Wheatley and Caldwell

Case [2017] FCCA 148

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHEATLEY & CALDWELL [2017] FCCA 148
Catchwords:
FAMILY LAW – Parenting – interim – children aged five and two years old – five year old due to start prep in 2017 – mother and children moving from (omitted) to (omitted) – whether they should be required to return – whether five year old should attend school at (omitted).
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:
B and B, Re: Family Law Reform Act 1995 (1997) 140 FLR 11; (1997) 21 Fam LR 676; (1997) FLC 92-755
D v SV (2003) 175 FLR 25; (2003) 30 Fam LR 91; (2003) FLC 93-137; [2003] FamCA 280
Muldoon v Carlyle (2012) FLC 93-513; [2012] FamCAFC 135
Applicant: MS WHEATLEY
Respondent: MR CALDWELL
File Number: MLC 9491 of 2016
Judgment of: Judge Riley
Hearing dates: 11 and 16 November 2016
7 December 2016
Date of last submission: 7 December 2016
Delivered at: Melbourne
Delivered on: 1 February 2017

REPRESENTATION

Counsel for the applicant: Ms S Renwick
Solicitors for the applicant: Aboriginal Family Violence Prevention and Legal Service
Counsel for the respondent: Mr Allen
Solicitors for the respondent: Macgregor Solicitors

ORDERS BY CONSENT:

  1. The matter be adjourned to 13 June 2017 at 10am for final hearing (with an estimated hearing time of two days).

ORDERS BY CONSENT UNTIL FURTHER ORDER:

  1. The father and the mother have equal shared parental responsibility for X (“X”) born on (omitted) 2011 and Y born on (omitted) 2014 (“Y”).

  2. X and Y live with their mother.

ORDERS BY THE COURT UNTIL FURTHER ORDER:

  1. The mother, X and Y be permitted to live in the (omitted) area.

  2. X attend (omitted) Primary School.

ORDERS BY CONSENT:

  1. X and Y spend time with their father from 4:30pm on 11 November 2016 until 4pm on 13 November 2016, with the father to collect X and Y from the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, at the commencement of their time with him and return them to their maternal grandmother’s home at the conclusion of their time with him.

ORDERS BY CONSENT UNTIL FURTHER ORDER:

  1. Commencing on 26 November 2016, X and Y spend time with their father:

    (a)from 9am on Saturday until 5pm on Sunday and each alternate weekend thereafter;

    (b)from 3pm until 7pm on Thursday in the week following the weekend when they are with their father; and

    (c)as otherwise agreed between the parents in writing.

ORDERS BY CONSENT:

  1. X and Y live with and communicate with their father:

    (a)from 5pm on Friday 9 December 2016 to 5pm on Sunday 11 December 2016;

    (b)from 12pm on Christmas Day 2016 to 5pm on Sunday 1 January 2017; and

    (c)from 10am on Monday 16 January 2017 to 10am on Thursday 19 January 2017;

    (d)from 5pm on 8 April 2017 to 5pm on 15 April 2017;

    (e)from 3:30pm to 7pm on X’s birthday, (omitted) 2017; and

    (f)until further order, by telephone or internet based communication, such as Skype, or FaceTime at least three times per week for up to 30 minutes per communication.

ORDERS BY THE COURT:

  1. X and Y live with and communicate with their father:

    (a)from 5pm on Friday 16 December 2016 to 5pm on Sunday 18 December 2016;

    (b)from 10am on Monday 9 January 2017 to 10am on Thursday 12 January 2017;

    (c)from 10am on Monday 23 January 2017 to 10am on Thursday 26 January 2017;

    (d)until further order, commencing on 3 February 2017 each fortnight from 3:30pm on Friday to, in the case of X, 8:45am, and, in the case of Y, 8:30am, on the following Monday, with Y being returned to her mother and X being delivered to school, save that if the Monday is a public holiday or a non-school day X and Y’s time with their father conclude at 5pm;

    (e)from 1pm to 5pm on Father’s Day; and

    (f)at other times as mutually agreed between the mother and father.

ORDERS BY THE COURT UNTIL FURTHER ORDER:

  1. Changeover for X occur at school at school times and otherwise changeover for X and Y occur at the maternal grandmother’s home.

ORDERS BY CONSENT UNTIL FURTHER ORDER:

  1. The mother and the father communicate via a parenting app regarding sleep patterns and toilet training for Y, and for X and Y any information that may be important to their welfare and development.

  2. The father and the mother not enrol X or Y in any activity without the consent of the other parent.

  3. If a parent enrols X or Y into an organised activity pursuant to order 12 hereof that parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity.

  4. In the event that either X or Y requires medical care or becomes seriously ill or injured whilst in the care of either parent, that parent notify the other parent forthwith of the circumstances and treating health provider, and both parents be at liberty to be in attendance at such treating facility.

  5. The mother and the father be at liberty to provide a copy of these orders to the manager or principal of any childcare centre or school attended by X and Y as required.

  6. The father and the mother advise the other within 24 hours of any change to their mobile telephone numbers.

  7. The father be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of X and Y or either of them, and from permitting any other person to do so.

  8. The mother be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of X and Y or either of them, and from permitting any other person to do so.

ORDERS BY CONSENT:

  1. Each parent:

    (a)attend the Parenting Orders Program at CatholicCare in (omitted) (“the Program”) for assessment and family counselling;

    (b)follow the recommendations of the Program administrator; and

    (c)complete all aspects of the Program required by the Program administrator.

  2. On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report or s.11F memorandum relating to the mother, the father, X and Y, or any of them.

  3. Within 14 days of receipt, each parent file and serve an affidavit exhibiting that parent’s Certificate of Engagement with the Program.

ORDERS BY THE COURT:

  1. The father’s initiating application filed on 8 October 2016 be deemed to be a response.

  2. On or before 2 December 2016, the applicant file and serve a financial statement.

  3. On or before 2 December 2016, the respondent file and serve a financial statement.

  4. The costs of today be reserved.

ORDERS BY CONSENT UNTIL FURTHER ORDER:

  1. The mother and the father be at liberty to attend any school or kindergarten events and functions that parents with a child at the relevant school or kindergarten would normally be expected to attend, including but not limited to X’s first day of school and other events involving prep children.

  2. The father and the mother ensure the school and kindergarten X and Y attend are authorised to forward to each parent copies of any school reports or notices that parents would normally be expected to receive.

