Alexander and Alexander

[2009] FamCA 327

FAMILY COURT OF AUSTRALIA

ALEXANDER & ALEXANDER [2009] FamCA 327

FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – Relocation

APPLICANT: Mr Alexander

RESPONDENT: Ms Alexander

INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge

FILE NUMBER: SYC 7797 of 2007

DATE DELIVERED: 1 April 2009

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 31 March & 1 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combe

SOLICITOR FOR THE APPLICANT: Sharah & Associates Solicitors

COUNSEL FOR THE RESPONDENT: Mr Campton of Counsel

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Selfridge of Counsel

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. That all previous Orders be discharged.

2. The Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children E born … October 2000, S born … April 2002 and J born … October 2004.

3. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   a.They shall inform the other parent about the decision to be made;

   b.They shall consult with each other on terms that they agree;

   c.They shall make a genuine effort to come to a joint decision.

4. The Mother shall be responsible for the daily care, welfare and development of the children when the children are living with her.

5. The Father shall be responsible for the daily care, welfare and development of the children when the children are spending time with him.

6. The children are to live with the Mother.

Time the children are to spend with the Father until 1 April 2010

1. The children are to spend time with and communicate with the Father as agreed between the parties and if they fail to agree then as follows:

   a.In South East Queensland at least one weekend a lunar month, with the Father to travel to Queensland and be responsible for all the costs associated with those visits.

   b.In Sydney one weekend a lunar month, with the Mother to travel to and from Sydney with, and deliver the children to, the father, and be responsible for the costs associated with that travel.

   c.The itinerary supplied by the airline is to be provided to the other party at least 28 days prior to the children’s time with the Father commencing.  

Should the Father then relocate to South East Queensland

1. The Father will spend time with and communicate with the children as follows:

   a.Fortnightly from after school Friday until before school Monday to continue fortnightly thereafter until the commencement of any school holiday period;

   b.During each school term, one evening per week as agreed between the parties and failing agreement each Wednesday from the conclusion of school to the commencement of school on the next day, Thursday.

2. Should the Father remain resident in the general Sydney metropolis then a continuation of the Orders in 7a, 7b, 7c, 10a and 10b.

School holidays

1. For one half of all school holiday periods:

   a.Being the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years the parties to share equally the costs of the children’s travel; and

   b.The second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years the parties to share equally the costs of the children’s travel.

Specific Issues

1. That the Mother and Father shall:

   a.keep the other parent informed at all times of their residential address and landline contact telephone number;

   b.keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children  and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;

   c.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children .  This Order authorises any treating medical practitioner to release the children ’s medical information to the other parent;

2. That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children ’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parents cost).

3. That during the time the children are with either parent, that parent shall:

   a.Respect the privacy of the other parent and not question the children about the personal life of the other parent;

   b.Speak of the other parent respectfully;

   c.Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

4. That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:

   a.The parent’s shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.

   b.They shall pay the costs of the Family Dispute Resolution Practitioner equally.

   c.In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.

   d.The Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list.

   e.If the Mother fails to choose, then the Father may choose.

5. That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children , each party is to take the steps referred to in the preceding order.

IT IS  FURTHER ORDERED:

1. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that my follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Costs

1. The Mother pay the Father’s costs of and incidental to the hearing on 4 March 2009 as agreed or assessed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7797 of 2007

MR ALEXANDER

Applicant

And

MS ALEXANDEr

Respondent

REASONS FOR JUDGMENT

1. I will be giving judgment in this case now.  I know it is not perhaps the best thing that we can possibly do, but because of my calendar and future I would not be able to get back to this case for at least a month.  I do not think that the parties or the children deserve waiting for that length of time for a decision which may look better and be tidier than what I will give in this ex tempore decision but they would have to wait.  I think the parties, as I have said, and the children deserve some judgment in this case so that they can perhaps start again. 

2. I have had the assistance of counsel in this matter, or I have had the assistance of what I consider to be fairly well-done material and I am in particular referring to Ms D’s report and she being a family consultant who prepared two, one the assessment which is of course a comparatively minor report, and later an in-depth family report of 16 January.  I will be touching upon that at a later stage.

