Aiken and Aiken
[2011] FMCAfam 910
•5 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AIKEN & AIKEN | [2011] FMCAfam 910 |
| FAMILY LAW – Interim parenting – relocation – children’s views – children’s involvement in proceedings – separation of siblings – relevance of International Treaties and Conventions – meaningful relationship with parents. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 60I International Convention on the Rights of the Child Universal Declaration of Human Rights International Convention on Civil and Political Rights Evidence Act 1995, s.131 |
| Deiter & Deiter (2011) FamCAFC 82 MMR & GR [2010] HCA 4 Morgan & Miles [2008] 38 FamLR 275 Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 Minister of Ethnic Affairs v Teoh [1995] HCA 20 Mabo v Queensland [1992] HCA 23 B & Band Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621 AMS & AIF (1999) FLC 92-852 Dylan & Dylan [2008] FamCAFC 109 C & S [1998] FamCA 66 Mazorski & Albright [2007] FamCA 520 Button & Lo Criccio [2010] FamCAFC 87 Schmidt (1979) 5 FamLR 42 Archbold (1984) FLC 91-532 Bennett (1991) FLC 92-191 Harrison & Woollard (1995) FLC 92-598 ZN & YH [2002] FamCA 453 R & R: Children’s Wishes [2002] FamCA 383 “The Primary Parenting Presumption: Primarily Meaningless” Richard Warshak |
| Applicant: | MS AIKEN |
| Respondent: | MR AIKEN |
| File Number: | PAC 3300 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 5 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hazelwood |
| Solicitors for the Applicant: | Anderson Boemi Lawyers |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Dawn Saxton & Associates |
ORDERS
Pending further order, that each of the parents of each of the children, [X], born [in] 1995, [Y], born [in] 1997, and [Z], born [in] 1999 shall have equal shared parental responsibility for them.
That pending further order that [X], [Y] and [Z] shall spend time with their father:
(a)each alternate weekend during school terms commencing 5 August 2011 and from the conclusion of school Friday until 5 pm Sunday (extending to Monday for long weekend or pupil free day);
(b)for a period during the September/October 2011 school holidays from 5 pm on the first Friday of the holidays, which is not the day school breaks up, the first Friday in the middle, until 5 pm on the last Sunday of those school holidays;
(c)for the Father’s Day weekend in the event that [X], [Y] and [Z] would not already be spending time with their father and for the same period as occurs for weekend time;
(d)such further and/or other periods as agreed between the parents from time to time.
Pending further order, that [X], [Y] and [Z] shall spend time with their mother at all times other than when spending time with their father.
That pending further order, each parent:
(a)shall keep the other advised at all times of their residential address, landline telephone number, mobile telephone number and email and/or Skype account address and shall advise the other forthwith and if possible to the change of any change of details;
(b)shall do all things, sign all documents and give all consents and authorities necessary to enable each parent to be included on the children’s school enrolment records as a parent and emergency contact person and to enable each parent to obtain all and any documents, correspondence or information as they wish from that school or any individual person at the school and to attend all and any events at any of the children’s schools to which parents are invited or encouraged to attend;
(c)advise the other forthwith and contemporaneous with the event of any significant illness, specialist medical treatment or hospitalisation required by or relating to any of [X], [Y] or [Z].
For the purpose of [X], [Y] and [Z] passing into their father’s care, that their father, or his nominee, shall collect them from their schools if a school day, or from McDonald’s [suburb omitted] if not, and shall return them to McDonald’s [suburb omitted] at the conclusion.
For the purpose of the children passing into their mother’s care, she or her nominee shall collect them from McDonald’s [suburb omitted] and return them to the same venue at the conclusion of her time.
IT IS NOTED that publication of this judgment under the pseudonym Aiken & Aiken is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3300 of 2011
| MS AIKEN |
Applicant
And
| MR AIKEN |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications on both an interim and final basis with respect to three young people, [X], [Y] and [Z], who are the very much loved children of the parties to these proceedings, Ms Aiken and Mr Aiken, their parents.
Before the Court at the time of judgement are each of the parents and their Counsel and with the consent and agreement of each parent their eldest child [X] who is 16 years of age. Leave has been granted for him to be present and arising not only from his age but his statement to the Family Consultant, who these young people have seen this morning, that he “wants to have the reasons for the decision explained” to him. That would appear entirely appropriate having regard to both his age and level of understanding and consistent with the obligation created by Article 12 of the International Convention on the Rights of the Child being:
Article 12
a)States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
b)For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The proceedings, when commenced, also included financial issues but the parties, to their great credit and that of their Counsel, have resolved those issues today and I have earlier made orders by consent which disposes of those issues. That then leaves for determination, on an interim basis, issues with respect to parenting for these three young people.
The circumstances which give rise to these proceedings are not so much the relatively recent separation of these young people’s parents, but the very recent move by Ms Aiken with the three children to [U].
The parties had separated on 29 September 2010, initially under the one roof and following a period during which that arrangement subsisted and in early to mid February 2011, Mr Aiken left the then matrimonial home at [S] and which, as a consequence of Ms Aiken having now also left that property, is vacant, listed for sale and to be sold.
The parties’ competing applications on an interim basis seek essentially mirrored arrangements.
Ms Aiken’s desire is to continue to live with all three of these young people in [U] where she is living at the home of her parents. Mr Aiken would seek that all three children return to the [P] area to either live with their mother should it be that she returns, (although at that point, I note the Full Court has been clear in authorities such as Bennett & Bennett (1991) FLC 92-191, that this Court has no power to direct a grown-up where to live), or, alternatively, if Ms Aiken does not wish to return with the children to the [P] area, that the children return nonetheless and that they then reside primarily with him.
Each parent proposes that the children would spend alternate weekends and school holiday periods with the other parent, as well as other arrangements that might be put into place either by agreement, in relation to additional time, and/or communication by telephone, email and other internet based facilities.
The material filed by the parties has come on at short notice and certainly does not tell the full tale, which no doubt and in due course each parent will wish to place before the Court.
The proceedings were commenced by Ms Aiken by application filed on 21 July 2011 being only a little over two weeks ago. A response has now also been filed having been filed on 29 July, no doubt its speedy filing aided by Mr Aiken’s evidence that he was, when served with
Ms Aiken’s application, in the process of commencing proceedings.
