Whitton and Whitton and Anor

[2010] FamCA 1025

FAMILY COURT OF AUSTRALIA

WHITTON & WHITTON AND ANOR [2010] FamCA 1025

FAMILY LAW – CHILDREN – Interim parenting orders – With whom children live and spend time – Decisions made on an interim basis made on the basis of uncontested facts – Mother breached parenting orders by secretly relocating her children to another area of New South Wales – Mother alleges she relocated to avoid hostility and lack of communication of the paternal grandmother – Evidence fairly gives rise to an inference the hostility between the mother and grandmother is not as bad as the mother might suggest – State of communication is worsened by relocating secretly to a distant place – Mother is wary of the father who has been violent towards her – Father’s behaviour is regulated by an Apprehended Violence Order – Mother’s general practitioner asserts the mother suffers depression and has suicidal thoughts – Finding that the general practitioner’s letter is not an independently formed opinion – Three youngest children shall remain in the care of the mother only whilst they and the mother continue to live with the maternal grandmother in her home in the Newcastle district – All children shall continue to have regular interaction with each other and the interested adults in their lives

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65AA, 65D,
Family Law Rules 2004 r 11.02(2)

APPLICANT: Mrs Whitton Senior

1st RESPONDENT: Ms Whitton

2nd RESPONDENT: Mr Whitton

INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners

FILE NUMBER: NCC 1890 of 2009

DATE DELIVERED: 21 October 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 21 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Denise Clarke Solicitor & Advocate

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Elizabeth Fleming & Associates

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Fowler Predny Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the mother on 1 October 2010 is dismissed.

2. The Response filed by the paternal grandmother on 21 October 2010 is dismissed.

3. The costs reserved pursuant to Order 5 made on 27 September 2010 are reserved to the final hearing.

4. The costs of the applicant paternal grandmother, respondent father and the Independent Children’s Lawyer incidental to today’s proceedings are reserved until the final hearing.

IT IS FURTHER ORDERED THAT

1. The trial of this matter is listed to continue before Justice Austin at 10:00 am on Monday, 6 December 2010, for a period of four days.

2. The first respondent mother and second respondent father shall file and serve any Amended Response by Friday, 29 October 2010.

3. The parties shall file and serve the affidavits upon which they rely by Friday, 19 November 2010.

4. Leave is granted to the applicant paternal grandmother to file and serve an affidavit of herself only.

5. Leave is granted to the first respondent mother to file and serve affidavits of:

   a.Herself; and

   b.The maternal grandmother.

6. Leave is granted to the second respondent father to file and serve affidavits of:

   a.Himself; and

   b.Ms M.

7. The witness to be called by the Independent Children’s Lawyer will be the Family Consultant.

8. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the Court.

9. Leave is granted to the parties and Independent Children’s Lawyer to issue update subpoenae to any person or entity to whom subpoenae have been issued in the past.

10. Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the mother’s general practitioner, Dr AT.

11. The parties shall by Wednesday, 1 December 2010, file with the Associate of Justice Austin an Agreed List of Documents.

12. The parties shall by Wednesday, 1 December 2010, file with the Associate of Justice Austin, and serve upon one another, a Case Outline Document containing:

    a.Chronology;

    b.Summary of Argument; and

    c.List of Authorities

13. If any party should default in the compliance with these orders any other party may contact the Associate of Justice Austin, on notice to the other parties, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

14. Liberty to restore the matter to the list on seven days notice for further procedural orders.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. The mother and father shall both submit to urinalysis drug screening upon the following conditions:

   a.Until the hearing on 6 December 2010, those parties shall provide samples for testing each fortnight on a random basis and for that purpose the Independent Children’s Lawyer shall arrange the appointments at the pathology laboratory and shall inform the parties of the appointments by call to the telephone numbers provided by the parties to him by 5.00 pm the evening before the testing is scheduled to occur.

   b.The Independent Children’s Lawyer must ensure that the pathology laboratory designated to conduct the testing does so in accordance with Australian/New Zealand Standard 4308/2001, and that the name and address of that pathology laboratory is known to the other  parties.

   c.At the commencement of each test the parties shall provide the pathology laboratory staff with photographic identification, shall submit to supervision of provision of the urine sample, and shall direct the pathology laboratory staff to verify the fact of both identification and supervision upon laboratory records.

   d.The cost of testing is to be borne by parties.

   e.The parties shall serve upon the Independent Children’s Lawyer and the paternal grandmother copies of the test results forthwith upon provision of those results to him or her.

   f.The parties shall irrevocably authorise the pathology laboratory to provide copies of all test results to the Independent Children’s Lawyer upon request.

