Weston and Hill

[2016] FamCA 1056

FAMILY COURT OF AUSTRALIA

WESTON & HILL [2016] FamCA 1056

FAMILY LAW – CHILDREN - PARENTING

APPLICANT: Mr Weston

RESPONDENT: Ms Hill

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

FILE NUMBER: SYC 1939 of 2016

DATE DELIVERED: 8 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Frost

SOLICITOR FOR THE APPLICANT: Nicholas James Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Horizons Family Law Centre Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

ORDERS

IT IS ORDERED

1. That orders 2, 3, 4, 6, 8 and 9 made 26 August 2016 be vacated.

2. That the child B born … 2014 (“the child”) live with the mother.

3. That the mother be permitted to reside with the child in Sydney.

4. That the father spend time with the child in Melbourne on the weekend immediately following the date of these orders and every 4^th weekend thereafter as follows:

   a.   For a period of 24 weeks or six occasions of time:

   i.From 3pm until 6pm on Friday provided that the father notifies that mother that he will be available to spend time with the child;

   ii.From 9am until 6pm on Saturday; and

   iii.From 9am until 1pm on Sunday.

   b.   Thereafter and for a period of 24 weeks or a further six occasions of time:

   i.From 3pm until 6pm on Friday provided that the father notifies the mother that he will be available; and

   ii.From 9am on Sunday until midday on Sunday.

   c.   Thereafter until further order of the Court from 3pm on Friday until midday on Sunday.

5. That the father spend time with the child in Sydney on the 3^rd weekend following the date of these orders and every 4^th weekend thereafter as follows:

   a.

   i.From 9am until 6pm on Saturday; and

   ii.From 9am until 1pm on Sunday.

   b.Thereafter and for a period of 24 weeks or six occasions of time from 9am on Saturday until midday on Sunday;

   c.Thereafter and pending further order:

   i.From 3pm on Friday until midday on Sunday.

   d.The father is to give the mother no less than 48 hours’ notice if he does not intend to spend time with the child pursuant to this order.

6. That for the purpose of this facilitating the child’s time with the father under these orders:

   a.   With respect to the child’s time with the father in Melbourne:

   i.   The father pay the cost of the mother’s and the child’s flights to and from Melbourne and transport to and from the airport in Melbourne;

   ii.   The mother pay the costs of her accommodation in Melbourne; and

   iii.The father collect the child from and deliver the child to the mother’s accommodation in Melbourne at the commencement and conclusion of the child’s time with him.

   b.   That with respect to the child’s time with the father to be spent in Sydney the mother shall deliver the child to the father at the commencement of his time with the child provided that the address to which she is to deliver the child is within an area bounded by the central business district, the airport to the South, the Eastern suburbs and the inner West.

   c.   That the mother shall collect the child from the father at the conclusion of his time with the child.

7. That the father pay his own costs of travel and accommodation.

8. That the father be permitted to contact the child by Skype at 5pm each day that the child is in the mother’s care or otherwise as agreed between the parents.

9. That the mother be permitted to contact the child by telephone or Skype each Friday and Saturday that the child is spending time with the father overnight or as otherwise agreed between the parties.

10.That each parent is to keep the other informed of their residential address and contact telephone number and email address.

11.That each party is to inform the other promptly of any significant injury or illness suffered by the child and details of any medical treatment given to the child.

12.That this matter be listed before a Registrar for Directions.

13.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED

14.That the application for a stay currently listed before Senior Registrar Campbell is withdrawn.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weston & Hill 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 1939  of 2016

Mr Weston

Applicant

And

Ms Hill

Respondent

REASONS FOR JUDGMENT

1. Ms Hill, the mother, and Mr Weston, the father, have a child B, born in 2014, who is age two and a half years. 

2. The mother was born and raised in the United Kingdom. She has no family in Australia.  The father and the extended paternal family live in Melbourne.  The mother met the father when on a working holiday in Australia, and they started living together in Melbourne in 2013. 

3. The mother, pregnant, returned to the United Kingdom in December 2013.  The father joined her there in February 2014.  They moved to Australia on 2 February 2016.  The mother travelled to Australia on a partner visa.  They lived with the father’s parents until they separated on 22 March 2016.  They had been in Australia for six weeks. 

