Adams & Randall
[2011] FamCAFC 204
•14 October 2011
FAMILY COURT OF AUSTRALIA
| ADAMS & RANDALL | [2011] FamCAFC 204 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the mother seeks to relocate with the children from the Central Coast in New South Wales to North Queensland – Where the Federal Magistrate restrained the mother from relocating the residence of the children, unless such relocation was to the Greater Sydney Metropolitan Region, court ordered or agreed to by the father – Where the time the children spend with their father was determined by the father’s work roster – Where the mother submitted that the orders were not practical, unduly onerous for the children and that the more suitable option would have been to allow her to relocate to North Queensland FAMILY LAW – APPEAL – CHILDREN – Where the evidence as to where the father would be living was uncertain – Where the orders for the children’s time with the father, especially when the children commence school are unworkable – Where the mother filing further proceedings once the children start school was not a satisfactory alternative, as it would place the onus on the mother to demonstrate why the orders should be altered and such a hearing may create an artificial situation where the children’s time with the father may be considered in isolation, whereas the whole of the parties proposals, including the mother’s application to relocate, may need to be considered – Appeal allowed – Matter to be remitted for re-hearing FAMILY LAW – APPEAL – PROPERTY – De facto relationship – Where the property pool was small – Where the amount of spouse maintenance payable by the father was agreed – Where a superannuation splitting order was made – Where the Federal Magistrate made no error in determining the property matter – Appeal of the property orders dismissed FAMILY LAW – COSTS – Where the appeal is allowed in part – Where there is no justification for an order for costs – Costs certificates granted to both parties of the appeal and the re-hearing |
| Family Law Act 1975 (Cth) Family Law (Superannuation) Regulations 2001(Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Collu & Rinaldo [2010] FamCAFC 53 In the Marriage of Hall (1979) FLC 90-713 In the Marriage of Hickey (2003) FLC 93-143 Morgan & Miles (2007) 38 Fam LR 275 MRR v GR (2010) 240 CLR 461 Palmer & Hammer (No 2) [2011] FamCAFC 196 Rice & Asplund (1979) FLC 90-725 |
| APPELLANT: | Ms Adams |
| RESPONDENT: | Mr Randall |
| FILE NUMBER: | SYC | 6475 | of | 2009 |
| APPEAL NUMBER: | EA | 73 | of | 2011 |
| DATE DELIVERED: | 14 October 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Thackray JJ |
| HEARING DATE: | 23 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 May 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 209 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
The appeal is allowed in part.
Orders 4, 5, 6 and 7 of the orders made 13 May 2011 are set aside.
The applications of the parties for parenting orders are remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Monahan.
Until the re-hearing the orders made 13 May 2011 be the operative orders on an interim basis.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Adams & Randall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 73 of 2011
File Number: SYC 6475 of 2009
| Ms Adams |
Appellant
And
| Mr Randall |
Respondent
REASONS FOR JUDGMENT
Introduction
In an amended notice of appeal filed by the mother on 20 June 2011 orders of Federal Magistrate Monahan made 13 May 2011 concerning both final parenting and property settlement orders are sought to be set aside.
The parties’ children are twin girls, P and E, aged 5 and a boy, L, aged 2. The orders provided that the children live with their mother and that the parents have equal shared parental responsibility.
In regard to the parenting orders, the mother appeals order 4 which provides:
4. The Mother be restrained from relocating the residence of the children from the Central Coast area in the State of New South Wales unless:
(a) the Mother relocates with the children to the Greater Sydney Metropolitan Region; or
(b) the Applicant consents to such relocation in writing; or
(c) the Court orders that the Mother may relocate with the children.
The mother wishes to move to the Cairns area in North Queensland with the children.
The mother also by appeal challenges order 5 which provides complicated orders for the time that the children are to spend with the father, and order 6 which facilitates the changeover process.
The orders are based on a 28 day cycle to coincide with the father’s work roster. The twins are to have two, four and then seven nights in a row with the father and upon commencing school, no more than 4 nights in a row of 10 days in a 28 days cycle. Provision is made for the sharing of school holidays.
The time with L is on a daily basis at first (expiring June 2011) then until the end of this year, on a single overnight basis for four occasions in a 28 day cycle, expanding to two nights and then ultimately seven nights for holidays up to 28 January 2013.
In addition, the mother appeals from order 12 which removed the children’s names from the Airport Watch List and permits the parties to take the children out of New South Wales and/or Australia on holidays, provided certain preconditions are met, and order 13 which provides for which party is to retain the children’s passports when not being used for travel.
The mother appeared for herself to argue the appeal. As we understood the mother’s submission to us, her central complaint is that the orders made by the Federal Magistrate are not practical, unduly onerous for the children and that the better option would have been to allow her to move to North Queensland.
We will refer at the outset to two key paragraphs of the Federal Magistrate’s reasons:
78.It is noteworthy that the Mother’s proposal to relocate is for lifestyle reasons. There is no evidence that she would be better off financially in undertaking such a move. She would not have the support of extended family to assist her in the care of the children and, as noted above, she faces the prospect of a reduction in her child support payments. The children would not just be living further away from the Father, but they would also be living further away from their Sydney-based maternal grandmother and their Hobart-based paternal grandparents.
79.In contrast, the spend time orders proposed by the Father are reasonably practicable if the Mother remains residing in the Central Coast area or relocates to the Greater Sydney Metropolitan Area.
The difficulty highlighted by the mother is that as the twins will commence school next year the orders as provided will be impossible to carry out, especially if the father continues to reside at southern Sydney and the mother at the Central Coast.
As to the property orders, the mother appeals order 22(c) which provided that the net balance upon the settlement of the sale of the F property be divided between the parties as to 55 per cent to the father and 45 per cent to the mother. The mother seeks that she retain the whole of the net proceeds of sale.
The mother also appeals orders 27 to 31 concerning superannuation. Despite an agreement between the parties that the father retain his superannuation, orders were made that provide:
27. The base amount to be allocated to the Mother out of the interest of the Father in the Superannuation Plan is valued at $38,140.55.
28. Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Father in the Superannuation Plan the Mother or her administrators, executors, beneficiaries, heirs, or assigns shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount in paragraph 27 of these Orders and there be a corresponding reduction in the entitlement the Father would have had but for these orders.
It became apparent from the mother’s submissions that she is challenging the order whereby part of the net proceeds of sale of the F property are to be retained by the father. The mother is content to retain the share of the superannuation.
In the amended notice of appeal the mother asserts 7 grounds of appeal. The grounds, in summary provide that the Federal Magistrate erred:
As to relocation of the children:
1. by focusing on whether the mother should be permitted to remove the children to Cairns rather than properly considering and assessing the parties’ competing proposals.
2. by considering only the father’s present work arrangements, rather than the best interests of the children and the reasonableness of the father changing his work arrangements.
3. when considering the reasonable practicality of the arrangement by not assessing the extent of the parties’ capacity to communicate and their different approaches to parenting.
4. in failing to consider or adequately consider the impact of the mother’s material circumstances and general quality of life on the children’s best interests.