NOTATION

A.Although dismissed, the Response of the paternal grandmother sought preservation of the interim parenting orders made on 12 May and 27 September 2010, which is the result of dismissal of the mother’s Application in a Case.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1890 of 2009

MRS WHITTON SENIOR

Applicant

And

MS WHITTON

First Respondent

And

MR WHITTON

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made for seven children born to the first respondent mother and second respondent father. 

2. Those children are E born in March 1997, R born in March 1997, H born in January 2000, N born in February 2002, T born in February 2002, A born in March 2006 and Z born in July 2008.  As will be observed from their respective dates of birth, the eldest two children, who are twins, are now aged 13 years, and the youngest child is now aged 2 years.

Background

1. The proceedings were commenced by the paternal grandmother when she filed an Initiating Application on 27 July 2009. 

2. The mother and father had previously separated and entered into final parenting orders concerning the first six children on 14 July 2006.  Following the making of those final orders, the mother and father reconciled their relationship and the seventh child was born. 

3. In or about the school holidays of October 2007 the three eldest children commenced to live with the paternal grandmother and they have been resident with her ever since. 

4. Once the proceedings were commenced by the paternal grandmother in July 2009, interim parenting orders were made by this Court on 30 July 2009.  Those orders provided in effect that the children E, R and H would continue living with the paternal grandmother and that N, T A and Z would live with the mother.  Provision was made for the children to spend time with one another and the interested adults in their lives.

5. The mother joined in the proceedings by filing a Response on 7 September 2009 and the father also subsequently joined in the proceedings.

6. The matter came before the Court for its first day of trial before a Judge on 22 January 2010, at which time some procedural orders were made so that the matter could proceed to final determination on 25 May 2010. 

7. The matter was relisted in advance of that date on 12 May 2010, at which time the parties placed before the Court an agreement as to interim parenting orders soliciting the Court’s ratification of that parenting regime.  Consent orders were made on an interim basis on that day, effectively providing for the children E, R, H and N to live with the paternal grandmother and for the children T, A and Z to live with the mother, provided the mother lived with those three children in the home of the maternal grandmother.

8. It was the intention of the parties to test that parenting arrangement in the expectation, or at least the hope, that the interim orders could be converted to final orders after the elapse of some six months.  For that reason, the matter was further adjourned until 12 November 2010.

9. The matter was brought back before the Court by the Independent Children’s Lawyer because of a relocation by the mother with the three children living with her to another part of the State of New South Wales. 

10. On 27 September 2010, the Application brought by the Independent Children’s Lawyer was considered and granted.  On that occasion, the mother was ordered to return the children T, A and Z to their principal place of residence at the home of the maternal grandmother and she was restrained from thereafter changing the principal place of residence of those children.

11. On that day the mother foreshadowed an application to permit her relocation back to the south coast of New South Wales with those children and an order was made listing the mother’s proposed Application for hearing to today, on the proviso that she filed and served her Application in a Case within seven days.

12. Although the mother filed her Application in a Case within seven days, she failed to serve it on any of the other parties within that time frame.  Nevertheless, none of the other parties object to the mother’s Application being considered today and I accordingly have proceeded to consider it on its merits.

Proposals and evidence

1. The competing applications before the Court today are those brought by the mother and the paternal grandmother.

2. The mother relies upon her Application in a Case filed on 1 October 2010, by which she seeks amendment of the existing interim parenting orders and permission for her to relocate away from Newcastle back to the south coast of New South Wales with the three youngest children.  In support of that Application the mother relies upon her affidavit filed on 1 October 2010.

3. The paternal grandmother relies upon the Response filed by her today, in which she effectively seeks dismissal of the mother’s Application and retention of the status quo. In support of the orders sought in her Response the paternal grandmother relies upon the affidavit filed by her today.

4. The mother can have no quarrel with the late notice of the paternal grandmother’s Response and affidavit, given the mother’s own dereliction in failing to comply with the procedural orders made on 27 September 2010.

5. The father has not filed any documents.  He supports the Application of the paternal grandmother. 

6. Likewise, the Independent Children’s Lawyer supports the Application of the paternal grandmother.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. I bear those statutory considerations in mind when analysing the evidence presented by the parties.

Consideration and conclusion

1. As is well known, interim hearings before this Court are conducted in a specialised way.  The evidence is not tested.  Decisions on an interim basis can only be made on the basis of uncontested facts and inferences which fairly arise from the evidence adduced.  There is no utility in the parties placing before the Court contentious evidence which cannot be tested or evaluated.