The matter came before the Court on 3 August and on that occasion the Court was not able to accommodate the matter due to other commitments. However on 3 August, orders were made for the parties and their children to attend with a family consultant, Ms D., for a child-inclusive child dispute conference.
That conference occurred earlier today and an informative and helpful memo by Ms D. has been prepared. That course had been taken, not purely as it was available or seen as a second prize for the parties when they could not be reached on 3 August, but because of the ages of these young people.
As I have indicated, [X], the eldest of these children and who is present in court for the purpose of hearing these reasons and as they will profoundly affect his welfare, is aged 16 years and four months of age. [X]’s younger siblings, [Y], who is 13 years and 11 months of age, and [Z], who is 12 years and six months of age, are not present in court for these reasons, but no doubt, will be made aware of them fully by their parents and/or by their elder brother.
What is striking from the child dispute conference memo is the love and affection that these three young people hold for each of their parents and even more importantly, for each other. Without having previously met any of these children, although having now met – albeit from a distance – the eldest of these young people, [X], they are quite clearly delightful, pleasant and sensitive young people.
It is regrettable for them, no doubt, that their parents’ relationship has ended as it has. At their age they are fully cognisant of what that means, not only for them, but for their parents.
The material that has been filed by each of the parents has been read by me, together with the child dispute conference memo. I am anxious also to ensure that this matter moves forward to a speedy conclusion and to that end, each of the parties has indicated that if the Court can make time available in November of this year, being some three months hence, that they will also ensure that they are available and prepared and ready to run the case on a final basis.
Factual background
The parents were married [in] 1994 and as I previously indicated, separated under the one roof during September 2010.
In October 2010, correspondence first began to pass between the parties’ lawyers and portions of that material is annexed to each of the affidavits.
In November off 2010 the former matrimonial home at [S] was listed for sale. At that point, both parents still lived in the home with these children.
During the Christmas school holiday period arrangements were made between the parents for these young people to spend time with each of their parents and indeed, extended family. The consequence of that is that from Boxing Day until New Year’s Day, Mr Aiken had all three children with him and undertook a holiday in [omitted]. For most of the remainder of the school holidays, the children spent time either with their mother or with their mother at the home of her parents, or with the maternal grandparents at their home at [B].
In early February 2011 attempts were made to arrange family dispute resolution which did not ultimately progress. A certificate has been filed in that regard.
In light of developments in this matter and the issues now in dispute between these parents (regarding a relocation of the children to [B], some four hours away from the [P] area where Mr Aiken continues to live), I do not propose, as section 60I might otherwise envisage, to adjourn the proceedings whilst the parties attend family dispute resolution. Circumstances have overtaken that opportunity.
As I have otherwise indicated in February an incident occurred between the parties which, to his credit, is disclosed by Mr Aiken in his material and as a consequence of that it would seem that an apprehended domestic violence process was commenced. In any event, Mr Aiken left the home and has lived away from the home since that time.
The Apprehended Violence Order proceedings came to nought and ultimately, were either discontinued or withdrawn.
For the majority of time since leaving the home at [S], Mr Aiken has lived in rental accommodation at [omitted], a suburb of [P], and he continues to do so. He has lived in that accommodation since March of 2011 and from his material, clearly proposes to remain there.
Mr Aiken is in full-time paid employment, running his own business which is situated at [omitted], some little distance from [P], but which he travels to each day. Ms Aiken was, until quite recently and until, in fact, the last school holidays in July of 2011, living at the home at [S] and engaged in employment with the [omitted] at [P].
Ms Aiken has now resigned from that employment as a consequence of her desire and then her move to [B]. The move is suggested by
Ms Aiken to have been precipitated by financial circumstances more than anything, but also contributed to by a number of other factors, including her desire to have the support not only financially, but emotionally, of her parents.
The financial issues between the parents, and indeed, Ms Aiken’s desire to relocate to [B] would appear to have been a matter current between these parties since at least the earlier part of March 2011 when correspondence between the lawyers then engaged by each of these parents commenced.
The first correspondence of 11 March 2011 itemises the expenses that are met on a weekly basis by Ms Aiken and pleads, in conclusion, that in the absence of receiving a specific amount of weekly additional support from Mr Aiken that she was no longer able to continue to live in Sydney. It would appear, although it was not attached to Ms Aiken’s material but has been attached to Mr Aiken’s material, that some response was provided. Certainly the invitation to provide further financial assistance was not taken up, but ultimately, little else was heard about the issue until quite recently.
In late May 2011, the youngest of these children, [Z], fell ill, and regrettably he experienced a period of hospitalisation at the Children’s Hospital at [omitted], some real distance from where these parents were both living. Ms Aiken indicates that she then stayed at the hospital with her son, for all of the period 31 May until 14 June 2011 when he was discharged, save for one day. Upon being discharged it seems that [Z] then went to the home of, and was cared for by, the maternal grandparents and stayed there from 20 June 2011 until 8 July before returning home to [S].
There is some contention and controversy between these parents as to whether that was an agreed, or if not agreed, an acceptable arrangement, particularly as it interfered with the arrangements that were in place for the care of these children by and between their parents.
What is particularly germane to the decision I am called upon to make today – which I hasten to add is made all the more difficult by the fact that both of these parents and their children are clearly pleasant and intelligent human beings – is that the care arrangements since the early part of 2011 at the very latest, and certainly since shortly after vacating the home at [S], has been that the children spend a week about arrangement with each parent.
It is asserted by Ms Aiken in the brief material that she has filed that she has attended to the majority of daily care for the children during the relationship.
During submission by counsel, a number of references have been made to other arrangements for these children and young people, being of an age clearly where their reliance upon, and emotional dependence upon their parents, is waning. There are no doubt a great many other people, what is referred to in literature by authors such as Warshak and others as “social capital” for these children, who are important to these young people in terms of their school, extracurricular activities and peer groups.