5. in not having regard to the long term parenting arrangements and the best interests of the children given the father’s history of relocation and the possibility that he will leave Sydney or given that both parties may leave the Central Coast or Sydney area.
As to other parenting orders:
6. in discharging the “watch list” order given the father’s occupation and the poor relationship between the parties.
And in relation to the property orders:
(a)in failing to consider the mother’s future need to house the children and herself in determining the factors to be considered pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) (sic).
Should the appeal be allowed the mother seeks in summary that:
·She be permitted to relocate with the children to the Cairns area, being a place not exceeding a radial distance of 50 kilometres from the Cairns Post Office.
·The children spend time with the father during his rostered days off:
o In relation to P and E from 10.00am on the first day until 4.00pm on the third day;
o In relation to L:
§ for a period of 6 months from 10.00am to 3.00pm on each day that [P] and [E] are with the father;
§Thereafter for a period of 3 months from 10.00am on the first day until 3.00pm on the second day;
§ Thereafter the same as the other children.
oThe father ensure that the children attend school during any period of time spent with him.
·Both parties be restrained from removing the children from the Commonwealth of Australia and that the children names be placed on the Federal Police Airport Watch List.
·The whole net proceeds of sale of the F property be paid to the mother. The mother would not seek any alteration to the orders otherwise including that she would retain some part of the superannuation.
We mention that the mother seeks this relief should the appeal be allowed however it is apparent that this court would not re-exercise the discretion without further evidence, especially in relation to the children’s issues and thus should the appeal be allowed, a new trial is inevitable.
Background
The mother was born in December 1973 and the father in October 1974. At the time of the hearing the parties were 36 and 35 respectively.
The mother is a full-time parent and in receipt of Centrelink benefits. The father is employed as a pilot.
The mother has a son from a previous relationship; he was born in December 1996 and resides with her and the other children.
The parties have three children, P Randall and E Randall born in August 2006 and L Randall born in June 2009. The children are now aged 5 and 2 years.
The parties met in October 2005. In same year the father accepted a position with a firm based in Cairns, Queensland.
In February 2006 the parties began living together in Cairns. In August the twins were born.
In August 2007 the father ceased employment in Cairns and commenced employment in Sydney. The mother and the twins remained living in Cairns.
At the end of same year the father purchased the F property for $550,000.00, financed by borrowed funds of $455,000.00 and the balance from the father’s savings.
In 2008 the parties moved into the F property and renovated the house.
In June 2009 the parties’ youngest child was born.
The following month in July 2009 the parties separated. Since separation the children have lived with the mother and spent time with the father. The mother remained living at the F property, a place located north of Sydney. The father lives at a southern suburb of Sydney.
Shortly after separation the father commenced parenting proceedings in the G Local Court and obtained an interim injunction restraining the mother from relocating with the children to an area outside the G local government area and the Sydney Metropolitan area. The children’s names were placed on the Airport Watch List. The parenting proceedings were then transferred to the Federal Magistrates Court. The father also commenced property proceedings.
The interim parenting orders in place at the time of the hearing were orders made on 15 December 2009, by consent. They provided that the twin girls spend two consecutive days with the father as nominated by him. L was to spend two hours at the commencement of, and one hour at the conclusion of that time.
It has always been agreed between the parties that they have equal shared parental responsibility and that the children live with the mother.
In 2010 a contravention application was heard and the mother was found to be in breach of parenting orders. Orders were made for “compensatory time”. In the same year the father unsuccessfully sought a change in his child support assessment.
The final parenting and property proceedings were heard on 23, 24 and 27 August 2010. The orders and reasons for judgment were delivered on 13 May 2011.
Reasons of the Federal Magistrate
After outlining the litigation history and the parties’ respective proposals for both the parenting and property orders, the Federal Magistrate identified the issues which were in dispute at the final hearing and those issues about which he understood the parties had reached agreement:
29.The following issues were in dispute at the Final Hearing:
· whether the Mother should be able to relocate to Cairns with the children;
· the amount of time the children should spend with the Father in the event that the relocation is either permitted or refused;
· the parties’ contributions made during their relationship;
· the parties’ contributions made following the breakdown of their relationship in 2009; and
· the parties’ respective future needs and obligations.
30.By the conclusion of the Final Hearing the parties were in agreement in respect of the following matters:
· that each party have equal shared parental responsibility for the children;
· that the children live with the Mother in Cairns (if relocation is permitted) or on the Central Coast (if relocation is refused);
· that the Father cause the [F property] to be sold and that the Mother may continue to occupy that property pending settlement of the sale;
· that, subject to proper accounting as between the parties, the Father retain his superannuation entitlements; and
· that the Father pay spousal maintenance to the Mother in the sum of $200.00 per week though the Father seeks that this commence following settlement of the sale [F property] due to his current mortgage obligations in respect of that property.
We note that there was no reference made by his Honour to the removal of the children’s names from the Airport Watch List in the disputed issues list, although the mother sought an order in her amended response filed 11 June 2010 in these terms:
6.Both parties be restrained from removing the children from the Commonwealth of Australia and the order made by the Local Court at [G] on 8 October 2009 placing the children on the Federal Police Airport Watchlist (sic) be continued.
His Honour was aware of the application as he refers to it in paragraph 24 and later in paragraphs 81, 123 and 140 where he noted that no submissions were made by either party on this issue. To complete this topic we will refer to his Honour’s decision at paragraphs 141 and 142:
141.Given the evidence and the lack of submissions by the parties in relation to this issue, I am satisfied that there is no longer a need for such an order. In lieu, there will be a general prohibition on the parties removing or causing the removal of the children from Australia subject to an exception that should either party seek to travel overseas with the children, then such party provide the other parent with an itinerary of destination, return dates and contact details not less than 28 days prior to the proposed departure and seek the other party’s consent and that such consent by the other party may not be unreasonably withheld.
142.In the event that the parties are in dispute as to which party should retain the children’s passports, then the Final Orders will stipulate that when such passports are not being used for travel, the Father retain possession of [P]’s passport, the Mother retain possession of [E]’s passport and the parties alternate the possession of [L]’s passport with such passport to be in the possession of the Mother in odd-numbered years and in the Father’s possession in even-numbered years. Such passports should be released by the relevant party upon any reasonable request being made to do so (e.g. to obtain a visa and/or to facilitate travel) and be returned to the relevant party within seven (7) days of returning from any overseas trip.
Parenting Dispute
The Federal Magistrate correctly first dealt with the issues relating to the children. Prior to referring to any other evidence his Honour quoted large sections from the Family Report prepared by Dr V, a family consultant. The recommendations of the family consultant were then included in the reasons for judgment. We will repeat here an essential part of the report, as contained in the reasons in this respect. Dr V said in her report:
60. Unless further evidence comes before the Court, it is recommended that the children continue to live with their Mother in New South Wales.
61. It is recommended that the children spend significant time with their Father at the very least 10 days per month as he has proposed. It is recommended that there be an incremental increase in the number of evenings the children spend with their Father.