4. The mother remained in Melbourne, living with a friend, until 26 March 2016.  During those four days, the father spent time with the child.  The father and the mother exchanged text messages about where the mother and the child might live in Melbourne.  The mother had no job, no income and only a small amount of savings.  The father did not make any concrete proposal for her and the child to be housed.  At that time, the father had savings of $35,000 and a job.  Some few weeks before, he had successfully applied to lease a flat in which the family might live, but the lease was not taken up. 

5. The mother travelled to Sydney, having been offered accommodation by her only other close friend in Australia.  On 1 April 2016, the mother filed an application in the Federal Circuit Court seeking orders that she be permitted to relocate with the child to the United Kingdom.  She sought interim orders permitting the child to remain with her in Sydney until her substantive application had been determined.  She proposed arrangements for the father to spend time with the child. 

6. The father, in response, sought orders that the child live with her mother in Melbourne.  He sought an interim order that the mother return the child to Melbourne. 

7. In April 2016, the mother sought assistance from the C Housing Association, a community housing association in Melbourne, to find accommodation for herself and the child.  In June 2016, she was told that she was not eligible for assistance because she did not live in Melbourne.  She began looking for accommodation in Sydney. 

8. The E Centre, to which I will refer as “the Centre”, in Suburb D, found accommodation for her, and she and the child moved into a two-bedroom apartment in Suburb D in June 2016.  She has a lease on that apartment for a year.  The Centre assisted the mother to obtain rental assistance from the New South Wales Government through the Starting Safely program, which will be available to her when her current lease expires.  That assistance will last for up to three years. 

9. The child was enrolled in kindergarten on two days each week.  They joined a playgroup.  In July 2016, the mother enrolled in a TAFE course in community services, attending classes on three days each week. 

10. The interim applications came before Senior Registrar Campbell on 26 August 2016.  the child was represented by an independent children’s lawyer.  The Senior Registrar ordered the mother to return to Melbourne within eight weeks and, to facilitate her return, ordered the father to pay her $2,000 and to pay urgent spousal maintenance of $250 per week for a minimum of three months, or pending further order.  It was implicit in the orders of the Senior Registrar that the mother would be able to find accommodation for herself and the child in Melbourne.  The Senior Registrar, in consequence, ordered that the proceedings be transferred to Melbourne.

11. The mother has filed an Application to Review the orders of the Senior Registrar, and thus the matter comes before me for determination as a hearing de novo. 

12. The financial circumstances of both of the parties are relevant here.  The mother is in receipt of Centrelink payments of $500 per week and receives child support of $26 per week for the child.  The father is employed and receives $1,015 per week.  In his Financial Statement sworn 6 September 2016, he deposed to savings of about $12,000.  He continues to live with his parents.

13. In her affidavit sworn 12 October 2016, the mother deposed to her efforts to find accommodation in Melbourne in order to return with the child in compliance with the orders made 26 August 2016.  Copies of correspondence to and from various organisations are annexed to her affidavit.  She also visited rental agents in Melbourne when she took the child to Melbourne to see her father. 

14. In summary, the mother deposed that she has sought assistance without success from a number of housing services and agencies in inner and outer Melbourne.

15. F Community Care has attempted on her behalf to find accommodation for her in Melbourne without success.  She has viewed various properties in Melbourne with a rental of between $350 and $400 per week.  She has been told, in a letter from a leasing consultant annexed to her affidavit, that it is unlikely that she will secure a rental property because she is not employed and has no savings, that the sum of $2000 ordered to be paid by the father is not sufficient to cover a bond and one month’s rent in advance, which is a standard requirement. 

16. I accept that the mother has made every possible effort to find accommodation suitable to her in Melbourne in order to comply with the orders of 26 August 2016 and that she has been unable to find suitable leased accommodation for herself and the child. 

17. The father proposed that the mother should look for shared accommodation in Melbourne.  Annexed to his affidavit were a number of advertisements from the internet for share accommodation.  The father proposed that the mother and the child should live in one bedroom in a house shared with strangers;  a house where she would have no control over who else lived with her. 