What is also clear is that whilst both parents are agreed that there has been some difficulty and delay in finding a buyer for the matrimonial home, having been listed for sale for some time, that ultimately, the sale will occur and Ms Aiken would then be leaving that home and moving somewhere, whether within [S], within the [P] area of anywhere else. Perhaps, to some extent, the issue that has arisen through Ms Aiken’s actions in July 2011 are actions that needed to be addressed, at some point and in any event, as they were inevitable.
The move to [B] has come at the cost of the week about care arrangement that had subsisted between these parents for some little time. That is an arrangement that certainly, in the absence of any suggestion or criticism that it was not working or meeting these children’s needs, would appear to have been agreed by both parents and would appear to have been functioning to everyone’s benefit. That is not to suggest that other difficulties and issues did not exist, particularly the financial issues that Ms Aiken has referred to.
It would appear clear, from the material that is annexed to Ms Aiken’s material, that the week about care arrangement was initially suggested by her and the correspondence from her then solicitors, being a different firm to those presently acting, had proposed, as early as
29 October 2010 when these parents were still living separately and apart under the one roof, that there be a week-about care arrangement.
I pause to add, at this point, that the annexure of that correspondence to the material, whilst it has been informative and has not been objected to, would otherwise appear to clearly infringe s.131 of the Evidence Act although it may well be argued that one of the exceptions applies in the context of this case.
The move to [B] is suggested, in Mr Aiken’s case, to have been a severe disruption to these children as well as to the care arrangements that were in place. It is also suggested that it reflects poorly upon
Ms Aiken being a unilateral determination by her in ignorance of that which flows from the Family Law Act’s definition of what is meant by equal shared parental responsibility. There is some validity to that criticism. However, the move is not entirely out of the blue. Clearly it was a decision that was made by Ms Aiken alone but it was a decision that was flagged. What was also flagged, however, was Mr Aiken’s clear objection.
The issue that I am called upon to deal with today, will be for limited duration. That is some significance, perhaps, in light of the Full Court’s comments in Deiter & Deiter (2011) FamCAFC 82 wherein the acting Magistrate, in that case, was castigated for not having given any consideration to the likely duration of an interim arrangement pending a final determination of the proceedings. That case is otherwise distinguished in a number of respects, the most notable of which is, perhaps, that the primary thrust of the appeal in that decision was the failure by the acting magistrate to give due weight and consideration to issues of family violence which clearly are absent in this case. To the extent that they have been raised at all, by reference to the short-lived interim apprehended domestic violence proceedings, they have been disclosed by Mr Aiken.
The Full Court in that decision also found fault in the reasoning and logic of the acting magistrate, particularly as it was observed that he had not paid any particular attention to practical considerations as the High Court had importantly identified and prioritised in MMR & GR [2010] HCA 4 as well as having referred to the decision of Boland J in Morgan & Miles [2008] 38 FamLR 275 but without then following the rationale of that decision. Indeed, Morgan & Miles has been a substantial issue raised by each of the parents are regards the approach that should be adopted in this case. Her Honour had delivered a most timely and succinct discussion of the principles applicable to relocation.
Her Honour, commencing at paragraph 72 of that judgment began a discussion as to the approach that should be adopted and as has ultimately been accepted by the Full Court post 2006 amendments.
Her Honour, at paragraph 79 gave check list of matters that the Court might consider being as follows:
In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration [Echoing the judgment of Kirby J in AMS & AIF (1999) FLC 92-852]
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
Counsel for Ms Aiken has specifically referred to provisions of the International Convention on the Right of the Child. Certain portions of the convention are incorporated within our domestic law and reflected in the objects and principles set out in s.60B. The balance of the convention is still relevant to informing the decision-making process of this Court and the interpretation and application of the legislation see Minister of Ethnic Affairs vTeoh [1995] HCA 20, Mabo v Queensland [1992] HCA 23 & B&B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621.
Her Honour continues:
“If making a parenting order or proposing to make an order apply the presumption, unless excluded by reason of abuse or family violence or rebutted in the best interests of the child that the parents have equal shared parental responsibility.”
Neither party has argued, in this case, that the presumption can or should be rebutted or that it does not apply. Certainly there is nothing in the evidence that would support a finding that this was so.
Next:
“In making an order for equal shared parental responsibility have regard to the fact there is no distinction drawn under the Act between interim and final hearing although such an order may not, in specific cases, be made on an interim hearing.”
Therein lies one of the great difficulties in a case such as this. Counsel for each of the parties has been clear in referring to her Honour’s comments elsewhere in the judgment that the Court should be reluctant, on an interim basis, where there is limited evidence which is not tested, to hasten too quickly. However, I am satisfied certainly that a determination needs and must be made in this case as otherwise arrangements will simply be left to be determined, one would hope by agreement, but absent agreement, by unilateral action or a series of unilateral actions.
That would be most regrettable, destabilising for both parents and these children, damaging to their ability to effectively parent and to cooperate and communicate and it would be entirely contrary to these children’s best interests. The Court cannot abrogate its responsibility under s.60CA to treat the child’s best interests as the paramount consideration at all times. And accordingly, and for the limited period before a final determination, a decision can, must and will be made today.
Next:
“In making an order for equal shared parental responsibility the Court must have regard to the fact there is no distinction drawn with respect to interim and final proceeding.”
As I have indicated, and regrettably, as was made clear in Goode & Goode (2006)FLC 93-286 and subsequently Marvel & Marvel [2010] FamCAFC 101, the same legislative pathway must be followed irrespective of interim or final determination and notwithstanding that the evidence is untested at this stage and far from complete.
Next:
“When dealing with an application involving an interstate or international relocation of a child, may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility if it is impractical for the parties to equally share.”
That is not a circumstance in this case.
Next:
“The Court will carefully weigh and balance the primary considerations and the additional considerations.”
At that point I pause to observe the comments of Carmody J, as he then was, in Dylan & Dylan [2007] FamCA 842 that the additional considerations both inform and speak to the primary considerations but also stand alone and can assume importance of their own which individually, or collectively, outweigh the primary considerations.