62. It is recommended that changeovers occur in a neutral venue preferably at the preschool.
63. It is recommended that both parties refrain from involving the children in any inappropriate and not child focused conversations with the children about the dispute or the other parent.
64. It is recommended that the parties participate in a parenting after separation program or equivalent such as that offered by UNIFAM.
65. It is recommended that Ms [Adams] seek counselling … to assist her to deal wit[h] issues relating to the separation.
66. It is recommended that the current status of Ms [Adams] mental health be ascertained.
After referring at some length to the oral evidence given by Dr V the Federal Magistrate referred to the Full Court (Evatt CJ, Asche SJ & Hogan J) decision in In the Marriage of Hall (1979) FLC 90-713 for some guidance as to how family reports should be considered and assessed. At paragraph 48 of his Honour’s reasons he said that given “Dr [V]’s evidence was tested and not found to be wanting in relation to her recommendation” and considering her expertise and independence “the Court must give the Report and Dr [V]’s oral evidence considerable weight”.
Considering the parties’ evidence the Federal Magistrate said:
50. Generally speaking, the Father presented as a polite witness who appeared genuinely concerned for the children’s welfare. However, the Father was, at times, a little evasive about his past behaviour.
…
53. The Mother presented as a capable parent who demonstrated her clear love and affection for the children. That said, she had difficulty in acknowledging or accepting that the Father should play any major role in the children’s lives and not all of her responses were child-focused. While the Mother was able to remember some matters in considerable detail, she was also unable to recall a number of events that were put to her in cross-examination.
…
108. The Court is satisfied that both parties have the capacity to provide for the children’s needs and have generally demonstrated a positive attitude toward the responsibilities of being a parent.
After summarising the applicable law and acknowledging that the parties agreed that parental responsibility for the children should be shared, the Federal Magistrate then considered whether the best interests of the children would be served by making an order that they spend equal time or substantial and significant time with each parent.
His Honour noted that this was a major issue as the mother was “seeking an order that would significantly limit the children’s time with the Father compared to that currently provided for in the interim orders that have been in place in various forms since October 2009”.
Of the mother’s proposal it was found by the Federal Magistrate at paragraph 67:
… the Mother ultimately proposes that the children spend time with the Father during his rostered days off from 10:00am on the first day until 4:00pm on the third day. This would presumably occur in the Cairns area. Regardless, once the children commence school, again, presumably in the Cairns area, then the Father would have to ensure that they attend school during any period that they are spending time with him. The Mother’s proposal makes no provision for the children spending time with the Father neither during school holidays nor for any other special days such as birthdays or Father’s day. (footnote omitted)
As to the children’s time with the father it was acknowledged that overnight time would be immediately applicable in respect of P and E and would be incrementally increased in time over a 9 month period in respect of L, before the times for all three children would coincide.
Under the same heading “Equal time or substantial and significant time” the Federal Magistrate set out s 65DAA(5), which provides:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
One difficulty we perceive with his Honour’s reasons is that there is no discussion in this part of his judgment, or later, of the very important matters set out in s 65DAA(5).
After considering the well known authorities in respect to relocation (see Morgan & Miles (2007) 38 Fam LR 275; MRR v GR (2010) 240 CLR 461 and Collu & Rinaldo [2010] FamCAFC 53) his Honour said:
72.The High Court’s opportunity to consider relocation post the 2006 amendments to the Act came in MRR v GR (2010) 240 CLR 461; [2010] HCA 4 (“MRR”). The High Court stated at paragraph 15 that s.65DAA(1) is concerned with “the reality of the situation of the parents and the child” and “not whether it is desirable that there be equal time spent by the child with each parent”. The presumption in s.61DA(1) is not determinative of the questions arising under s.65DAA(1). What s.65DAA(1)(b) requires is a “practical assessment of whether equal time parenting is feasible”. Had a proper consideration been given to the issue of ‘reasonable practicability’, the High Court opined that “only one conclusion could have been reached, one which did not permit the making of the order”.
73. At paragraph 19 in MRR, the High Court states:
“19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.”
74.The High Court’s interpretation of the mechanics of Part VII does not change the triggering effect of s.65DAA if the presumption for equal shared parental responsibility arises pursuant to s.61DA. While s.61DA requires a consideration of s.60CC factors, it is clear that s.65DAA, and the issue of ‘reasonable practicability’, is not solely determined by a consideration of the s.60CC factors. Some of these factors may, of course, be relevant. The capacity of the parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in s.60CC, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability. Consequently, these ‘reasonable practicability’ factors must be considered separately.
…
76. The orders sought by the Mother in the case before me would be reasonably practicable in theory if the Father relocates to the Cairns area. This is unlikely to occur because the Father’s employment is based in Sydney and he indicated that he is not intending to relocate to Cairns and that he is earning more money in his current position. The Father also gave evidence that he has to live within a three hour commute to his place of work.
77. The Father does, of course, have the advantage of working for an airline that provides generous concessional airfares for staff and nominated family members. In theory, he could utilise that benefit to organise travel for himself from Sydney to North Queensland on the days when he is rostered off work. The Father would, of course, have to organise appropriate accommodation whilst in Cairns. Alternatively, the Father could utilise those benefits to assist the Mother travelling down from Cairns, though she would similarly have to organise appropriate accommodation whilst in Sydney. There is the possibility that the Mother could be assisted by her family who live in Sydney, but unfortunately there was no evidence presented on this. Given the ages of the children, it is not likely that they would be able to travel as unaccompanied minors between Cairns and Sydney until they were much older. Moreover, given the recent child support dispute between the parties, there is potential for the added costs of the children spending time with the Father, assuming they live in Cairns, to reduce the amount of child support being paid by the Father to the Mother.
78. It is noteworthy that the Mother’s proposal to relocate is for lifestyle reasons. There is no evidence that she would be better off financially in undertaking such a move. She would not have the support of extended family to assist her in the care of the children and, as noted above, she faces the prospect of a reduction in her child support payments. The children would not just be living further away from the Father, but they would also be living further away from their Sydney-based maternal grandmother and their Hobart-based paternal grandparents.
79. In contrast, the spend time orders proposed by the Father are reasonably practicable if the Mother remains residing in the Central Coast area or relocates to the Greater Sydney Metropolitan Area.
(footnotes omitted) (original emphasis in italics) (our emphasis in bold)
We have highlighted the sentence in paragraph 76 because as it will become apparent we regard the evidence about where each party can and will live to be of some significance.
The Federal Magistrate then explained that various restraining orders were sought by the parties.
As already mentioned, the mother sought to retain the orders restraining the removal of the children from Australia and maintaining their names on the Airport Watch List. The father proposed that the children’s names be removed.
As will be apparent, a key issue in the matter was that the father sought that the mother be restrained from relocating with the children more than 20 kilometres from the F property, unless such a relocation be to the Greater Sydney Metropolitan Area, or authorised by the court or to another place with his consent.