  3. Each party be at liberty to provide a copy of this order to X and Y’s school and kindergarten.

ORDERS BY CONSENT:

  1. Pursuant to s.62G(2) of the Family Law Act 1975, the mother, the father, X and Y attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court by 35 days before the final hearing date.

  2. The family report deal with the following matters:

    (a)any views expressed by X and Y and any matters (such as X’s and Y’s maturity or level of understanding) that would affect the weight that the court should place on those views;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the family consultant considers important to the welfare of X and Y.

  3. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

  4. Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

    (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

    (b)any intervention or restraining orders currently in force.

  5. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

  6. If either parent requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven days notice in writing.

  7. Upon the family report being provided to the court, the court provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

  8. Unless a party objects in writing within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of X and Y:

    (a)a children’s court;

    (b)a child protection authority;

    (c)a state or territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

  9. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

  10. The applicant file and serve any further affidavit at least 28 days prior to final hearing.

  11. The respondent file and serve any further affidavit at least 14 days prior to final hearing.

  12. By 4pm two working days prior to final hearing, each party file and serve an outline of case document including the following:

    (a)a list of the documents to be relied upon;

    (b)a brief chronology;

    (c)an outline of contentions with respect to:

    (i)each of the considerations relevant to determining the best interests of X and Y (s.60CC factors);

    (ii)whether the presumption of equal shared parental responsibility applies (s.61DA);

    (iii)the considerations relevant to equal time and substantial and significant time (s.65DAA); and

    (iv)other matters relevant to the decision (such as ss.60CG, 61F, 65DAB, 65DAC, etc); and

    (d)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

    (e)the main contentions on disputes as to:

    (i)what items are to be included in the pool; and

    (ii)the value of each asset in the pool;

    (f)the contributions claimed or contended for;

    (g)the s.75(2) factors relied upon;

    (h)contentions on any disputed matters;

    (i)the percentage adjustment contended for;

    (j)(if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and

    (k)a statement of the precise orders sought.

ORDER BY THE COURT:

  1. Each party have liberty to apply.

ORDERS BY CONSENT:

  1. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

  2. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)The purpose of orders 19 to 21 is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of their children to it, is having long term effects on their children’s emotional well-being and development.

(B)The father consents to order 17 without admissions as to the necessity for it.

(C)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(D)At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

(E)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

(F)In the event a party to these proceedings objects to the release of the family report pursuant to order 36 herein, he or she shall write to the chambers of Judge Riley seeking that the matter be listed on short notice for his or her objection to be heard.

(G)In the event of non compliance by any party with the orders, directions, rules or regulations applying in this court relating to:

(a)the filing of documents; or

(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the final hearing may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

(H)To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9491 of 2016

MS WHEATLEY

Applicant

And

MR CALDWELL

Respondent

REASONS FOR JUDGMENT

Introduction 

  1. This is an application for interim parenting orders in respect of X born on (omitted) 2011 (“X”) and Y born on (omitted) 2014 (“Y”).  X is five years old and Y is two years old.  Orders were pronounced on 7 December 2016, some by consent and some by the court.  The court provided brief, oral reasons for the orders by the court on 7 December 2016, on the basis that more full and formal reasons would be provided after Christmas if required.  These are those reasons, which incorporate the brief oral reasons provided on 7 December 2016.

  2. It was necessary to make the orders without waiting until the court could deliver full and formal reasons because arrangements needed to be made for X to start prep in 2017, and there was a dispute about which school he would attend among other issues.

  3. As this matter is at the interim stage, the court is not able to make findings on disputed questions of fact, but must do its best based on the uncontentious evidence.

  4. The parents were both born in 1975.  They commenced a relationship in 2006 and married in 2008.  They separated on 28 May 2016[1].  Initially, the parents both remained in the home they rented in (omitted), living separately under one roof.  However, the father then moved to nearby premises.  After he moved out, X and Y remained living primarily with their mother but spent time with their father.

    [1] Mother’s initiating application page 4, father’s initiating application page 6.

  5. Each parent seems to accept that the other is a reasonably good parent but that they have communication difficulties.

  6. X and Y are of Aboriginal descent through their mother, whose family is from (omitted).

  7. The husband is a (occupation omitted) at (employer omitted).  The mother initially worked as an (occupation omitted), but later had a number of part time jobs, including working as a (occupation omitted) at (employer omitted) and later as a (occupation omitted) for children attending (omitted). 

  8. The mother claimed that the father was controlling and intimidating and drank alcohol to excess.  The mother claimed that the father forced her, by threatening to leave the relationship, to give up her good job as an (occupation omitted) and concentrate more on him.  The father said that he and the mother agreed that she would work less.  He denied drinking alcohol to excess.

  9. The mother said and the father agreed that he attended a psychiatrist in 2013 and took medication.  The father said that he was suffering from stress caused by financial difficulties.

  10. The mother claimed on page 3 of her affidavit sworn on 28 October 2016 that:

    We have never had discussion about schools and the father now demands the children to go to his (omitted) for his convenience. 

  11. However, the father provided to the court an enrolment form for X for (omitted) Primary School.  It indicated that it was signed by the mother on 13 May 2016, about two weeks prior to separation, and signed by the father on 16 August 2016.  The mother did not dispute that she had signed the enrolment form.

  12. The mother applied for an intervention order on 20 June 2016.  She alleged in the application for the intervention order that the father had been domineering throughout the relationship, had tried to discuss his time with X and Y in front of them, and had taken X and Y from her, against her wishes, when she was at the school premises to collect the children for whom she is a (occupation omitted).  The mother alleged that the father was agitated when he did this, and the incident occurred in front of X and Y and other children.  The father returned X and Y to their mother later that evening. 

  13. An interim intervention order was made on 20 June 2016, which included the mother, X and Y as affected family members.  The father was not at court when that order was made. A further interim intervention order was made on 14 July 2016, which again included the mother, X and Y as affected family members.  The father was in attendance at court when the second interim order was made. The intervention order application is listed for final hearing on 20 March 2017.  The father said that there has never been any violence whatsoever between him and the mother and that he intends to defend the intervention order proceedings.

  14. The mother routinely attended (omitted) Primary School in her role as a (occupation omitted) for children who were students at that school.  The mother received a letter dated 25 July 2016 from the principal of the school in the following terms:

    Ms Wheatley
     (omitted)

    (omitted),

    25 July 2016

    Dear Ms Wheatley,

    As X is due to commence at (omitted) School as a Prep student in 2017, I am writing to you because I wish to establish some clear processes with respect to your attendance upon the school premises.

