practical difficulty or expense in the children spending time with their parents, notwithstanding the strained relationship between the parents. The parties live in suburbs of Sydney, the Father at [Suburb C] and the Mother at [Suburb B].
The two children are little girls aged eight and a half and seven years. There are no unusual features about their background or lifestyle.
There is nothing to show that the parties have other than a positive attitude to the children and the responsibilities of parenthood, except that Dr B has suggested that the Father may need to seek some assistance in regard to his parenting style.
Dr B stated:
While there are allegations of some degree of resistance of the girls wishing to attend or alternatively wanting to remain at Mr West’s residence, these did not appear overly significant and are yet to manifest into identifiable conduct by the children. Mr West would do well however, to seek further educational support about his parenting style particularly in the context of a separate parenting arrangement.[4]
[4] Ibid at [76]
There have been allegations of family violence in the past. After an incident in late January 2010, the Mother applied for an Apprehended Violence Order against the Father. He consented without admissions to an Order being made for a period of five months from 22nd April 2010. A copy of that Order forms Annexure “A” to the Father’s affidavit of 19th November 2010.
The Mother applied, through the Police, for an extension of that Order for a period of two years on the basis that she feared constant harassment from the Father and had made reports to the Police about breaches of the existing order. The Application was listed before the Local Court at [Suburb C] on 12th October 2010. It was adjourned to 15th April 2011.[5] The Apprehended Violence Order is no longer in force.
[5] Affidavit of Ms Simpson 11.2.2011 at paragraph [9]
Nevertheless, the Mother is uncomfortable about going to the Father’s residence on changeover and I do not propose to require her to do so. The arrangement at [omitted] Park does not appear to be particularly onerous to either party.
There is very little in the way of evidence to suggest that the Mother is likely to relocate the residence of the children outside the Sydney Metropolitan Area, except for paragraph [46] of the Father’s affidavit of 19 November 2010:
On 22 October 2010 [Y] said to me words to the effect,
“Mummy said we might be moving to the country.”
I did not speak further about this with [X] (sic). Ms Simpson has not discussed her proposals for care arrangements with the children since the sale of the home. I am very concerned she may leave the locality and prevent the parenting agreement continuing.[6]
[6] Affidavit of Mr West 19.10.2010 at paragraph [46]
In her affidavit of 11th February 2011 the Mother referred to that paragraph of the Father’s affidavit and said merely:
I do not know and cannot admit the contents.[7]
[7] Affidavit of Ms Simpson 11.2.2011 at [4.46]
There is no other evidence on that subject and in my view the threat of the Mother removing the children’s residence to a place far away from the Father is minimal. Accordingly, the only Order necessary at this stage is an injunction restraining the Mother from relocating the children’s residence outside the Sydney Metropolitan Area.
The Court must always, when making parenting orders, apply the presumption under s.61DA that it is in children’s best interests for their parents to have equal shared parental responsibility, unless it does not apply where there are reasonable grounds to believe there has been abuse or family violence or the presumption is rebutted if the Court is satisfied that it would not be in the children’s best interests (see Goode v Goode[8] at [47]).
[8] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In this case, the parties have consented to an order that they should have equal shared parental responsibility in paragraph 2 of the Minute of Consent Orders approved by the Court on 24th April.
The Court needs to consider equal shared care under s.65DAA(1), but in this case the parties have consented to Orders that effectively provide an increasing amount of time with the Father leading to substantive and significant time with him (s.65DAA(2)).
There will be an order restraining the Mother from relocating the children’s residence out of the Sydney Metropolitan Area without consent or leave of the Court, but at this stage no more restrictive order appears to be justified on the evidence.
The arrangements for changeover at school where possible, delivery to the Mother at her residence and to the Father at [omitted] Park will continue, as has been the case up to now. Eventually, if there are no incidents between the parties the relationship between them may improve. It would be in the children’s best interests if it did.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 May 2012
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