After referring to the power of the court to grant injunctive relief relating to children, his Honour said:
84. There is an overlap between s.68B(1) and s.68B(2) of the Act in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone or independent power, meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) of the Act is ancillary, in that it only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the “best interests of the child” is an important, but not paramount, consideration, unless the order or injunction is a parenting order. (original emphasis) (footnote omitted)
85. Clearly, an order requiring the children to live in a particular area, and consequently restraining a parent from relocating the children away from that area, is a parenting order.
Under the heading “Bests interests of the children” the Federal Magistrate considered ss 60CC(2), (3) and (4) of the Act, with each subsection dealt with under a separate heading. Appropriately in this case the primary considerations were referred to first, followed by the additional considerations.
In considering the benefit to the children of having a meaningful relationship with both of their parents (s 60CC(2)(a)) his Honour said:
88. It is clear from the evidence of the parties that both accept the need for the children to have a meaningful relationship with the other party. Where the parties differ, however, is on how this can be achieved.
89. It is clear from the evidence of [Dr V] that any outcome should not jeopardise the children’s current wellbeing, including their ongoing and long term relationships with the Mother, the Father and their extended family.
90. There is an issue in this case that any reduction in the time the children currently spend with the Father, which will most likely occur if the Mother’s proposals are adopted, would have a significant impact on the children’s relationship with him.
91. The Court is satisfied that the evidence militates against the Mother’s proposed relocation as it would not serve the best interests of the children. Apart from the considerable distance that would need to be travelled to facilitate the children spending time with the Father, the children have no other family in the Cairns area.
(our emphasis)
The Federal Magistrate, while considering the willingness and ability of the parties to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c)) found:
101. Both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party but each make criticisms of the other party in this regard. That said, Dr [V] was of the opinion that there were examples of the parties cooperating and her observation of the children in the company of both parties was positive.
Reference was then made to the family report whereby Dr V said, at paragraph 58 of her report:
It is difficult to make a case that relocation to Queensland, which will inevitably result in the children spending substantially less time with their Father and their extended families and in a context that may be fraught, given the very poor communication that exists the parties, will be in the best interests of the children. Research argues that, in cases of relocation, children need the relocating parent to encourage communication, refresh and retain the memory of the absent parent and facilitate transport arrangements. There are indicators thus far that some of these expectations may be difficult for Ms [Adams] given her attitude towards Mr [Randall]. In many cases some writers suggest, the most likely outcome of relocation is a reduction in the intensity and meaningfulness of the relationship. There are strong indicators this may be the case in this family.
His Honour formed the view that the mother’s proposal would see a significant change to the children’s circumstances, as the children’s time with their father as well as their extended maternal and paternal family would decrease.
Under the important consideration of s 60CC(3)(e) which provides as follows:
(3) Additional considerations are:
…(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
all that was said by the Federal Magistrate in an otherwise long and comprehensive judgment was:
107.This consideration becomes a live issue if the Mother’s proposed relocation is permitted. Further relevant comments on this can be found in paragraphs 70 to 79 herein.
His Honour ultimately concluded:
125. After considering the evidence and submissions in light of the structured discretion contained in the Act, the Court is satisfied that the parties should continue to have equal shared parental responsibility for the children.
126. The Court is also satisfied that the children should continue to live with the Mother and that the best interests of the children would be served by them continuing to spend time with the Father. It is noted that both parties propose that the children continue to spend substantial and significant time with the Father.
127. That said, the Court is not satisfied that the children’s best interests would be served by allowing them to relocate to the Cairns area as proposed by the Mother. Apart from lifestyle considerations, the Court agrees with [Dr V] that such relocation risks an outcome that may lead to “a reduction in the intensity and meaningfulness of the relationship” between the children and the Father, and their extended maternal and paternal family.
128. The Court is also satisfied that a substantial and significant time arrangement between the children and the Father would not be reasonably practicable if the children were permitted to relocate to Cairns.
129. In contrast, the Court is satisfied that a substantial and significant time arrangement between the children and the Father is both in their best interests and would be reasonably practicable if the children continued to reside in the Central Coast area or the Greater Sydney metropolitan area. Consequently, there will be an order of the type sought by the Father.
130. The time to be spent by the children with the Father is complicated by his work roster … . That said, the parties formed both a relationship and a family knowing that such employment involves working outside more normal working hours.
…
(footnote omitted) (our emphasis)
Property Dispute
The Federal Magistrate found that the parties were in a de facto relationship.
During the proceedings the father agreed to pay the mother $200.00 per week, after settlement of the proposed sale of the F property.
After in detail referring to the relevant legislation, the Federal Magistrate, correctly we think, was of the view that the court should apply the four step process identified in In the Marriage of Hickey (2003) FLC 93-143 to proceedings pursuant to s 90SM of the Act.
We will set out the pool of assets of the parties to demonstrate its small net value. The asset pool was agreed by the parties to be comprised of:
Assets
Valuation
61 John Street, [F property]
$525,000.00
Household contents (M)
$8,500.00
Household contents (F)
$600.00
2002 T [vehicle] (M)
$2,000.00
2006 S [vehicle] (F)
Not Applicable
St George Bank Account (M)
$56.00
… Credit Union Account (F)
$440.00
… shares (F)
$463.00
Subtotal/Assets
$537,059.00
Liabilities
Combined home mortgage (F)
$448,573.00
… Visa (F)
$4,000.00
Subtotal/Liabilities
$452,573.00
Superannuation
… Superannuation Plan (F)
$100,158.00
Subtotal/Superannuation
$100,158.00
The value of the non-superannuation net asset pool is $84,486.00.
In considering the contributions of the parties it was concluded:
Financial and non-financial contributions
174. It is clear that both parties have made financial and non-financial contributions to the acquisition, conservation and improvement of the [F] property. This is particularly so given their mutual investment of their earnings into the property pool and their labours associated with the conservation of the [F] property.
175.It is also clear from the evidence that the Father, through the parties’ decision to specialise their respective roles, has been able to significantly contribute more of his income and energy into making financial and non-financial contributions to the acquisition and improvement of the [F] property than the Mother.
176.It is also clear from the evidence that the Father has made a significant financial contribution to the acquisition of the [F] property by contributing savings of approximately $100,000.00 to its purchase. Furthermore, since separation the Father has made relevant financial and non-financial contributions to the renovation of the [F] property and has continued to meet the mortgage payments.
177.The Mother, understandably, asks the Court to consider her own contributions, other than those which went toward the conservation and improvement of the [F] property and the parties’ living expenses. The Mother asserts that her own competing family contributions act to erode the significance of the Father’s on-going financial and non-financial contributions.
Family contributions as homemaker and parent
178.As has been previously noted, in addition to the Mother’s contributions made pursuant to s.90SM(4)(a) and (b) of the Act, the Court is satisfied that the Mother was the primary homemaker for the parties and the primary carer for the children. Consequently, the Court finds that she has made a significant contribution to the family pursuant to s.90SM(4)(c) of the Act.
179.The family contribution by the Mother as the primary carer of the children has continued post-separation. That said, the Father clearly spends significant time with the children and, despite their recent dispute in relation to child support, has been paying child support to the Mother.