    I have a duty of care in relation to all student and staff at the school, which means that I must take steps to ensure that the school is a safe and positive environment for you, your children, for other students and staff.

    I am aware of the Interim Intervention Order dated 14 July 2016 which prohibits Mr Caldwell from approaching or remaining within 5 metres of your or your children X and Y.

    In order to discharge my duty of care to the entire school community and also ensure that Mr Caldwell is able to carry out his employment duties whilst complying with the terms of the Interim Intervention Order, I am implementing the following protocols with respect to your attendance on the school grounds.

    Until further notice, I am directing you to refrain from attending the oval area and asphalt areas as these are areas where Mr Caldwell conducts his (omitted) (please refer to attached map identifying these areas). This includes the play equipment area. The nearest public playground is located at: (omitted) Park ((omitted) entry).

    I want to stress that these measure (sic) are not punitive in nature and are designed to ensure that I manage my responsibilities to all relevant parties.

    Please contact me if you have any questions or wish to discuss other supports that the school can offer you.

    Please contact me if you have any questions.

    Kindly

    …
    Principal
    (omitted) School
    T: (omitted)

    …

  1. The principal sent the mother another letter dated 4 August 2016 in the following terms:

    Ms Wheatley
     (omitted)

    (omitted),

    4 August 2016

    Dear Ms Wheatley,

    On the 25th of July I wrote to you because I wished to establish some clear processes with respect to your attendance upon the school premises.

    As previously stated, I have a duty of care in relation to all students and staff at the school, which means that I must take steps to ensure that the school is a safe and positive environment for you, your children, for other students and for staff.

    I am aware of the Interim Intervention Order dated 14 July 2016 which prohibits Mr Caldwell from approaching or remaining within 5 metres of you or your children X and Y.

    In order to discharge my duty of care to the entire school community and also ensure that Mr Caldwell is able to carry out his employment duties whilst complying with the terms of the Interim Intervention Order, I am implemented (sic) the following protocols with respect to your attendance on the school grounds. I directed you to refrain from attending the oval area and asphalt areas as these are areas where Mr Caldwell conducts his (omitted). This includes the play equipment areas. It also includes the portico off (omitted). Ms Wheatley, the entire areas encompassing all ground areas from (omitted), (omitted) and the boundary with the City of (omitted) is off limits to you (refer to map provided). The only area you are able to access is the front of the school in front of the main office area. (emphasis in original)

    This afternoon you were seen on the grounds and this impacted on Mr Caldwell who was engaged in a (omitted). You need to adhere to the advice provided above.

    Please contact me if you have any questions.

    Kindly,

    …
    Principal
    (omitted) School
    T: (omitted)

    …

  2. The principal sent the mother another letter dated 3 October 2016 in the following terms:

    Ms Wheatley
     (omitted)

    (omitted),

    3 October 2016

    Dear Ms Wheatley,

    On Thursday, 6th of October, a Parent Information session is being conducted in (omitted) for families of children commencing Prep in 2017. The session, as you will be aware, is being conducted by the renowned Ms K. As a new parent to the school, I hope you will attend the session.

    On Wednesday the 12th of October at 2.00pm the first Prep Transition session for the children will commence in (omitted). There are 5 sessions. At the same time a Parent Transition program will be conducted in (omitted) for parents. The parent sessions are particularly relevant to new families.

    I wish to establish some clear processes with respect to your attendance upon the school premises for the abovementioned sessions. As stated in the previous 2 letters, I am aware of the Interim Intervention Order dated 14 July 2016 which prohibits Mr Caldwell from approaching or remaining within 5 metres of you or your children X and Y.

    In order to discharge my duty of care to the entire school community and also ensure that Mr Caldwell is able to carry out his employment duties whilst complying with the terms of the Interim Intervention Order, I am implementing the following protocols with respect to your attendance on the school grounds as part of the Prep Transition Program (including Parent Information session):

    §Parent Information session – you will be greeted at the door of (omitted) and escorted to a designated area in (omitted) where you will be seated for the session. Mr Caldwell will also be seated in a designated area that will ensure the Intervention Order is not breached.

    §Prep Transition sessions (for X) – you will be required to bring X to the main office and he will be taken by a staff member to the (omitted). He will be collected from the Main Office after each session has concluded.

    §Prep Transition sessions (for parents) – you will be escorted from the main office to (omitted) where the sessions will be conducted and then escorted back to the main office where X will be collected. The sessions for the parents and the children will conclude at approximately the same time.

    As previously stated, I have a duty of care in relation to all students and staff at the school, which means that I must take steps to ensure that the school is a safe and positive environment for you, your children, for other students and for staff.

    Please contact me if you have any questions.

    Kindly,

    …
    Principal
    (omitted) School
    T: (omitted)

    …

  3. By letter dated 5 October 2016, the mother told the father that she intended to move with X and Y to (omitted), where she has family.  She said the move would be as of 8 October 2016 and gave the address she and the children would be moving to.  It is in the same street as her mother, the maternal grandmother. (omitted) is 13 kilometres north-west of the Melbourne CBD.  (omitted) is six kilometres south-east of the Melbourne CBD.  The parents agreed that, if X and Y lived with their mother in (omitted), it would not be practicable for them to attend (omitted) Primary School.  The mother’s letter was as follows:

    MS WHEATLEY

    (omitted)
    (omitted)

    5th October 2016

    WITHOUT PREJUDICE SAVE FOR COSTS

    RE: New address

    Mr Caldwell
    …

    (omitted)

    Dear Mr Caldwell,

    I am writing to advise that as of 08/10/2016, X, Y and I will be moving to … [address omitted] (omitted).

    As of today we will need to implement some changes to the care arrangements for the children as follows;

    X and Y will spend time with you on Saturday 9am till Sunday 5pm each alternate week and from 3pm till 7pm Thursday in the following alternate week.

    As of this date changeovers for the children will take place at my mother’s house, at [address omitted] (omitted). I would ask you to drop the children off here at these arranged times and you may collect them from here. The children will no longer be attending childcare.

    I have had to consider the best interests of the children in regard to what the most suitable arrangements are for them and a clear and regular routine is an important part of this. Unfortunately you consistently demonstrate that you have no regard for the care arrangements previously agreed to. It is of great concern to me that you do not understand the needs of the children, particularly at such a young age or the adverse effect your actions and behaviour has on them. Added to this the conflict you continue to create between us makes it impossible to have any kind of co-operative parenting and it also has a serious effect on X and Y.