2. By reference to the evidence adduced, there are some matters of uncontested fact which are important. 

3. The interim parenting orders which were previously made between the parties on 12 May 2010 were made with the consent of the parties, including the consent of the mother.  When the mother offered her consent to those orders it follows that she must have considered that it was in the best interests of the children for:

   a)The allocation of equal shared parental responsibility for all seven children to herself, the father and the paternal grandmother (Order 1.3 made on 12 May 2010).

   b)The children E, R, H and N to live with the paternal grandmother (Order 1.1 made on 12 May 2010).

   c)The children T, A and Z to live with her, but only on the proviso that she and those children remain living with the maternal grandmother (Order 1.2 made on 12 May 2010).

   d)Express provision to be made for the children to continue spending time on a frequent basis with their siblings and important adults in their lives (Orders 1.4, 1.5, 1.6, 1.7 and 1.8 made on 12 May 2010).

4. The mother thought it appropriate to remove herself and the three youngest children to a distant and undisclosed location without notice to any of the other parties.  That occurred on or about 19 August 2010 (affidavit of the mother, par 6; affidavit of the paternal grandmother, par 13). 

5. As a consequence, the mother was in breach of the existing parenting orders made on 12 May 2010 because the children who were then with the mother were deprived of their proper interaction with the paternal grandmother and their siblings for over a month until that interaction was recently resumed in the October 2010 school holidays (affidavit of the paternal grandmother, par 14).  The orders made on 27 September 2010 now preserve that status quo.

6. The mother has advanced numerous reasons for her secretive relocation to the south coast of New South Wales. 

7. She says that she moved away from Newcastle because she had friends in that new area and that the rent in that area was cheaper for her (affidavit of the mother, par 6).  Although uncorroborated, that could be true, but they are not reasons to validate the relocation of the three youngest children in the manner I have described. 

8. The mother also says she moved from Newcastle to escape negative influences which compromised the prospects of her abstaining from the use of illicit drugs (affidavit of the mother, par 10).  It is worrying that the mother concedes she has insufficient willpower to withstand peer pressure and the temptation to indulge in illegal activity. In Newcastle she is required to live with the maternal grandmother.  Living as a single parent on the south coast of New South Wales likely exposes the mother to greater danger and therefore exposes the children to a heightened risk of being left in the neglectful care of an intoxicated parent.

9. The mother says that she sought to move away to avoid the hostility and lack of communication of the paternal grandmother (affidavit of the mother, par 11).  The paternal grandmother denies such hostility.  As already indicated, it is not possible to make findings about contested facts, but the paternal grandmother asserts that she invited the mother to her home for birthday celebrations recently with the children, in relation to which she is able to produce corroborative photographs (affidavit of the paternal grandmother, par 24, Annexure B).  An inference fairly arises that the degree of hostility between the mother and the paternal grandmother is not as bad as the mother might suggest.

10. The mother agreed to four of her seven children living with the paternal grandmother. She clearly intends to continue interacting with those four children and the paternal grandmother.  The allegation of hostility, even if it is true, does not rationally explain the mother’s decision to relocate to a geographically distant area.  Similarly, blaming the paternal grandmother for the lack of communication is illogical.  Relocating secretly to a distant place is bound to worsen the state of communication between them.

11. Understandably, the mother is wary of the father who has apparently been violent towards her. That is verified by his convictions.  However, his behaviour is regulated by an Apprehended Violence Order, which the mother concedes is in place until 29 July 2011 (affidavit of the mother, par 4).  As the Independent Children’s Lawyer has pointed out, the mother has not adduced any evidence of any other incidents of violence between herself and the father since she agreed to the interim parenting orders on 12 May 2010.  Those interim parenting orders regulate the manner in which the children spend time with the father (see Orders 1.7 and 1.8 made on 12 May 2010) and the manner of that interaction does not require the mother and father to come into contact with one another.

12. Worryingly, the mother admits to recently suffering depression and having suicidal thoughts (affidavit of the mother, par 3).  The mother has adduced in evidence a letter from her general practitioner (affidavit of the mother, par 5, Annexure A) but I repose little weight in the letter of the doctor.  It is unclear as to whether the doctor understood the purpose for which she authored her letter dated 12 August 2010 addressed “To whom it may concern”.  I infer that she was not privy to the evidence which has been placed before this Court and it is implicit from the short letter written by the doctor that she relied substantially on the history given to her by the mother rather than providing independently formed opinions.

13. In the circumstances, the best interests of all seven children are most efficiently met by:

    a)Ensuring that the three youngest children remain in the care of the mother, but only whilst they and the mother continue to live with the maternal grandmother in her home in the Newcastle district; and

    b)Ensuring that all children continue to have regular interaction with one another and the important adults in their lives.

14. For those reasons, I consider that the orders I am about to announce are both practicable and reflect the children’s best interests.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 October 2010

Associate: 

Date:  21 October 2010