Her Honour went on:
“Depending on factors such as the age of the child, the wishes of the child [being language not contained within the Act which speaks, of course, of views and maturity] the relationship between the child and the parent, the proposals of the parties or the proposal found by the judicial officer to be in the child’s best interests make such order which may provide that the child lives with the parent who wishes to relocate and spend time and communicate with the other that the child live with the non-relocating parent, that the child live equally with the parents in an existing locality or lives with one parent and spends substantial and significant time with the other or that the non-relocating parent move to the venue chosen by the relocating parent.”
Neither party has, in submissions or in their material, addressed the possibility of Mr Aiken relocating to the [B] area near [U]. However, I can infer from his material that this is certainly, in the short term, an impossibility. He has a residential lease, one would presume of some duration still to run, but more importantly has a business that he runs and he would not be able to run from [B]. It would be financially ruinous to him and through him, at least indirectly, both parents and these children for that to be the case.
Her Honour concluded:
“Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case but developing law should provide general guidance.”
Her Honour then went on, in paragraph 80, to articulate the core principles of determining any relocation case which is, after all, and in essence, simply a parenting decision under Part VII. Her Honour highlighted those core principles as the child’s best interests remaining the paramount but not sole consideration, that a parent wishing to move does not need to demonstrate compelling reasons although her Honour’s decision and subsequent decisions by the Full Court have made clear that reasons can be of some relevance in understanding the factual matrix of the case and giving some meaning to actions that have occurred.
Next:
“That a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests and the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.”
Discussions of a parent’s right or freedom of movement are often mired in the somewhat artificial language of constitutional law and by particular reference to s.92 of the constitution dealing with the right of free intercourse and trade between states.
Perhaps a more direct path can be found particularly bearing in mind the case law to which I have referred, Teoh, Mabo, B&B & Minister for Immigration, by using international covenants and treaties to inform decision-making as certainly the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and other instruments provide for the right of free movement of a citizen within the jurisdiction in which they live.
As a parenting case I am required to follow the legislative pathway of commencing by considering the objects and principles and then considering the presumption under s.61DA, if the presumption applies, as it clearly would in this case, and to then consider s.65DAA and consider in turn, equal and substantial and significant time before considering other time arrangements.
In that determination I am required to have regard to the dual tests set out in s.65DAA(5), as to reasonable practicality, as well as s.60CC. I am reminded by s.60CA that in all that the Court does, whether practically, procedurally or substantively, that the best interests of the child must be, are and remain the paramount although not only consideration.
In turning to those matters, quite clearly, and in the absence of
Ms Aiken seeking to or submitting herself to returning to the [P] area it is unlikely, or improbable, that any arrangement, other than an arrangement of the nature that each of these parents has sensibly proposed, (alternate weekend and periods during school holiday), could possibly operate for these children. A week-about arrangement would be completely impractical in those circumstances.
Ms Aiken does not propose that she is returning. That is, and by authorities quoted by counsel for Mr Aiken, in particular C & S [1998] FamCA 66, sometimes referred to as “holding a gun to the Court’s head”, to either allow the children to stay with the relocating parent, where they have relocated to, or remove them from her.
I am not satisfied, at least on what is available and to the extent that it can be inferred, that this is necessarily Ms Aiken’s intention but in any event, intention does little to ameliorate the fact that this is, to a large extent, the position the Court is put in.
Similarly, substantial and significant time would, absent one of these parents relocating to the area in which the other, and correspondingly the children reside, be practically impossible. Accordingly one is, regrettably left, with alternate weekends and school holiday arrangements. That is, as has been observed, a substantial departure from the arrangements that have existed in these children’s lives up and until the July 2011 school holidays.
Until February these children resided under the same roof with both of their parents and had done so for all of their life and between February and July, a period of some five months, had lived in a week-about shared care arrangement subject to the disruptions occasioned by ill health and the like referred to in the material and above.
Before turning to and considering s.60CC, I note that s.65DAA(5) does not confine itself to a consideration of logistical and practical difficulty when the Court is called upon to determine what is reasonably practicable. That is subparagraph (a). The Court is also required to consider the parent’s current and future capacity to implement an arrangement, including for an equal or substantial and significant time arrangement and the impact that this arrangement would have on the children. Each of those factors would vitiate against equal or substantial and significant time unless the parents live in relative proximity.
Importantly, the section also requires that I consider the parents current and future capacity to communicate and resolve difficulties. On one reading, one might, simplistically, consider that the fact that this matter is before the Court is suggestive of an inability by those parties to communicate and resolve difficulties. However, that is clearly not so. Notwithstanding the stresses and the high emotions that this issue has, no doubt, brought to bear upon each of these parents and from the Child Dispute Conference memo, abundantly clearly their children, they have resolved, today, property issues.
Those issues have been resolved in a commercially realistic fashion as neither party knows what future care arrangements will apply for their children but in light of their modest pool, that reflects glowingly upon their ability to act sensibly, insightfully, and to make appropriate decisions, including consensually with each other.
Also, these parents have, until the July holidays and Ms Aiken’s removal to [B], been able to make arrangements work between them and to put arrangements into place without recourse to the Court, without even the need for family dispute resolution. Indeed, that is what is asserted by Mr Aiken as the basis upon which family dispute resolution did not proceed, that there was already an arrangement in place and accordingly the Family Relationship Centre did not consider it necessary or appropriate.
In relation to s.60CC, I am required to commence by considering the primary considerations but the primary considerations are not the only considerations for the Court. The Court is required, in determining what is in the child’s best interests, to consider them first but they are not more important, necessarily, than the additional considerations; see as previously quoted Carmody Js decision in Dylan & Dylan.
The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm. Thankfully this is a case, regrettable not like all before the Court, in which there is no issue, no suggestion and no need to protect these children from anything in relation to their parents. These are both perfectly capable, caring and loving parents who no doubt are able to communicate with each other, their children and make arrangements work, whatever they may be.
The benefit to the child of having a meaningful relationship has been the subject of substantial discussion, including Brown Js decision in Mazorski & Albright [2007] FamCA 520 dissecting the meaning and nature of that phrase. It is also, in the context of relocation cases, the decision of comment in a number of cases, including, again, decisions of Brown J regarding international relocation.
There is no doubt in my mind, particularly from the child dispute conference memo, that these children presently enjoy an excellent and most meaningful relationship with both of their parents. What is clear is that something has changed, and on each parent’s proposal will remain changed and this has impacted upon the arrangements that were in place for these children’s care. But it is the arrangement that has been impacted.