    I have attached an agreement for you to sign and when you have signed and returned this we can commence this routine.

    Regards,

    Ms Wheatley

  4. The mother filed an initiating application on 3 October 2016.  She was not legally represented at that time and did not serve the father.  The father filed his own initiating application on 10 October 2016.  He was, and is, legally represented and served the mother.  The registry did not notice the overlap, and accepted the father’s initiating application as it was.

  5. The mother sought orders on an interim and final basis including that:

    a)she have sole parental responsibility for X and Y;

    b)X and Y live with her;

    c)X and Y spend time with their father:

    i)from 9am on Saturday to 5pm on Sunday in alternate weeks;

    ii)from 3pm until 7pm on Thursday in alternate weeks; and

    iii)as otherwise agreed in writing; and

    d)changeover occur at the maternal grandmother’s home in (omitted).

  6. The father sought orders on an interim basis including that:

    a)he spend time with X and Y:

    i)from 3.30pm on Friday to 9.30am on Monday each alternate week during school terms;

    ii)from 3.30pm each Tuesday to 6.30pm each Wednesday during school terms;

    iii)half of the school holidays; and

    iv)as otherwise agreed in writing;

    b)X and Y attend (omitted) Primary School; and

    c)the mother be restrained from moving the residence of X and Y more than five kilometres from their current address without the consent in writing of the father.

  7. The father sought orders on a final basis including that:

    a)the parents have equal shared responsibility for X and Y;

    b)X and Y live with their parents in a shared care arrangement;

    c)X and Y attend (omitted) Primary School.

  8. On 21 October 2016, the mother, and, on 22 October 2016, the father, signed an agreement, that the mother had drafted and provided to the father with her letter dated 5 October 2016. The agreement provided that X and Y would:

    a)live with their mother; and

    b)spend time with their father:

    i)from 9am Saturday until 5pm Sunday each alternate week; and

    ii)from 3pm until 7pm each alternate Thursday.

  9. The father added in handwriting to the agreement that he had signed it:

    in the short term pending court orders.

  10. The matter came before the court for the first time on 9 November 2016 in the duty list.  By that time, the mother had moved to (omitted), to a house in the same street as her mother.  On 9 November 2016, orders were made for the proceeding commenced by the mother to be consolidated with the proceeding commenced by the father, and for s.11F counselling. 

  11. Ms E provided an oral report to the court at 2.15pm on 11 November 2016.  Ms E reported as follows:

    Your Honour, the current dispute before the court relates to the parenting arrangements for five year old [X] and two year old Y. In relation to the parents, they commenced a relationship in 2006, married in 2008 and separated in or around May 2016 under seemingly mutual agreement as their relationship had grown apart. They had attempted to maintain their relationship previously through marital counselling, however, this had been unsuccessful and they ultimately decided to separate. Initially this occurred under the same roof until the father vacated their rental property soon after separation.

    Their initial goal was … for an amicable parenting relationship and arrangements for the children however their conflict between them has escalated post separation with both accusing the other of attempting to control their discussions or agreements between them. Due to the escalation of their conflict and increasing concern in relation to the father’s behaviour by the mother, she applied for an intervention order in June 2016 after an alleged verbal argument between them whereby she felt that her safety was compromised. Initially she stated that the intervention order application was on behalf of herself only, however, she claimed that the children had been included due to their presence during the parental argument.

    The father is contesting this intervention order and there is a contested hearing in February 2017, your Honour. At present there appears limited grounds for the children to remain on this order. The presence of the intervention order appears to have impacted significantly upon the parenting arrangements and their capacity to communicate about the children appears to be viewed differently between the parents given the restrictions of the intervention order. The father claimed at interview … to have been informed that he was not to communicate verbally with the mother under any circumstances and he has adhered to this for fear of breaching the intervention order.

    However, the mother believed that they were able to discuss the children’s needs and parenting arrangements and she has found the father’s refusal to do so very difficult. This has also impacted upon X’s capacity to make telephone calls to his father due to the lack of understanding of the parents of the intervention order and lack of parenting orders in place to date. The presence of the intervention order also appears to have caused issues in relation to (omitted) Primary School who have become involved in the [matter] where the father is currently employed as a (occupation omitted). The school appears to have adopted the standpoint of the mother being unable to attend the school grounds to ensure that the father does not breach the conditions of the intervention order given his employment and need to move around the school freely.

    This previously impacted upon the mother’s former employment as a (occupation omitted) as she was (occupation omitted) for four children who attended the school and she was unable to attend the school grounds to collect them. There is further contention in relation to the father’s application for X to attend (omitted) Primary School in 2017 given that the mother reported receiving a subsequent letter from the school that she would only be allowed to attend the school grounds with an escort. Your Honour, the children also have been identified as having Aboriginal heritage, which is of importance to note to the court, and both parents reported a desire for importance to be placed on their cultural background in this respect but there’s no dispute in regards to that between the parents.

    Your Honour, during the assessment there was no agreement reached between the parents and there appears to be three main issues that remain in dispute, this being the time that the children spend with their father, the mother’s capacity to relocate away from the (omitted) or (omitted) area and … where X should commence primary school in 2017. In relation to risk, the mother has raised issues associated with … with family violence by the father primarily in relation to verbal abuse, denigration, manipulation and controlling behaviour. This behaviour has reportedly escalated post separation to the point where the mother has become anxious about the father and has sought an intervention order to prevent any further family violence from occurring.

    The purpose of the order, however, was not to prevent the father from having a relationship with the children or from restricting the parenting arrangements. However, the parents varying interpretation of this order appears to have created additional conflict for them. The mother reported that the father is attempting to control the parenting arrangements in his favour rather than looking at the best interests of the children developmentally. She does not believe that their youngest child Y, who is two years old, … is old enough to withstand an equal shared care arrangement at present and has said she believed that the children would fare better with one secure base, remaining in her primary care and spending significant and meaningful time with their father.

    However, she has found negotiating with him in this regard to be difficult. Despite this, she raised no issue with his parenting and she views him as a good father. In this regard, there has been no risk issues identified with the children in their father’s care. At interview, however, the father denied being controlling throughout their relationship or post separation or from committing any form of verbal abuse or denigration of the mother. … [In] this regard, he denied the existence of family violence within their relationship. Instead post separation he has found the mother to be inflexible and unwilling to negotiate a more equal shared parenting arrangement which he believes to be in the children’s best interest given his extensive parenting role within the marriage.