18. Some of the advertisements indicated that students, backpackers and retirees would be welcome; all indicated that children would be considered.  Counsel for the father submitted that share accommodation would be a temporary solution and would allow the mother to look for more permanent and, I assume, more suitable, accommodation.  The father did not propose that he, being employed and having funds available to do so, would rent a flat for the mother and the child to live in or that he would assist her to pay the rent. 

19. The decision before the Court is a parenting decision and is governed by the provisions of Part VII of the Family Law Act 1975 (Cth) and particularly by the provisions of s 60CC. the child’s best interests are the paramount consideration. There is no doubt that a decision to require the mother to return the child to Melbourne would be prompted by the primary consideration of the benefit to the child of having a meaningful relationship with her father. Equally, there is no doubt that if the child remains in Sydney, having regard to her age, it will not be possible for that relationship to be maintained, in the way it could be maintained, if the father could spend time with her on a number of occasions each week.

20. I am conscious of the recommendations of the family consultant, in the report of the Child Dispute Conference dated 27 July 2016, that optimally, the child’s age and stage of development requires frequent and regular time with each parent.  I am also conscious of the observation of the family consultant that the child appeared to have a warm and affectionate relationship with both of her parents. 

21. However, these are not the only considerations.  The Court is required to consider the likely effect on the child of a change in her current circumstances, the practical difficulties of implementing any proposed orders and the capacity of the parents to provide for the child’s needs.

22. In most cases in the Family Court of Australia which involve the welfare of children, the Court is concerned with their emotional and psychological wellbeing.  In most cases, the parents can each provide a safe, secure and comfortable home for the children.  That is not the case here.  The situation is not optimal.  the child has a warm and affectionate relationship with both of her parents.  No doubt it would be preferable if she could spend time with her father frequently.  To that end, the mother has suggested to the father that he could move to Sydney.  He does not wish to do so. 

23. The father deposed to having time with the child in accordance with the orders of the Senior Registrar, which he described as good, quality time.  the child was happy to see him and her paternal grandparents. 

24. The change to the child’s current circumstances, which is implicit in the father’s application, would result in her leaving a place where she and her mother have a secure home and moving to a place where she would have temporary, share accommodation with strangers. 

25. I accept that the frequency of the child’s time with her father ,if she remains in Sydney, would necessarily be less than optimal and less than would be possible if the child moved to Melbourne. 

26. To some extent, the frequency of the time that the child spends with her father is up to the father.  Counsel for the father told the Court that the father could only fund one trip between Melbourne and Sydney each month, so that he would see the child monthly.  Counsel also told the Court that the father would not be able to avail himself of the time on Wednesday afternoon which is included in the orders of the Senior Registrar because he would be working. 

27. Neither parent has the capacity to provide, in Melbourne, for the child’s basic physical need to be securely and safely housed.  The father, perhaps, has the capacity to provide such accommodation, but he has not chosen to do so.  The accommodation that the father proposes for the mother and the child in Melbourne is not appropriate for the child’s needs. She has suitable accommodation in Sydney. 

28. Although it will be difficult and financially taxing, the child can continue to spend time with the father fortnightly.  That time, although not optimal, will be the best that can be provided in the circumstances. 

29. What order, then, should be made for the child to spend time with her father?  The mother proposes that she travel with the child to Melbourne once each month.  She proposes that the father pay her airfares but she will pay for her own accommodation.  She then proposes that the child spend time with the father on Friday afternoon, all day Saturday and Sunday morning.  After six such occasions, she proposes that the father’s time be extended overnight on Saturday.  The father may not be able to finish work early enough on Friday afternoon to spend that time with the child, but the mother is prepared to make it available. 

30. She proposes that the father travel to Sydney once each month to have similar time.  On occasions when the father travels to Sydney, the present orders require the father to collect the child from Suburb D.  I accept that makes things difficult for the father, and his weekends would be made easier if the mother delivered the child to him in Sydney, either in the central business district or at a place closer to the airport nominated by the father and collected her from that place on Sunday. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 November 2016.

Associate: 

Date:  25/11/2016