These children enjoy an excellent relationship with each of their parents, a range of extended family members who have cared for them and assisted in before and after school care and the like, holiday care and other activities as well as, most importantly, each other. Again, by reference to the material that was raised with counsel during submissions, that which is referred to by Warshak and others as the children’s “Social Capital”. Principal amongst that capital, for each of these children, are their siblings.
The proposals that are put have some potential and if one were to make a decision based upon what, reluctantly, begrudgingly or otherwise, each of these young people have expressed to the family consultant, to lead to these children being separated. The child dispute memo makes clear that neither Ms Aiken nor Mr Aiken desire that outcome. Nor does the Court. It would not be something which would promote the best interests of these children having regard to the fact that they are already dealing with a series of changes in their life in what is a relatively short period of time in going from an intact family to a family separated under the one roof to a physically separated family and now to a family that is not only physically separated but will continue to have substantial distance between the children and a parent. They need each other and each other’s support throughout that process and it is again to the credit of each of these parents that they have recognised and understood that.
In dealing with the meaningful relationship that each of these parties have with each of these children and young people, I am struck by observations made routinely in this Court that the time arrangements which are talked about in s.65DAA (where there is equal, substantial and significant or any other time arrangement) are nothing more than a function of maintaining, developing and enhancing the children’s meaningful relationship with each of their parents.
Time and relationships are separate concepts. They are important to each other but they do not determine the other. The amount of time that each of these parents spend with their children at their ages and at a period in these children’s lives when time with their parents will soon become something that is not their primary concern is a function of the relationship they already have and a function of the relationship they will continue to have.
Put bluntly, if these children attended boarding school and saw their parents during school holidays, they would continue to have a meaningful relationship with each of their parents. Whether they continue in a week-about care arrangement or whether they, as inevitably it would appear will need to occur in light of the choices made by each of their parents regarding work and accommodation, live primarily with one parent and spend time with the other, they will still have a meaningful relationship. To that extent, I am satisfied that this is one of those cases that Carmody J envisaged where the additional considerations will, perhaps, have more importance than the primary considerations.
Also, in that regard, I note that the Full Court’s decision in Dieter, to which I have previously referred, as well as the Full Court’s decision in Button & Lo Criccio [2010] FamCAFC 87 make clear that the Court must, amongst other things, be conscious of determining between what would be an ideal arrangement and what would be a reasonably practical arrangement and also determining between a number of arrangements which will manifestly meet these children’s needs.
Whilst I have suggested that this decision is difficult in light of the delightful nature of all involved, it is also, in some respects, reassuring for the Court that no matter what decision is made, the Court can have every confidence that these children will be well parented, well loved, supported, not embroiled or enmeshed in adult issues and disputes, and allowed to get on with living their life as best as they can and with a healthy, loving, respectful relationship not only with each of their parents but between their parents.
Cases such as this are, regrettably, infrequent but it does make the decision more difficult because the arrangements that each of these parents sees and holds genuinely and deeply in their heart as best for their children means that one of them, inevitably, must be disappointed by the authority that this Court exercises and the discretion it utilises in determining parenting arrangements for them when they are not able to agree.
The children’s views
In turning to the additional considerations, they commence with a consideration of views expressed by these children and any factors such as their maturity or level of understanding which the Court thinks relevant to the weight that should be given to those views. In that regard, counsel for Ms Aiken has referred, helpfully and appropriately, to a number of decisions of the Full Court, both pre and post-2006 amendments and regarding children’s wishes.
That included the decisions of Schmidt (1979) 5 FamLR 42 and Bennett regarding this Court’s reluctance to separate siblings other than for good reason and there may well, in some cases, be good reason but not in this. I have also been referred to, and take account of the Full Court’s decisions in Harrison & Woollard (1995) FLC 92-598 as well as ZN & YH [2002] FamCA 453 and R & R: Children’s Wishes [2002] FamCA 383.
An important plank of what is put in relation to these children’s views is that these children and young people quite clearly, under the International Convention, have a right to have their voice heard in these proceedings. That has not occurred through the vehicle of an independent children’s lawyer, it has not occurred, to a large extent, through that which is expressed by each of these parents in their evidence, but certainly, I have Ms D.’s memo, wherein each of these young people have been invited to share an insight into their life, and as I have already observed to counsel, I am far more interested in the context of this matter, where both parents are perfectly abundant, capable, caring parents, to have that insight into what life is presently like for these three young people.
One is struck by the sensitivity shown by each of these children to not wish to upset either of their parents by expressing a preference. Dealing firstly with [Z], the youngest of the children, and the first in time in the memo. He is 12 and a half years of age. The discussion with respect to [Z] commences with the following:
“[Z] indicated he was very sad talking about the problems in his family, and experienced it as a dilemma, because he didn’t want to be separated for too long from either parent. [Z] indicated his preference was to live in an equal time arrangement, but if this could not occur [and clearly, based on what each of his parents have expressed in their evidence, it will not occur] he preferred to live with his mother in [U].”
The reasons given for that would appear to relate to lifestyle, and in light of how recently that has been introduced, may well be a slightly fantasised, almost “Home & Away” version of where he finds himself.
Perhaps more sagely though, it then continues:
“[Z] was concerned that his siblings would be split up. He thought [Y] would prefer to live with mum, but that [X] was now showing a preference to live with dad, although he was not sure. [Z] was concerned that his father would be sad about his choice, stating, “I don’t like to see him sad”. However, he also thought that while dad would be angry about this, he would not be emotionally rejecting of him.”
Again, it is difficult to recall too many cases that come through this Court where a child could have such emotional security in the relationship that he has with each of his parents. To be fully aware of the fact that even if their parent were disappointed by what they have expressed, that they would not be castigated or rejected.
It goes on:
“[Z] admitted he didn’t like to see his mother sad, either, which she would be if he lived with his father.”
Despite submissions to the contrary, [Z] insisted that he was not choosing to live with his mother so that she did not have to feel sad.