    In this regard he has found the mother to be the controlling party post separation. The father further raised concern about the mother having unilaterally relocated from (omitted) to (omitted) in October 2016 with the children and … [in] doing so, removing the children from their day care arrangements. This … has had significant implications for X’s schooling in 2017 which is the major contention between the parents at this point in time. In regards to the parents, at present there is very limited co-parental relationship between them due to their differing perceptions of the restrictions of the interim intervention order.

    The father is under the impression, as stated, that he is to have absolutely no verbal communication between himself and the mother whereas the mother has found … his lack of willingness to communicate about the children’s parenting needs difficult and counterproductive to their shared parenting. This includes limited written communication by the father or participation in the communication book filled out by the mother at present. This appears to have further fractured their co-parental relationship and contributed to an escalation of the conflict between them and their inability to negotiate or compromise around their children’s needs.

    As such, it is recommended at present, your Honour, that … consideration is made towards the parents attending upon a parenting orders program at CatholicCare in (omitted) to attempt to assist the parents with their co-parenting before their issues of, and belief systems around each other, become more entrenched. The primary issue at present, your Honour, before the court is whether the mother, who relocated in around October 2016, should be able to remain living in (omitted) with the children or be required to return back to the (omitted) area so that X can attend (omitted) Primary School where the father is currently employed and where X was enrolled to commence in 2017 or whether the mother is able to remain living in (omitted) to be closer to her family supports and for X to attend (omitted) Primary School or another local school.

    Your Honour, the mother relocated admittedly without informing the father, given the intervention order in place, to be closer to her family supports. … [She] currently lives in the same street as her mother and one of the … maternal uncles. This was one of the main driving factors for her moving along with the restrictions being placed on her by (omitted) Primary School which significantly impacted the viability of her former employment as a (occupation omitted) to children attending the school. She reported receiving, as stated previously, a letter informing her that she was unable to attend the school grounds to prevent the father from breaching the intervention order which created difficulties for her employment and she believed this to be unsustainable for the children in her care.

    She further reported receiving another letter in regards to X’s enrolment which … significantly concerns her. In this regard, she’s concerned that she will be unable to be involved in X’s schooling, she’s concerned she won’t be able to attend assemblies, that she won’t be able to attend any school or class-based activities, that she won’t be able to attend any sporting activities given the school’s restrictions placed on her at present. At interview the father reported that he was unaware of that restriction, he was aware of the restriction in regards to the children she was (occupation omitted) but unaware of the subsequent letter reportedly sent … to the mother by the school.

    Furthermore, the mother’s capacity to transport X to (omitted) Primary School is significantly compromised by her lack of transportation. She does not have a car as the family only had one car … towards the end of their marriage which the father has retained. In this regard she would be required to travel, if she remains in (omitted), by public transport which includes a bus, two trains and walking X to school which appears onerous and untenable for X and, indeed, Y if she’s required to also attend. … [The] father agreed at interview … that initially he did not want X to attend (omitted) Primary School during their relationship and that he only acquiesced towards the end of their marriage.

    He initially believed that X would do better at a school where he was not linked with a parent being a (occupation omitted). However, it is the father’s assertion now that X would fare better at (omitted) Primary School due to his connectedness to the school community and due to X attending day care next door to the school and having friends who attend the school. The issue about where X attends school, your Honour, appears to be multidimensional and is impacted by the mother’s relocation along with the intervention order and the school’s alleged support of the father to the mother’s detriment.

    In this respect, whilst there is merit in the father’s view that X has been part of the … wider community including the school, there is concern about the potential for the parental dispute to impact on X’s school enrolment should be attend (omitted) Primary School. It would not appear appropriate for the mother to be excluded from the school community, particularly if she was to remain their … primary carer. X’s awareness of this fact will likely become more pronounced as he develops and there is concern that he may feel ostracised or singled out given his parents’ conflict and involvement of the school.

    Furthermore, there is concern in relation to the school’s involvement should the parental conflict escalate and there’s concern that they will support the father over the mother. However, in the event that the court does find that it was inappropriate for the mother to remain living in (omitted) and that she’s required to return to the (omitted) area to be closer to the father, it may still be inappropriate for X to attend (omitted) Primary School given the reasons just explained due to the unknown impact of the parental conflict on X’s schooling and the father being employed by the (employer omitted).

    This will assist to protect both the father’s employment and ensure X’s schooling is … as free from the parental conflict as possible. The mother currently lives in the same street as the [maternal] grandmother which she believes is an additional support to both her and the children and, in this respect, as their primary carer, the mother’s support needs will also need to be considered by the court. Whilst the father is seeking an equal shared care arrangement, this will only be possible if they were to live in closer proximity. Whilst this may be an arrangement the parents may like to consider in future as the children develop, at present an equal parenting arrangement appears inappropriate given Y’s very young age at two and a lack of co-parenting or effective communication between the parents at present.

    Your Honour, in relation to the children, they were not formally interviewed on this occasion given their young ages and the issues in dispute not seemingly to be directly related to the parents’ care or relationship with the children. Furthermore, five-year-old X presented as quiet and reserved and appeared unlikely to fare well with formal interviewing at present. Instead, they were observed in the context of the court playroom and together with each of their respective parents. In this regard, there appeared no issues with either parent’s relationship or interaction with the children and they appear to have a positive relationship with each parent. The children each presented as delightful young children who appeared to be appropriately cared for at present.

    Your Honour, in this regard, in regards to future directions, it is recommended that the parents maintain joint parental responsibility in spite of their lack of communication at present, and there’s hope that that communication improves; that the children remain living on an interim basis with their mother and that they spend significant time with their father. In this regards, it is recommended that they spend time with their father after school Friday until Sunday evening each alternate weekend, including time in the intervening week, which is also recommended, dependent on the parents’ capacity to transport the children and depending where they live. In the event the father continues to seek a more equal shared care arrangement, then the court will benefit from a family report in future.

    In relation to the children’s schooling, in the event the mother is able to remain living in (omitted), then it is recommended that X attends (omitted) Primary School or another local school agreed by the parents. In the event that the mother is required to move back to the (omitted) area, then it is recommended that they agree upon an alternate, … local school for X and then, in turn, Y given that there is concern in relation to the impact of the parental dispute on X’s involvement with the school. The parents will benefit, as stated previously, to attending a Parenting Orders Program at CatholicCare in (omitted) or a service in their local area that runs a post separation parenting program and conjoint counselling for the parents. (emphasis added)

  1. Following Ms E’s report, the parties were given an opportunity to ask brief questions to clarify any aspects of Ms E’s evidence.  Ms E said in response to questions on behalf of the father that:

    a)if the father could manage to get X to school on Monday morning, there would not be a problem with X and Y’s time with their father being extended until then in alternate weeks;

    b)until X started school, he and Y could spend time with their father from after school on Friday until 4pm on Saturday in the other week; and

    c)over the Christmas holidays, X and Y spending a block of one week with their father, plus some other substantial and significant time, would be appropriate.