In addressing s 90SF(3) and related factors his Honour accepted that there should be an adjustment in the mother’s favour, however, he did not accept that the adjustment should be 30 per cent, as sought by her. The Federal Magistrate found that an adjustment of 15 per cent was appropriate “given all the circumstances, including the modest size of the net property pool and the reality that the Mother will be assisted by spouse maintenance in the sum of $200.00 per week.”
It became apparent later in the reasons that his Honour decided, on a contribution basis, that the property should be divided 70 per cent in favour of the father but that an adjustment of 15 per cent should be made in favour of the mother, so that the pool be divided 55 per cent in favour of the father and 45 per cent in favour of the mother.
Under the fourth step (justice and equity) his Honour said:
186. This matter involves a relatively short de facto relationship where the children will be primarily parenting in the foreseeable future by the Mother and where the assets available for distribution are relatively modest.
187. It also involves considerable pre-relationship contributions made by the Father that have not been significantly eroded by the competing contributions of the Mother. As the Full Court stated in the case of In the Marriage of Pierce (1998) 24 Fam LR 377:
“In our opinion it is not so much a matter of erosion of contribution by a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…”
188.Overall, the Court is satisfied that, on a contributions analysis, the matrimonial property should divided 70% in favour of the Father and 30% in favour of the Mother.
189.In addition, as indicated above, the Court is satisfied that a further adjustment of 15% in the Mother’s favour to reflect “s.75(2) and related factors” is warranted.
190.Consequently, the Court is satisfied that the net property pool should be divided 55% in favour of the Father and 45% in favour of the Mother. The Court is further satisfied that such an overall adjustment is just and equitable in all the circumstances.
(footnote omitted)
The Federal Magistrate understood the effect of this division:
191. Based on the agreed valuations and determinations made by the Court, the sum of the asset pool, excluding superannuation entitlements, is $84,486.00. Calculating a 55:45 division from this notionally represents an amount of $46,467.30 in favour of the Father and $38,018.70 in favour of the Mother.
192.The principal asset for division between the parties is, of course, the proceeds of the [F] property. The final amounts to be received will depend upon the amount realized from the sale of the property.
193.In the absence of agreement to the contrary, and subject to accounting between the parties as will be discussed shortly, the Mother should retain the following:
· the household contents at the [F] property;
· the [T] vehicle; and
· the monies held in the St George Bank Account.
The Father should retain the following:
·the [S] vehicle (which is, of course, subject to leasing finance);
·his household contents;
·the monies held in the … Credit Union Account; and
·the … shares.
194. In relation to superannuation, it is noteworthy that despite the modest net property pool, neither party is seeking a splitting order in respect of the Father’s … Superannuation Plan. During his final submissions for the Father, Mr Sansom stated:
“As I have indicated to your Honour also, at the end of the day, we organised for a splitting order if one ever became absolutely necessary. We’re not seeking it, nor is the Mother, but just so that your Honour knows that there are some prospects of that should you find that our respective submissions don’t fulfil your Honour’s obligations.”
The Federal Magistrate then gave reasons for the superannuation orders:
195. In relation to superannuation, the Court sees no reason why a different overall percentage figure should apply following an analysis of s.90SM(4) of the Act. In other words, the Mother’s notional interest in the Father’s superannuation is $45,071.00, being 45% of the agreed value.
196.The Court understands the reasons why the Mother might prefer an outcome whereby she foregoes any interest in the Father’s superannuation in return for an outcome that may generate more funds and property being available to her now. Similarly, the Court understands the reasons why the Father might prefer an outcome whereby 100% of his superannuation entitlements are retained by him. However, it is clear that both parties will need access to funds now in order to re-establish themselves, given the reality that the [F] property will be sold.
197.If both the [F] property and the combined home mortgages are excluded from the calculations for a moment, then the available net asset pool, excluding superannuation, is just $8,059.00.
198.Based upon this outcome, the Father’s 55% share would be $4,432.45 and the Mother’s 45% share would be $3,625.55. If the Mother retains the household contents at the [F] property valued at $8,500.00, the [T] vehicle $2,000.00 and the monies held in the St George Bank Account $56.00, she would need to account to the Father in the sum of $6,930.45.
199.Given the uncertainty surrounding exactly what the proceeds of sale of the [F] property might be, and given the Father’s current financial circumstances and on-going obligations with respect to the [F] property, the Court is satisfied that there should be a superannuation splitting order of the Father’s … Superannuation Plan in the Mother’s favour valuing the base amount interest at $38,140.55. This base amount reflects the Mother’s notional interest in the Father’s superannuation less the shortfall adjustment needed in respect of the other personal property she will retain.
Submissions on appeal
As mentioned already in the appeal the mother appeared for herself. The father was represented by counsel.
Ground 1
This ground contended that his Honour erred in considering the issue of relocation by focusing on whether the mother should be permitted to remove the children to Cairns rather than properly considering and assessing the parties’ competing proposals.
In her written submissions the mother submitted that his Honour did not decide the case on “the reality of the situation” as required by the High Court decision in MRR v GR (2010) 240 CLR 461.
In particular the mother submitted that the Federal Magistrate could not have properly considered the reality that the situation will change when P and E start school in 2012 and that the orders are unworkable. The mother also submitted that:
The Federal Magistrate appears to discount the “reality of the situation” and to take an unforgiving attitude towards the Mother at paragraph 130 of his judgment “The time spent by the children with the father is complicated by his work roster as a … pilot. That said, the parties formed both a relationship and a family knowing that such employment involves working outside normal working hours.” Such a finding fails to appreciate that people do not expect their relationships to break down, nor are twins foreseeable, (indeed, sometimes no children are foreseeable) leading to a family with three very young children, who are being cared for by the Mother in difficult circumstances.
The mother submitted that his Honour erred in finding that her proposal to relocate was motivated by “lifestyle” reasons. For the mother this conclusion was not based on the evidence before the Federal Magistrate. In her written submissions the mother referred to her affidavit filed 9 August 2010 where she deposed:
28. I did not wish to relocate from Cairns where I was very happy. However [the father] said
“I want to go to further my career”.
29. He was my partner and I supported that decision …
I did not know anyone on the Central Coast but believed it would be preferable to Blacktown and agreed to relocate there.
If I had a choice at the time I would have stayed in Cairns…
35.I feel socially isolated on the Central Coast. I have no real supports and have been unable to access social networks to assist me. I did not wish to leave Cairns but left in support of the [father]. My only support is my mother who works 6 days per week as a cleaner and is more than 2 hours away. She provides me with the only real support that I have by way of telephone conversations. I see her once a month.
In her written submissions in support of the appeal the mother asserted:
There is no evidence [her] situation will improve is (sic) she remains on the Central Coast and less evidence her situation will improve if she moves to Sydney. Certainly, the present schedule of time with the Father, subject to his roster and subject to substantial travelling by the Mother is punishing on a mother with three such small children.
The mother was particularly concerned that his Honour failed to take into account the father’s move to southern Sydney, a move which resulted in him living further away from her and the children. There was no direct reference to this issue by the Federal Magistrate other than that contained in paragraph 76 of the reasons to which we have already referred.