There was also a discussion with [Z] about changing schools. [Z], again, something which should bring great delight to both of his parents, claimed that both of his parents were good parents, and neither was any better at looking after them than the other. He said he felt upset about his father’s level of anger towards his mother since they had moved, but whilst this Court is often quick to criticise parents for not acting perfectly, and whilst I certainly do not seek to condone any parent making their anger aware to their children, it is entirely explicable that Mr Aiken might be angry, and that the children would be aware of it. Certainly, it goes no higher than that, and these children do not talk about fear and concern, which again, is a credit to both parents. Importantly, [Z] admitted to feeling under emotional pressure from both of his parents, and that he wished for it to stop. To some extent, it will stop today, because the decision has passed from [Z]’s parents to me, and I will make the decision. Again, [Z] expressed his concern that he would be separated with his siblings.
The interview with [Y], one month short of turning 14, commences by indicating that she was “distressed about her family situation”. [Y] was noted as showing the strongest preference of all three children, and that being a preference to live with her mum, but that was not unreserved; she indicated:
“She could probably tolerate more not seeing her father for a fortnight, but could not tolerate not seeing her mother for a fortnight.”
Accordingly, that is not, perhaps, as strong an articulation of a view or a preference as one might take it to be, but rather [Y] making the best choice she can out of two choices which are perhaps not ideal - very much the same situation this Court is placed in.
[Y] was also concerned that she would be separated from her siblings, but indicated perhaps the strongest element of her preference that even if that was the end consequence, she still wanted to live with her mother. Accordingly, I am satisfied that [Y], certainly to the extent that the memo gives me evidence in that regard, has that preference.
[Y]’s discussion concludes with the indication that:
“She was upset when her father had informed her he would fight till his last breath to get us back to the [P] area. She wishes for her parents to get along, and not be in conflict with each other.”
[X] – who is present in court for these reasons, and accordingly, is spoken of in the third person, not for the purposes of disrespect, but to accurately reflect the memo – indicated to Ms D. that:
“He found the interview very difficult, and that he was in a great deal of distress about the matters before the Court. He felt under pressure to know what he wanted, and worried about upsetting both his parents and his siblings.”
It was observed of [X], as would appear to be a remarkably accurate observation, that he was an extremely thoughtful young man. He is quite, clearly intelligent, doing well at school, and that is because he is studious and self-driven. Again, social science would tell us that his likelihood of being scholastic, and achieving well scholastically, would not be so, but for the support and encouragement of his parents, and both of them.
[X] expressed some real reservations about both sets of options, but consistent with the views expressed by his siblings, expressed a concern that he did not necessarily want to be split up; that was expressed in less strong terms than [Y] and [Z], but the view still existed and was expressed. [X] was concerned to ensure that he could see his siblings regularly, no matter what the arrangement was, and particularly if he did not live with them, and expressed, “He was worried he would miss his siblings.”
Ultimately, Ms D., by way of compromise, if nothing else, proposed a possible interim arrangement until the end of the school year, whereby [X] might return to live at his father’s home, and complete school at the school he had previously attended, which the evidence would suggest concludes with year 10 being [X]’s year. Importantly, however, [X] also indicated “he would need his parents support in this, and he would need both of them to place no pressure on him”.
I am satisfied from what I have read in the memo that all three of these children, and through no deliberate or overt action by either of these parents, feel horribly pressured and torn to make decisions that have not been able to be consensually achieved by their parents.
In R & R: Children’s Wishes, I am conscious that the Full Court has made clear to lower trial courts such as mine that appropriate and careful consideration must be given to children’s views, subject to them being of an age and maturity and free of overt influence as would suggest that such weight is not warranted. It concludes that “…when validly held wishes are departed from by a trial judge, it is apparent that good reason should be shown for doing so”. I am certainly conscious, as I have already indicated, and by reference to the authorities to which I have referred, and by reference to the views that these children have expressed, that to split them up would be to do them no favour.
The views that are expressed by these children have largely been focused upon as to a preference that they might express with respect to either parent or arrangements proposed by their parents. However, importantly, the clear and consistent view that all three of these young people have expressed is to remain together, and particularly during this important period in their life, which has been horribly destabilised, and destabilising, through no fault of their own, and indeed, through no fault of their parents, who are entitled to make the adult choice to no longer be together.
Accordingly, in relation to the children’s views, the primary aspect of those views upon which I attach weight is that which relates to their desire to remain together. To the extent that any of the children have expressed views, [Y]’s is clearly the strongest preference in terms of choosing to remain with her mother, even if her primary view of wishing to remain with her siblings could not then be achieved.
The nature of the relationship of the child with each parent, and other persons including grandparent or other relative
These children clearly have a wonderful and meaningful relationship with both of their parents. That is, no doubt, because their parents have been excellent providers for them physically and emotionally. I am not able, on the evidence available at this interim stage, to discern the vexed question, again as addressed by Warshak in his article “The Primary Parenting Presumption: Primarily Meaningless”, to determine which parent has been, if indeed either has, the “primary parent”.
Clearly, since February of this year, both parents have had equal physical involvement. The children clearly also enjoy, and have enjoyed for quite some time, a very good relationship with each of their grandparents. That is commendable for these parents, and no doubt a source of great joy for these children and their grandparents.
The willingness and ability of each child’s parent to facilitate and encourage a close and continuing relationship.
Ms Aiken is criticised to some extent by Mr Aiken, on the basis that the actions that have been taken by Ms Aiken must clearly suggest a lack of insight into the importance of the children’s relationship with their father as well as her actions in moving such a distance which has created real impediments and barriers. Those impediments and barriers, it would seem, are going to remain, no matter who the children primarily live with. However, I am not satisfied that the move has been undertaken with that intent. If I were so satisfied, or there was the merest suggestion that the children were being relocated to drive a wedge, be it with respect to time or relationship between the other parent, prompt action would be taken to address that, which would most assuredly see them pass to live with the other parent.
Subsection (c) is often referred to, misleadingly, as the “friendly parent provision”, suggesting that any parent who does not abide by, or is not seen to abide by, an active desire and campaign to promote and encourage the children’s relationship with the other parent must be castigated and criticised. However, that is not the intention of the subsection. It is intended as a reflection of what is done by parents, having regard to their circumstances, and what is reasonable.