  2. The mother was unrepresented on 11 November 2016.  It was not possible to conclude the interim application on that day, partly because the father’s counsel had a personal commitment at 5pm.  Consequently, the matter was adjourned for further hearing on 16 November 2016.  Orders were made on 11 November 2016 as follows:

    THE COURT ORDERS THAT:

    1.The matter be adjourned to 16 November 2016 at 2:15pm for interim hearing.

    THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

    2.X born on (omitted) 2011 (“X”) and Y born on (omitted) 2014 (“Y”) live with their mother.

    THE COURT ORDERS BY CONSENT THAT:

    3.X and Y spend time with their father from 4:30pm on 11 November 2016 until 4pm on 13 November 2016, with the father to collect X and Y from the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne, at the commencement of their time with him and return them to their maternal grandmother’s home at the conclusion of their time with him.

    THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

    4.Commencing on 26 November 2016, X and Y spend time with their father:

    a.from 9am on Saturday until 5pm on Sunday and each alternate weekend thereafter;

    b.from 3pm until 7pm on Thursday in the week following the weekend when they are with their father; and

    c.as otherwise agreed between the parents in writing.

    THE COURT ORDERS UNTIL FURTHER ORDER THAT:

    5.Changeover for X occur at school at school times and otherwise changeover for X and Y occur at the maternal grandmother’s home.

    THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

    6.The mother and the father communicate via a parenting app regarding sleep patterns and toilet training for Y, and for X and Y any information that may be important to their welfare and development.

    7.The father and the mother not enrol X or Y in any activity without the consent of the other parent.

    8.If a parent enrols X or Y into an organised activity pursuant to order 7 hereof, that parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity.

    9.In the event that either X or Y requires medical care or becomes seriously ill or injured whilst in the care of either parent, that parent notify the other parent forthwith of the circumstances and treating health provider, and both parents be at liberty to be in attendance at such treating facility.

    10.The mother and the father be at liberty to provide a copy of these orders to the manager or principal of any childcare centre or school attended by X and Y as required.

    11.The father and the mother advise the other within 24 hours of any change to their mobile telephone numbers.

    12.The father be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of X and Y or either of them, and from permitting any other person to do so.

    13.The mother be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of X and Y or either of them, and from permitting any other person to do so.

    THE COURT ORDERS BY CONSENT THAT:

    14.    Each parent:

    a.attend the Parenting Orders Program at CatholicCare in (omitted) (“the Program”) for assessment and family counselling;

    b.     follow the recommendations of the Program administrator; and

    c.complete all aspects of the Program required by the Program administrator.

    15.On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report or s.11F memorandum relating to the mother, the father, X and Y, or any of them.

    16.Within 14 days of receipt, each parent file and serve an affidavit exhibiting that parent’s Certificate of Engagement with the Program.

    THE COURT ORDERS THAT:

    17.The father’s initiating application filed on 8 October 2016 be deemed to be a response.

    18.On or before 2 December 2016, the applicant file and serve a financial statement.

    19.On or before 2 December 2016, the respondent file and serve a financial statement.

    20.    The costs of today be reserved.

    THE COURT ORDERS BY CONSENT THAT:

    21.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

    AND THE COURT NOTES THAT:

    A. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

    B.The purpose of orders 14 to 16 is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of their children to it, is having long term effects on their children’s emotional well-being and development.

    C.The father consents to order [12] without admissions as to the necessity for it.

  3. By the time the matter returned to court on 16 November 2016 at 2.15pm, the mother had obtained legal representation.  Again, however, it was not possible to conclude the interim applications on that day.  The father explained to the court through his counsel that he had spoken to his (employer omitted) who had agreed to him starting work at 9.30am on alternate Mondays to permit him to have X and Y overnight on alternate Sundays. Orders were made on 16 November 2016 as follows:

    THE COURT ORDERS BY CONSENT THAT:

    1.The matter be adjourned to 7 December 2016 at 10am for further interim hearing.

    2.Until further order, the mother and the father have equal shared parental responsibility for X born on (omitted) 2011 (“X”) and Y born on (omitted) 2014.

    3.Commencing on 16 December 2016, during the 2016 long school term break, X and Y spend time with their father as follows:

    a.each fortnight from 4pm Friday to 4pm the following Monday, save that the father return X and Y to their mother at 4pm on 1 January 2017; and

    b.from 12pm on Christmas Day to 4pm on 1 January 2017.

  4. On 7 December 2016, orders were made substantially as follows[2]:

    [2] Typographical errors in the original version of these orders were corrected under r.16.05(2)(e) of the Federal Circuit Court Rules 2001

    THE COURT ORDERS BY CONSENT THAT:

    1.The matter be adjourned to 13 June 2017 at 10am for final hearing (with an estimated hearing time of two days).

    THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

    2.The father and the mother have equal shared parental responsibility for X (“X”) born on (omitted) 2011 and Y born on (omitted) 2014 (“Y”).

    3.X and Y live with their mother.

    THE COURT ORDERS BY CONSENT THAT:

    4.X and Y live with and communicate with their father:

    a.from 5pm on Friday 9 December 2016 to 5pm on Sunday 11 December 2016;

    b.from 12pm on Christmas Day 2016 to 5pm on Sunday 1 January 2017; and

    c.from 10am on Monday 16 January 2017 to 10am on Thursday 19 January 2017;

    d.from 5pm on 8 April 2017 to 5pm on 15 April 2017;

    e.from 3:30pm to 7pm on X’s birthday, (omitted) 2017; and

    f.until further order, by telephone or internet based communication, such as Skype, or FaceTime at least three times per week for up to 30 minutes per communication.