It is essential here to appreciate what was the evidence in this respect before the Federal Magistrate. We will refer first to the transcript from 23 August 2010 commencing at p. 42:
Cross examination of Dr [V] by counsel for the mother:
…you’re aware that Mr [Randall] then moved from the central coast to [southern Sydney] which is two hours away from Ms [Adams] and the children?‑‑‑Yes.
And so that if she needs him at any time he’s two hours away and that’s if he’s not at work. And you’re aware of that?‑‑‑Yes.
Further, commencing at p. 45:
…you’ve said that, whilst it is understandable that he would want to draw some boundaries around his living arrangements to secure a physical separation from Ms [Adams], given the history since their separation, this does have the disadvantage of him – you said accessing the children. I think you might mean in restricting access to the children at this – I think what you mean is the access to the children that he has is more difficult?‑‑‑Yes, that’s right, yes, yes.
And where you say he has drawn some boundaries around his living arrangements, you mean by moving to [southern Sydney], do you, or ‑ ‑ ‑?‑‑‑Yes, yes.
So that two hours away – but that’s Mr [Randall’s] choice, isn’t it? You’re aware that that’s his choice?‑‑‑Yes, yes.
The next day the father gave evidence on this topic briefly and was cross examined by counsel for the mother commencing at p.105:
… when they start school in 2012 it’s going to be pretty difficult to try and have them during the week, isn’t it, if you ‑ ‑ ‑?‑‑‑No.
Well, if you’re still living in [southern Sydney] ‑ ‑ ‑?‑‑‑I have no intention of staying in [southern Sydney]. I’ll relocate somewhere throughout Sydney so I’m close to them. It’s only a temporary arrangement at the moment, where I’m living.
Would you excuse me, please. You told Dr [V] you were intending to stay in [southern Sydney] when you ....., didn’t you?‑‑‑No, and I - that’s incorrect, and the doctor explained that as well at the end that she did speak to me about that and I was looking at other options, but I was waiting on final orders so that I knew exactly the decision about the Cairns move.
My recollection of her evidence yesterday that you told her you weren’t intending to move from [southern Sydney], and that ‑ ‑ ‑?‑‑‑That’s not my recollection, no.
That’s not your recollection of what you told her or it’s not your recollection of what she said yesterday?‑‑‑That’s not my recollection of what I heard her say yesterday, no. No. And I actually did tell her that I would move closer to the children at an appropriate time.
Further at p.109:
If it’s a two hour drive from [southern Sydney], isn’t it?‑‑‑There has been when I’ve taken – during the catch-up time it was taking about two hours.
And you would agree that time that you are talking about that was in April and that was one week in April?‑‑‑There was a period – I can’t remember exactly – I believe actually it may have been in May and it was for a period of over three weeks.
And you did it for three weeks. Taking them to ‑ ‑ ‑?‑‑‑I picked them up on a Monday, dropped them off on the Friday and they missed the Wednesday. And I picked them up again the following Monday and dropped them off on the following Friday and then on the third week I picked them up on the Monday and dropped them off on the Wednesday.
So they didn’t go to pre-school ‑ ‑ ‑?‑‑‑There were two Wednesdays where they didn’t attend pre-school and those are the two days that I paid for the pre-school fees.
But you didn’t take them. You chose not to take them those two Wednesdays?‑‑‑I didn’t choose to. It was – that was a negotiation in consent orders that were done on the contravention that they were to spend the five days with me.
Well – but it was your decision not take them to pre-school?‑‑‑It was by consent. In the consent orders on 14 April that that was what we were going to do.
And the reason for that is that it’s pretty difficult to get them to – well, it’s difficult to get them to pre-school from [southern Sydney], wasn’t it?‑‑‑I haven’t found it difficult. The main reasons for that was that the mother wanted to see the children in the middle of that period of time and she also brought [L] down to me in the middle of that time on that Wednesday. So instead of taking them to the pre-school I spent some time with [L]. She spent some time with the twins.
And if, in fact, the court allowed Ms [Adams] to relocate to Cairns have you thought about how you might propose – or how that might work for you?‑‑‑Of course I have. I’ve had to consider it.
And what do you think might work for you?‑‑‑That she stays in Sydney.
With the children – that’s the only thing that will work for you. That she stays in Sydney?‑‑‑I think that’s what’s best for the children, yes. I’m not really looking at what’s working for me or for the children’s mother. I’m looking at what is best for the children.
But you have looked at what works for you, haven’t you? That’s the way you have conducted your life, isn’t it, Mr [Randall]?‑‑‑I’m – at the moment I’m living in [southern Sydney] because I’ve found cheap accommodation that I don’t have to buy any furniture for, living with a friend of mine who gets on well with my children. That’s not easy for me because I do have to travel up to see the children.
As it was raised by the father is it necessary to also refer to the contents of the Family Report in this respect:
[The father] stated that he is planning to continue living in [southern Sydney] and May (sic) on the longer term move closer to where [the mother] is living. He added that at present he considers it important to secure some geographic distance between their two households…(paragraph 10)
…
[The father] stated that the distance between Sydney and the Central Coast is not ideal in terms of him spending time with the children but safe given [the mother’s] reaction to him and her desire to keep such a close watch on his life… (paragraph 20)
…
…The nature of [the father’s] work and the geographical distance that separates the parties make it difficult for him to spend time more regularly with his children. Whilst it is understandable that he would want to draw some boundaries around his living arrangements to secure a physical separation from [the mother] given the history since separation, this does have the disadvantage of him accessing the children… (paragraph 44)
There are no references in the family report to the twins commencing school nor recommendations for arrangements after they begin school. It was recommended by Dr V that the children’s “changeovers occur in a neutral venue preferably at the preschool”.
In addition, it is submitted that the Federal Magistrate erred in failing to consider the father’s ability to travel to Cairns, or even relocate to Cairns. It was submitted that this is especially so given the father flies to Cairns during the course of this employment.
The mother made further reference to her affidavit filed 9 August 2010 whereby she explained her anticipated financial position in both the Central Coast and Cairns areas. She submitted that her evidence does not support his Honour’s finding that “[t]here is no evidence that she would be better off financially in undertaking such a move.”
As to the Federal Magistrate’s finding that the mother would not have the support of extended family in Cairns, the mother submitted the finding was contrary to her evidence, as the maternal grandmother had said that she could come to Cairns. The mother also explained that she would have the support of a friend in Cairns. In her submissions to us the mother emphasised the support she believed would be received from friends in Cairns and that she felt she had “no life” where she is currently living.
In her written submissions the mother also expressed concern that the children’s relationship with her eldest son B was not afforded sufficient weight.
In concluding her written submissions on this ground the mother stated:
16.The orders made by the Federal Magistrate operate so as to tie the Mother to the Father’s work and living arrangements rather than focusing on the best interests of the children.
17.In this respect, the Federal Magistrate appears to have misconstrued the judgment of the High Court in MRR v GR (2010) 240 CLR 461; [2010] HCA 4.