I am satisfied that unless I could form a view, which on an interim level would be difficult to envisage, but on the evidence available is not available, that the action in relocating to [B] has some intent to interfere in the relationship, that I could not be critical.
The likely effect of change in the children’s circumstances, including separation from either parent, any other child, or any other person.
Abundantly, as would be apparent from the above, I am concerned that there would be a detrimental effect at this point in their lives of these three young people in being separated from each other.
In terms of separation from their parents, that is something that they are very familiar with. These children are of an age where they have been attending school most of their life, and certainly, in relation to [Z], for the last six years or so, and in relation to [X], for the last 10 years or so. Accordingly, these children separate from their parents every day. They have also, since February, separated from their parents on a weekly basis, and including during school holidays. Clearly, these children’s meaningful relationship with each parent can survive separations of that nature.
It is not, accordingly, a long bow to draw to suggest that these children will, as I have already observed, continue, maintain, and develop their meaningful relationship with each of their parents, irrespective of which parent’s proposal for primacy of care finds favour. What perhaps will be more difficult to achieve will be the meaningful involvement that is spoken of in the objects provision, as clearly, the parents will not be as physically available to attend school functions and the like, although it is, of course, a matter for them to make themselves as available as they can, bearing in mind the practical difficulties.
Practical difficulty and expense
Practical difficulty and expense is manifest but not substantial. These parties are not moving to different ends of the country, they are living four hours apart. That will produce a lot of travel, that will have cost, but on either parent’s proposal it will happen, and it will be identical on each proposal so that, also, is not a factor of any great assistance.
The capacity of each of the children’s parents, and others including grandparents, to meet the children’s needs, including emotional and intellectual needs
I am satisfied both parents and both families are on an equal footing.
The maturity, sex, lifestyle, and background of the children.
I am satisfied that these children, through what is related by the family consultant, are quite mature. They are certainly sufficiently mature to feel uncomfortable in the circumstance they find themselves, not only at their parent’s separation, but the child dispute conference interviews. That is not because the family consultant has made them uncomfortable, but simply because they are sufficiently sensitive and intelligent to know full well and understand the process that is going on for them, and the impact that that may potentially have upon their parents.
They are also fully aware, I am certain, that they can no longer maintain – and on either parent’s proposal it will end – the week-about arrangement, or an arrangement whereby their parents are in their lives on a very substantial week-to-week basis, bearing in mind that it is only some months ago that for these children, their parents relationship and living in an intact family ceased to be a reality. That factor, if nothing else, suggests that the weight that I might attach to their views will be heightened.
Whether the child is from an Aboriginal or Torres Strait Islander background
This factor is not relevant and the children are not from an Aboriginal or Torres Straight Island background.
The attitude to the child and responsibilities of parenthood demonstrated by each of the children’s parents.
Ms Aiken, again, is criticised in Mr Aiken’s case, as regards her unilateral actions in moving to [B], notwithstanding that there had been discussion and conjecture about the move for some months, but more importantly, a clear expression of opposition.
Subsection (4) of s.60CC is referred to in tandem with that paragraph, which deals with the failure of a parent to involve the other parent in decisions about major long-term issues relating to the child. Major long-term issues, as defined in s.4, include changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the parent. As to whether it is significantly more difficult or simply more difficult, it is certainly the latter. That is a criticism that has some validity, but must be balanced overall with what is in these children’s best interests at this point in time, and for the very limited period before a final hearing can be accommodated.
Family violence
Whilst that is alluded to as regards events precipitating the physical separation of the parties, from what is raised, and the manner in which it is raised I am not satisfied that there is any real live or active issue at this point that I need to consider. I do specifically refer to that section, however, noting the Full Court’s comments in Dieter & Dieter.
Family violence orders
There are none.
Whether it would be preferable to make the order that will least likely lead to the institution of future proceedings
On an interim level, it is trite to say that, barring concession by one parent or compromise that leads to resolution, the matter will proceed, but the section does not deal with the matter continuing before the Court but the institution of further proceedings.
Today, the parties have cut by 50 per cent the issues in dispute between them by resolving property arrangements.
The institution of future proceedings on an interim level is perhaps best focused upon making arrangements that will be sustainable, and which will, as best as one can predict, and for the period of time that these orders will operate, to avoid future difficulties, whether practical or otherwise.
Other matters
The Court is allowed, and required, to consider any other fact or circumstance that is considered relevant. I am required to inform my decision-making by reference, not only to s.60CA and treating the children’s best interests as the paramount consideration, but the objects and principals of the Act in s.60B. They provide that the objects of the part are the ensure that the best interests of children are met by:
(a)“ensuring the children have the benefit of both of their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child.
Clearly, if these parents are going to continue to live four hours apart, no matter which proposal is accepted there will be largely equal and corresponding difficulties in the extent of a meaningful involvement. But the other great benefit that these children have is that they have two parents, who I am satisfied will do everything within their power, including walking on burning coals or crawling across broken glass, to be involved in their children’s lives.
The objects continue with:
(b)protecting the child from physical or psychological harm [which is not relevant]
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential [These children are, and will under either proposal, continue to receive that]
(d) ensuring that parents fulfil their duties and meet their responsibilities.”
Again, there is a criticism of Ms Aiken for not having involved
Mr Aiken directly in the decision to move, or indeed, having informed him of the decision it having been made and implemented before that notice was given. Beyond that valid criticism, I have no concerns whatsoever about either of these parents fulfilling their duties in the future.
The principles underlying the objects commence with the provision that:
“children have a right to know and be cared for by both of their parents”
That has been the case, and will continue, albeit that the arrangements must, of necessity, change.
The principles then provide that:
“children have a right to spend time on a regular basis, and communicate on a regular basis, with both their parents and other significant people, including grandparents”
Again, nothing will impede that.
Subsection c provides that:
“parents share duties and responsibilities”
Indeed, these parents, but for the unilateral move, have done so, and will continue to do so.
Subsection d provides that:
“Parents should agree about future parenting”
I have every confidence these parents are capable of agreeing about the future parenting of their children, as they have since separation, albeit they have not resolved this particular issue.
The principles conclude with
“children have a right to enjoy their culture”
That is not raised as an issue of significance in this case.