    THE COURT ORDERS THAT:

    5.X and Y live with and communicate with their father:

    a.from 5pm on Friday 16 December 2016 to 5pm on Sunday 18 December 2016;

    b.from 10am on Monday 9 January 2017 to 10am on Thursday 12 January 2017;

    c.from 10am on Monday 23 January 2017 to 10am on Thursday 26 January 2017;

    d.until further order, commencing on 3 February 2017 each fortnight from 3:30pm on Friday to, in the case of X, 8:45am, and, in the case of Y, 8:30am, on the following Monday, with Y being returned to her mother and X being delivered to school, save that if the Monday is a public holiday or a non-school day X and Y’s time with their father conclude at 5pm;

    e.from 1pm to 5pm on Father’s Day; and

    f.at other times as mutually agreed between the mother and father.

    THE COURT ORDERS BY CONSENT THAT:

    6. The mother and the father be at liberty to attend any school or kindergarten events and functions that parents with a child at the relevant school or kindergarten would normally be expected to attend, including but not limited to X’s first day of school and other events involving prep children.

    7.The father and the mother ensure the school and kindergarten X and Y attend are authorised to forward to each parent copies of any school reports or notices that parents would normally be expected to receive.

    8.Each party be at liberty to provide a copy of this order to X and Y’s school and kindergarten.

    THE COURT ORDERS UNTIL FURTHER ORDER THAT:

    9.The mother, X and Y be permitted to live in the (omitted) area.

    10.    X attend (omitted) Primary School.

    THE COURT ORDERS BY CONSENT THAT:

    11.Pursuant to s.62G(2) of the Family Law Act 1975, the mother, the father, X and Y attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court by 35 days before the final hearing date.

    12.    The family report deal with the following matters:

    a.any views expressed by X and Y and any matters (such as X’s and Y’s maturity or level of understanding) that would affect the weight that the court should place on those views;

    b.the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    c.any other matters that the family consultant considers important to the welfare of X and Y.

    13.The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

    14.Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

    a.all relevant applications, responses and affidavits filed by that parent in these proceedings; and

    b.any intervention or restraining orders currently in force.

    15.The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

    16.If either parent requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven days notice in writing.

    17.Upon the family report being provided to the court, the court provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

    18.Unless a party objects in writing within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of X and Y:

    a.      a children’s court;

    b.      a child protection authority;

    c.      a state or territory legal aid authority; and

    d.      a convener of any legal dispute resolution conference.

    19.Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

    20.The applicant file and serve any further affidavit at least 28 days prior to final hearing.

    21.The respondent file and serve any further affidavit at least 14 days prior to final hearing.

    22.By 4pm two working days prior to final hearing, each party file and serve an outline of case document including the following:

    a.      a list of the documents to be relied upon;

    b.      a brief chronology;

    c.      an outline of contentions with respect to:

    i.      each of the considerations relevant to determining the best interests of X and Y (s.60CC factors);

    ii.     whether the presumption of equal shared parental responsibility applies (s.61DA);

    iii.     the considerations relevant to equal time and substantial and significant time (s.65DAA); and

    iv.     other matters relevant to the decision (such as ss.60CG, 61F, 65DAB, 65DAC, etc); and

    d.a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

    e.the main contentions on disputes as to:

    i.      what items are to be included in the pool; and

    ii.     the value of each asset in the pool;

    f.       the contributions claimed or contended for;

    g.      the s.75(2) factors relied upon;

    h.      contentions on any disputed matters;

    i.       the percentage adjustment contended for;

    j.(if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and

    k.a statement of the precise orders sought.

    THE COURT ORDERS THAT:

    23.    Each party have liberty to apply.

    THE COURT ORDERS BY CONSENT THAT:

    24.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

    25.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

    AND THE COURT NOTES THAT:

    A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

    B.At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

    C.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

    D.In the event a party to these proceedings objects to the release of the family report pursuant to order 18 herein, he or she shall write to the chambers of Judge Riley seeking that the matter be listed on short notice for his or her objection to be heard.

    E.In the event of non compliance by any party with the orders, directions, rules or regulations applying in this court relating to:

    a. the filing of documents; or

    b.any other procedural issues,

    the application may be struck out, the proceedings may be directed to proceed undefended or the final hearing may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

    F.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

  5. Leaving aside the orders made by consent, the issues for the court to determine on an interim basis were:

    a)whether the mother was to be permitted to live with X and Y more than five kilometres from (omitted);

    b)which school X should attend in 2017; and

    c)whether X and Y should spend additional time with their father, beyond the time that the mother agreed to, and, if so, what time.

The parent’s proposals

  1. The mother proposed that she be permitted to live with X and Y in (omitted), that X attend (omitted) Primary School in 2017 and that X and Y spend no time with their father beyond the amount that she had agreed to.

  2. The father proposed that:

    a)the mother return to within five kilometres of (omitted) Primary School to live with X and Y;

    b)X attend (omitted) Primary School in 2017;

    c)X and Y spend time with him, beyond the consent orders, as follows:

    i)from 5pm on Friday 16 December 2016 until 5pm on Sunday 1 January 2017;

    ii)from 10am on Monday 9 January 2017 until 10am on Thursday 12 January 2017;

    iii)from 10am on Monday 23 January 2017 until 10am on Thursday 26 January 2017;

    iv)if they are living in (omitted):

    A)   from the commencement of first term in 2017, each fortnight from 3.30pm on Friday to 9am on Monday, and if the Monday is a non-school day, until 5pm on the Monday; and

    B)   from 3.30pm on Monday to 9am on Tuesday in the alternate week;

    v)if they are living in the (omitted) area, during school term, each fortnight from 3.30pm on Monday to 9am on Wednesday, and if the Monday is a non-school day, the time on Monday commence at 9am;

    vi)from 3.30pm until 7pm on (omitted) 2017, Y’s birthday; and

    vii)for half of school holidays.

Best interests of the child

  1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

    (1)The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)to maintain a connection with that culture; and

    (b)to have the support, opportunity and encouragement necessary:

    (i)          to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

    (ii)     to develop a positive appreciation of that culture.

    (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

    Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( type="1">

  2. From the chronology set out above, it is clear that the mother had relocated to (omitted) from (omitted) a few weeks before the matter came before the court for the first time.  The mother claimed her relocation was a response to the letters from the school, which she claimed were engineered by the father, banning her from all but the front area of the school.  The mother claimed this made it impossible for her to continue her work as a (occupation omitted) for four children who attended the school. The mother has also explained that she is able to afford more suitable housing in (omitted) than she can afford in (omitted).  The parents are both renting at the moment.  Their only appreciable assets are a car bought in 2010 for $41,000 and their superannuation.  I accept, based on common knowledge, that (omitted) is a cheaper area than (omitted) or (omitted) where the father now lives.  In addition, the mother said that in (omitted) she has support from her mother who lives in the same street, and other family members.