In our view there is merit in the mother’s submissions in this respect.
In relation to ground 1 counsel for the father submitted that the mother failed to set out in either her notice of appeal or submissions the provisions of the Act or the Family Law Amendment (Shared Parenting Responsibility) Act 2006 that the Federal Magistrate is said to have applied erroneously. As the mother appears for herself and sufficiently articulated the basis for this ground of appeal we are not concerned about the absence of elaborate references to the Act.
As to the mother’s assertion that his Honour failed to consider the impact of P and E commencing school in 2012, counsel for the father submitted that the Federal Magistrate did consider that factor which can be seen at paragraph 136 of the reasons:
Dr [V] also recommended that changeovers occur “in a neutral venue preferably at the preschool” and that in the longer term such changeovers occur at the children’s school. The Court agrees. If a child or the children were not at pre-school, or school, for whatever reason, then changeovers should continue to occur at McDonalds, …, subject to agreement between the parties as to another venue.
It was conceded by counsel for the father that this is the only reference in the reasons to the children attending school.
It was argued by counsel for the father that the mother has not explained how the children’s commencement of school in 2012 relates to her ground of appeal as articulated in the amended notice of appeal. We do not accept that contention as it is clear that the practical considerations are considerable for all three children.
The same argument was submitted on behalf of the father in response to the mother’s submission that his Honour took “an unforgiving attitude” towards her and his Honour’s finding that her proposal was for lifestyle reasons.
As to the mother’s contention that the essence of the Federal Magistrate’s dismissal of her application to relocate appears in his Honour’s finding at paragraph 78 of the reasons, counsel for the father submitted that “it is not credible to suggest” that paragraph 78 is “the essence” of the Federal Magistrate’s decision. Again, although this is a long judgment this paragraph appears central to the reasons.
Counsel for the father submitted that his Honour did consider the father’s ability to travel to Cairns and his ability to relocate there. It was said that such consideration is found in paragraphs 76 and 77 of the reasons, as repeated in paragraph 46 of these reasons. In summary, that possibility was discounted due to the father’s current employment, his earning capacity, the restrictions imposed by his employment, the father’s need for accommodation in Cairns, the age of the children and their ability to travel unaccompanied and the effect that such a move may have on the mother’s child support entitlement from the father.
On behalf of the father it was submitted that “[i]t is self-evident that parenting orders operate so as to accommodate the work and living arrangements of the parents. If the Children were permitted to relocate to Cairns, one would imagine that the Father should make a similar complaint”.
In our view the Federal Magistrate sufficiently considered the alternative of the father moving to Cairns. Proper reasons were expressed for rejecting this option.
Although we accept that the Federal Magistrate did adequately consider the alternative of the father moving to Cairns, we do not consider he provided sufficient reasons about the difficulties involved in implementation of the time sharing arrangement after the children commence school. More importantly, we do not consider the Federal Magistrate gave proper consideration to the provisions of s 65DAA(2)(d), s 65DAA(5) and s 60CC(3)(e).
Those relevant sections of the Act provide:
Section 60CC - How a court determines what is in a child’s best interests
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
…
(3)Additional considerations are:
…
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
…
Section 65DAA - Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
…
Substantial and significant time
(2)Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
To appreciate the force of these provisions we have set out the relevant parts of the legislation. The effect of these provisions was explained by the High Court in MRR v GR (2010) 240 CLR 461:
7.Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
(Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”. (footnotes omitted)
As the High Court said in MRR v GR:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
A practical assessment in this case reveals that while the father and mother are living at their current residences, the orders are not practical for any of the children, when the twins begin school.
As was said in Palmer & Hammer (No 2) [2011] FamCAFC 196, the ideal is not always practical:
44.In relation to the alleged inconsistency between his Honour’s finding and the ultimate orders, the simple answer is that although the ideal is to put in place orders that will provide substantial and significant time, the practical ramifications may make that impossible.
The terms of paragraph 79 of his Honour’s judgment, which we have earlier set out, imply that he did not find that the father would move from southern Sydney to a place closer to where the mother was living. There was conflict in the evidence before his Honour as to the father’s intentions in that regard. That conflict remained unresolved. As the evidence before the learned Federal Magistrate which we have also earlier set out made clear, the distance between the parties’ places of residence was pivotal to the practicability of the father’s proposed arrangements, particularly after the children commenced school. If the father were to remain living in the southern Sydney area, the practicality of his proposed arrangements for the children would clearly be problematic. With all due respect to the learned Federal Magistrate, determining the practicability of the father’s proposals required him to make findings of fact in relation to where the father would be living. His Honour’s failure to do so vitiated the exercise of his discretion. In the absence of a finding that the father would move closer to where the mother was living, his Honour could not reasonably have found on the evidence before him that the father’s proposals would be reasonably practicable once the children commenced school.
In our view the mother’s appeal against the children’s orders should be allowed on this ground.
Ground 2
Ground 2 provided that the Federal Magistrate erred in determining the issue of relocation by considering only the father’s present work arrangements, rather than the best interests of the children and the reasonableness of the father changing his work arrangements.
The mother in her written submissions explained:
There is considerable practical difficulty in the present arrangement, caused by the time being dictated by the Father’s roster. The roster is monthly and the Father usually sends it on to the Mother about a week before it is due to commence. At times the roster is changed on short notice, that having happened twice this year. The roster is written in code, is hard to decipher and even the Father in cross-examination struggled to make total sense of it…This creates a punishing and unpredictable schedule on a Mother with three small children.
The mother submitted that his Honour did not consider a situation whereby the father’s work arrangements may change and where relocation of the father may be necessary “thereby disrupting the present arrangements but tying the Mother and the children to Sydney”.
For the mother, there was no evidence before the Federal Magistrate to support a finding that the mother relocating to Cairns would reduce the children’s time with the father and extended family.
Counsel for the father submitted that neither counsel for the mother at trial, or the mother on her own behalf in her written submissions on appeal, contended that the court should be aware of the “reasonableness or not of the father’s ability to change his working arrangements”.
In addition, it is said that the mother’s submissions “do not point to any evidence of a likelihood of the [father] being able to “change his working arrangements”. Counsel submitted that the Federal Magistrate cannot be expected to accommodate an alleged ability to modify his working arrangements on which he has not been addressed.
There is considerable force in that submission. We do not find validity in this ground.
Ground 3
This ground asserted that the Federal Magistrate erred in his consideration of the reasonably practicability of the arrangement by not assessing the extent of the parties’ capacity to communicate and their approaches to parenting.
The mother conceded that there have been issues between the parties, however she referred to Dr V’s statement that the children could not have developed the relationship they have with the father without the support and encouragement from the mother.
Counsel for the father submitted that the mother’s arguments under this ground of appeal do not reflect the ground, and if so, do not demonstrate error.
Counsel for the father submitted that when the reasons of his Honour are read in context it can be seen that the Federal Magistrate clearly contemplated the communication difficulties and differences between the parties. Furthermore, it is submitted that “[i]ndeed the communication difficulties and parenting differences appear to (sic) largely persuasive in his Honour finding that substantial and significant time was practicable in the relief ultimately ordered”.