What flows from all of those considerations would appear, particularly by reference to the practical difficulties that have been created and which will continue, to be that this Court must do the best it can to now put into place arrangements that will best promote and meet these children’s best interests as the paramount consideration.
On one level there is some merit to what is submitted in Mr Aiken’s case that Ms Aiken is the one who has brought about this difficulty and accordingly, if she is not prepared to return the children to the [P] area, with her or without her, that the children should nonetheless return, all three together, and then live with their father. That is, however, another change in these children’s lives and as big a change as that which
Ms Aiken has imposed through her movement to [B]. Accordingly I am satisfied each of those changes would balance each other out, provide no benefit to these children and do not favour either party’s proposal.
Whilst Ms Aiken’s actions, unilateral as they have been, in relocating to [B] have occurred, and whilst she is not required to demonstrate compelling reasons, she has certainly put forth, cogently and consistently since March, those reasons. Ms Aiken’s reasons have largely been financial but she has also desired the emotional support and assistance of her parents.
The flipside of that argument is that Mr Aiken and Ms Aiken have entered into a set of orders regarding property adjustment. This matrimonial home has been listed for sale for some months and not sold and between now and the final hearing may well not be sold. It is put that if it is sold, Ms Aiken has capital available to her to assist her in rental in the [P] area. If it is not sold between now and the final hearing, she has the home available and the orders themselves provide a mechanism whereby if Ms Aiken cannot or does not meet her share of the mortgage, being one half, that Mr Aiken will make the payment and be reimbursed. That would, however, have the ultimate consequence of reducing Ms Aiken’s capital and causing her, effectively and on either of those propositions, to expend her capital in housing herself and the children if living with her.
Her proposal is that she remains at [B] where she lives rent free with her parents. That is not accommodation of the same standard and it is certainly smaller and more cramped but Ms Aiken has given evidence as to sleeping arrangements for the children whereby [X] and [Z] share and will share a room and [Y] has a room of her home. It is not apparent where Ms Aiken sleeps but presumably somewhere within the home.
The adequacy of arrangements is perhaps the base test for the Court, particularly when the time between interim determination and final hearing will be relatively brief, as it is in this case. That is established by authorities such as Archbald (1984) FLC 91-532.
The real issue in this case, bearing in mind the practical difficulties referred in s.65DAA(5) and as highlighted by the High Court in MRR & GR and which difficulties are going to be present and substantially the same on either proposal is where these children should all stay together and with which parent.
On balance, and having regard to the above matters I am satisfied, as I am urged in Ms Aiken’s case, that perhaps the consideration in s.60CC that I would place the greatest weight upon are the children’s views.
It is highly regrettable that [X] has changed school midway through year 10. It is an important year but I have some comfort that he is an intelligent and academic young man who acknowledged, himself, in his conversation with Ms D., that one disadvantage he sees of school in [U] is that he is not surrounded by students as studious as at his old school. That bodes well for how insightful this young man is about his education and his educational needs.
He has indicated that he is somewhat shy and preferred the familiarity of his old school. Whilst it is suggested it is a school that ends with Year 10 and accordingly he would need to go on to a new school for Years 11 and 12, as I have every confidence he will, that is perhaps not to consider that he would probably pass to a new school with some, if not all, of the cohort by whom he is presently surrounded.
The other issue of real magnitude in this case relates to the ability, as set out in the primary consideration, for these children to maintain a meaningful relationship with both parents. I am satisfied that there is nothing in either parent’s proposal that in any way impacts upon or impedes that and, accordingly, it does not favour either parent. The relationship these children have with their parents and their extended family is excellent and an absolute credit to their parents.
The fact that these relationships have continued, notwithstanding the natural and ordinary stresses and strains of separation, not only emotional but also financial, is testament to the parenting insight and capacity of these parents. In that circumstance I cannot be satisfied at all that there would be any detriment to the children’s meaningful relationship with either parent irrespective of the arrangements that were put into place for their care. Whether they see their parents on a weekly basis, fortnightly or communicate with them by telephone on a regular and frequent basis, I am satisfied that these children’s meaningful relationship, at their ages, is already established and accordingly it is a matter of maintaining it. And that is not so much a matter of the time structure that either parent proposes but the other matters that speak to their relationship - their insight, their capacity, their warmth, their love, their affection and, most importantly for these parents, as they have demonstrated, their ability to keep their adult issues and hurt largely to themselves so that their children are not caught in the middle of it.
I have every confidence that each of these parents, having read the child dispute memo, would have felt moved by the emotions demonstrated and expressed by their children, and so they should. These children are going through a tough time. It is never easy for children when their parents separate. Having said that, it is no easier for the parents but they, at least, have the emotional wherewithal and more direct knowledge, action and control to deal with it. Each of these parents has three children who speak to them through Ms D., letting them know how sad they are about the fact their family is coming apart and is coming apart even more as we speak. But come apart it has.
This Court – although it has an obligation, as do legal representatives, to make parents aware of facilities available to assist them in reconciliation should they wish – does not have the power to drive parents back together. Social science would suggest, subject to that being a happy, healthy and emotionally productive relationship for parents, that it might well be a good outcome for these children but it is an outcome that parents must dictate and determine, not the Court. This Court does not socially engineer nor experiment.
This Court makes decisions about future parenting arrangements for children, having regard to the factors set out in the legislation and primary amongst which is the paramouncy of children’s best interests. No one factor, in s.60CC or for that matter s.65DAA(5) can, in this case, be the determining issue. But through the combination of the neutrality of either arrangement being detrimental to the children’s meaningful relationship, I am satisfied that certainly the potential that there would be for the children’s relationship with their mother and, indeed, the care that they would receive from her if she were to return to a financially stressful circumstance, would be detrimental and disadvantageous.
It would also have the real potential, I am satisfied, to cause further disruption, distrust, disagreement and discontent between the parents of these young people which would do no good for them. Particularly, bearing in mind the limited period of time that this arrangement will apply, the fact that there are some weeks left of this school term and a period of school holidays and some weeks of the last school term of the year before the matter will be heard and determined on a final basis, I am satisfied that the following orders should be made.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 31 August 2011
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