  3. The father’s counsel drew the court’s attention to B and B, Re: Family Law Reform Act 1995 (1997) 140 FLR 11; (1997) 21 Fam LR 676; (1997) FLC 92-755 and, in written submissions, quoted the following passage:

    The Family Law Reform Act commenced on 11 June 1996, the Bill having been passed with amendments in late November 1995. As the text of the Family Law Reform Act itself, together with the extrinsic material tendered on this appeal, namely, Explanatory Memoranda to the various Bills leading up to the Act and parliamentary debates (see s 15AB of the Acts Interpretation Act 1901 (Cth)), makes clear the major objectives of the Family Law Reform Act were the replacement of Pt VII of the Family Law Act with provisions which, inter alia, emphasised parental responsibilities rather than rights, removed the terms of guardianship, custody and access and replaced them with what were regarded as the more easily comprehensible terminology and concepts of residence and contact and which were to emphasise the importance of cooperative post-separation parenting rather than the ownership and control of children, and enabled parents to enter into their own agreement about their responsibilities for their children by means of parenting plans which could be registered with the Court.

  4. Counsel relied on B and B to submit that:

    The thrust of the 1995 and 2006 amendments to the Family Law Act was to reinforce the notion that the parent the children are primarily living with does not … [have] the right to make unilateral major decisions about the children’s care, welfare and development.

  5. There was some dispute about who was the primary carer of X and Y. However, I think it can be accepted that their father, who worked three days a week before 2016 and was then in full-time employment, was not their primary carer and their mother was.  The father has in fact consented to orders, for the time being, that X and Y live with their mother.  

  6. It is arguable that this is not a relocation case at all, as the mother’s move was within suburban Melbourne: D v SV (2003) 175 FLR 25; (2003) 30 Fam LR 91; (2003) FLC 93-137; [2003] FamCA 280; Muldoon v Carlyle (2012) FLC 93-513; [2012] FamCAFC 135. Indeed, the parties did not run the case as a fully-fledged relocation matter. As noted, the father consented to X and Y living with their mother for the time being, without making that consent conditional on where they lived. Ultimately, the father would like equal shared care. However, he apparently accepts that equal shared care would not be in X and Y’s best interests at the moment. That is undoubtedly correct. Y is only two and a half years old, and X is about to start prep, which is a notoriously tiring phase of a child’s life.

  7. It is true that even a move within a capital city can limit the amount of time that a child can spend with the non-resident parent because of distances, traffic and so on.  In the present case, a shared care arrangement might be in X and Y’s best interests in the future.  However, it is not at this point.  Because the father and his employer are prepared to slightly modify the father’s working hours to enable X and Y to spend alternate Sunday nights with him, as well as other time, X and Y will be able to spend sufficient time with their father to meet their best interests as those interests are at present, even if the mother remains in (omitted) for now.

  8. In all the circumstances of this case, including:

    a)X’s prep school needs to be resolved quickly;

    b)the parents have not made arrangements with any schools besides (omitted) Primary School and (omitted) Primary School;

    c)(omitted) Primary School is not an acceptable option, for the reasons previously discussed;

    d)the parents apparently have limited funds to enable the mother to relocate back to the (omitted) area;

    e)the mother has family support in (omitted);

    f)the mother does not have a car but could walk X to (omitted) Primary School from her current residence;

    g)it is not known what other accommodation the mother could find in the (omitted) area or what the walking distances would be to a local school other than (omitted) Primary School,

    it seems to me to be in X and Y’s best interests that they live with their mother in (omitted), for the time being.  That is not to say that it will always be in their best interests to remain in that area.  While it would be unfortunate for X to change primary schools, the detriments of that might be outweighed by other factors in the future.  Alternatively, the father might be able to find employment in the (omitted) area, to enable a shared care arrangement to work.  These are questions for another day.

  9. It is perhaps worth mentioning that, where a parent says that another parent should return to a particular area, they usually provide evidence about how that might be practicable, such as evidence of the availability and cost of rental properties and so on.  None of that kind of evidence was available in the present case.

  10. In any event, the next principal question is what the arrangements should be over Christmas.  The parents have agreed to certain orders by consent.  In addition to those, I was inclined to some single days spent by X and Y with their father, given, particularly, that Y is only two and a half years old.  However, counsel for the father did remind the court of the family consultant’s evidence, which supported a block of a single week in school holidays and also supported blocks of up to three nights, in alternate weeks, once school term starts.  I accept that evidence. 

  11. The next question is whether it is in X and Y’s best interests to spend alternate weekends with their father extending to Monday morning in alternate weeks.  Ms E’s evidence supported that.  I accept that evidence.  The father appears to be a good father, who has the capacity to care appropriately for X and Y.  It is important for the further development of their relationship that they be able to have the additional time together.

  12. The next question is whether it is in X and Y’s best interest to spend an overnight with their father in alternate weeks.  Ms E did not support that proposal.  Ms E considered that it would be in X and Y’s best interests to spend from 3.30pm to 7pm on alternate Thursdays.  I accept that evidence.

  13. There is no need to make orders at this stage for X and Y to spend time with their father on Y’s birthday, as the matter will return to court for final hearing before then. 

  14. Finally, there is the question of changeover.  It makes sense for changeover to be at school at school times.  I did not understand there to be any opposition to that.  As the mother will be living in (omitted), and as she prefers changeover at her mother’s house, which is a few doors down from her own, and as the father did not say anything of significance about difficulties with this arrangement, it seems to me to be best that changeover, when not at school, occur at the maternal grandmother’s home.

  15. There will be orders giving effect to these reasons.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     1 February 2017


Details
AGLC
Wheatley and Caldwell [2017] FCCA 148
Case
[2017] FCCA 148
Decision Date

CaseChat Overview and Summary

Wheatley and Caldwell concerned a dispute between two parties, Wheatley and Caldwell, heard before Judge Riley. The precise nature of the dispute is not detailed in the provided text, but it involved a legal disagreement requiring judicial determination.

The central legal issue before Judge Riley was to determine the rights and obligations of the parties in relation to the matter in dispute. This would have involved an examination of the relevant facts and the application of applicable Australian law to those facts.

Judge Riley's reasoning and the legal principles applied would have been based on an interpretation of the law as it pertains to the specific circumstances of the dispute. The judgment would have articulated the legal basis for the court's findings and any orders made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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