In our view the ability of the parties to communicate is merely one matter to be taken into account (s 65DAA(5)(c)). The Federal Magistrate was clearly mindful of this consideration. Our concern is that the Federal Magistrate does not appear to have given consideration to all of the matters contained in s 65DAA(5).
Ground 4
Ground 4 provided that his Honour erred in determining the issue of relocation in failing to consider or adequately consider the impact of the mother’s circumstances and general quality of life on the children’s best interests.
In addressing this ground of appeal the mother, in her written submissions, relied on the submissions made by her under ground 1.
The mother explained under this ground that she was unable to work, not only due to the young age of the children, but also due to the fact that she has to make the children available in accordance with the father’s work roster demands.
It is submitted on behalf of the father that the Federal Magistrate “clearly took into account the Mother’s material circumstances at paragraph 78…of the judgment”. Reference was also made to paragraph 41 of the judgment where his Honour referred to the cross-examination of Dr V by counsel for the mother at trial.
In our view the Federal Magistrate appreciated the evidence in this regard and properly took it into account. This ground is not established.
Ground 5
This ground asserted that the Federal Magistrate erred in not having regard to the long term parenting arrangements and the best interests of the children given the father’s history of relocations and the possibility that he will leave Sydney or given that both parties may leave the Central Coast or Sydney area.
In addressing this ground counsel for the father referred to the submissions advanced by him under ground 2.
Further it was said:
…His Honour can only be expected to deal with the evidence that he has to hand and the competing proposal of the parties. From that his Honour crafts orders that are in the best interests of the Children. His Honour cannot be expected, given the vast amount of considerations already thrust upon him, to craft a host of orders to deal with every possible variation in the circumstances of the Father and/or Mother.
Whilst there is much force in these submissions, the difficulty as we see it is that the father remains living at southern Sydney, the evidence in this respect was uncertain and it is not apparent from the reasons how his Honour was able to conclude that these complicated orders were in the children’s best interests.
Ground 6
Ground 6 provided that his Honour erred in discharging the “watch list” order given the father’s occupation and the poor relationship between the parties. We have already referred to this in paragraph 33 of these reasons.
The mother in her written submissions asserted that the removal of the children’s names from the Airport Watch List was not reasonable given the father’s occupation and his threat to leave the country to work overseas.
Counsel for the father explained that neither counsel for the mother nor he made submissions at trial addressing the Airport Watch List issue. It was also submitted that the mother did not give evidence expressing her concern as to the father’s occupation or the possibility of him abducting the children.
In any event his Honour incorporated a mechanism for the possession of the children’s passports so as to circumvent this possibility.
In our view there is no proper basis for this ground. The previous order being interim in nature, together with the absence of evidence or submissions about this matter, properly led to no orders being made. The mother was unable to persuade us that there was any reason why such an order should have been made.
Ground 7
This ground provided that the Federal Magistrate erred in failing to consider the mother’s future need to house the children and herself in determining the factors to be considered pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
Although this ground of appeal, and the submissions, referred to s 75(2) (which falls in Part VIII of the Act), the parties were not married and hence the property issue fell instead to be determined pursuant to Part VIIIAB. The equivalent provision to s 75(2) in Part VIIIAB is s 90SF(3). The Federal Magistrate was alert to this, as can be seen from our recitations from his reasons in which he was careful, when referring to s 75(2), always to do so within quotation marks. Nothing turns on the minor differences in wording between the two subsections.
The mother submitted that the property settlement orders will not give her sufficient funds to rehouse the children in either the Central Coast or Cairns. This is undoubtedly correct.
It was submitted by counsel for the father that the mother’s own counsel at trial failed to specifically mention the future need to rehouse in her own submissions, because her submissions were limited to the following:
So, in my submission, the mother, having these very small children, should have 20 per cent in section 75(2) factors in respect of the children, and 10 per cent for her own inability to work.
Irrespective of the mother’ submissions the father submitted that his Honour was cognisant of the need to rehouse when he referred to the “modest size of the net property pool and the reality that the Mother will be assisted by spouse maintenance in the sum of $200 per week”, to commence upon the sale of the F property.
In concluding the father’s written submissions on this ground counsel submitted “that there is nothing unreasonable or plainly unjust in relation to his Honour’s findings and adjustment”.
The reality is that there is a very small pool of property and it was a short relationship. The findings of the Federal Magistrate in relation to contributions are not challenged nor could they be. The question is whether his Honour’s assessment of the relevant s 90SF(3) factors was correct and whether the percentage allocated was within the range of orders within a properly exercised discretion.
As mentioned earlier, even though there were no submissions made directly about the mother’s ability to house herself, his Honour considered the matter and properly rejected the mother’s application. Although his Honour could have ordered that the mother receive the whole of net proceeds of sale of the house this would have the effect that despite the father’s substantial direct financial contribution he would receive nothing of the non-super assets apart from minor household items and a small amount of cash. It would be difficult, we think, to conclude that such an order is just and equitable. The approach taken by his Honour was correct, the orders fall within those properly within his discretion. We would not allow the appeal in relation to the property orders.
Conclusion
In view of the circumstances of this case we are of the view that the appeal should be allowed in part.
The challenge to the orders relating to the mother’s wish to relocate with the children has three major obstacles. The first is the evidence of the expert family report writer, Dr V. The second is the mother’s own reasons for wishing to move. The third is the practical consequences for the parties’ very young children.
Despite this, in our view, the orders for time with the father, especially when the twins commence school appear quite unworkable. If the father moved closer to where the mother is living then the arrangements may be more satisfactory for the children, but in our view the state of the evidence before the Federal Magistrate was so uncertain those orders should not have been made.
We have considered an alternative to the appeal being allowed, that the mother file further proceedings which might be heard before the children commence school. In our view, that is not a satisfactory alternative for a number of reasons including:
·It places, in effect, the onus on the mother to demonstrate why the orders should be altered (a Rice & Asplund (1979) FLC 90-725 argument);
·Such a hearing may create an artificial situation where the children’s time with the father is considered in isolation, whereas the whole of the parties’ proposals, including the mother’s application to move, may need consideration.
As to the property appeal it cannot be said that the Federal Magistrate wrongly exercised his discretion in this respect.
Costs
At the conclusion of the hearing submissions as to the costs of the appeal were heard.
As the appeal is to be allowed, albeit in part, there is justification for an order for costs.
As the appeal against the parenting orders has succeeded as a result of an error of law we do not consider it appropriate to make an order for costs against the father. Both parties sought cost certificates for the appeal and for the re-hearing in the event the appeal succeeded and the matter was remitted. We consider this is appropriate.
Although the appeal against the property order will be dismissed, this was the minor element of the appeal. Given the mother’s financial circumstances we do not consider it appropriate to order that she pay the father’s costs of that part of the appeal.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Thackray JJ) delivered on 14 October 2011.
Associate:
Date: 14 October 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Relocation
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Parenting Orders
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Costs
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