3. The historical facts are as follows: that the parties - the applicant being the father and the respondent being the mother - commenced a relationship in 1993.  They married in May 1997 and from such union there were three children born, they being E in October 2000, S in April 2002, and J who was born in October 2004.

4. Because of the manner in which this case was quite properly put before me I am of the opinion that any in-depth examination of the machinations or otherwise of the parties' dual cohabitation are in effect totally irrelevant.  Whether in fact there was on one side allegations of domestic violence and abuse or whether the applicant was in any way involved in extra marital affairs does not in any way concern me.

5. The case has come down to one thing, and that is whether or not the children should be removed from an area in which they have lived - and I emphasise "the area" for a period of almost exactly two years - back to Sydney, or whether they should be allowed to remain in that area and to have the father attempt to extend his meaningful relationship by journeying from Sydney to the north coast here and with the mother journeying from the north coast to Sydney.

6. The parties, after separation, entered into a parenting plan which is exhibit 1.  The plan obviously was prepared by solicitors experienced in this field.  It is very extensive and very particular. 

7. The prime difficulty in this parenting agreement probably is the fact that in it the wife was allowed to relocate from Sydney where the parties had been resident, where the children were born, where the children have been raised, was entitled to relocate to Queensland for a period of one year - and perhaps I should really read into the record the exact paragraph which is 12:

   “The children shall live with mother”

   and 13:

   “That the mother shall be permitted to relocate with the children to the Sunshine Coast in Queensland for a period ending on or about 1 February 2008.” (my underlining)

8. The parenting plan was put into force and effect.  It enabled the father to see the children at least on a minimal basis of once per month on the understanding that the father can increase contact to once a fortnight if his circumstances - see para 14.  The mother relocated.  She moved to W, a residential area north of Brisbane which perhaps is considered a holiday destination to a great extent, and she gave evidence that she rented a very comfortable home, that the children were very happy in that area, that they have attended schools as they have become able to do so, that they have made lots of friends and she considers that they were having an absolutely wonderful time.

9. As part of the parenting process a financial agreement was also entered into which enabled the mother to receive totally the interest of the parties in the former matrimonial home at P in New South Wales.  She subsequently sold this home, as it was her right, although there is some complaint directed to her by the father because she did not give him adequate notice , or any notice, of her intention to sell the property, but she sold it for a figure of $1,025,000, and she has used that eventually for the purchase of the home in which she and the children now reside. 

10. It appears that she commenced looking for homes in 2008 after the time limited for her to return to Sydney and subsequently purchased the house in about August 2008.  She had to spend a considerable amount of money upon the renovations of the house as well as installing a pool.

11. The house at P, as I said, was sold and she had something like $500,000 net to play with.  She purchased the property for $450,000 and has expended something in excess of $100,000 on renovations and/or installing of the pool and also in purchasing a motor vehicle.  She had another property at B, which she sold and the net proceeds of that were about $100,000.  That has gone as well into this property.  She now says that the children are established, they have put their roots down on the Sunshine Coast. 

12. By the way, this property which she purchased was at D, some distance further north, if my memory serves me correctly, about 10 minutes or thereabouts by car.  They are attending school in the area.  I think J is attending kindy three days per week and will be going to school next year.  The other two appear to be enjoying school as has been ascertained by the family consultant.

13. The father has on at least 12 occasions expended a considerable amount of money by journeying from Sydney to the north coast for at least one period per month, for one weekend per month.  This costs him, he estimates, between $1000 and $1500.  This includes return airfare, accommodation whilst he is at the north coast at a beachside resort and also the expenses in entertaining the children as well as the hire of a motor vehicle for the period he is there. 

14. He also has complied with the parenting plan and financial agreement in assisting the wife insofar as the rental accommodation of the original rented house and other outgoings, for instance the bond and things of that nature.  He has complied strictly, as he says, with the parenting plan as well as the other document.

15. He does complain that the mother has in no way involved him in the general welfare of the children, nor has she involved him, as she should have done, under the parenting plan, in informing him of illnesses suffered by the children - E had tonsillitis.  Nor has she informed him of the fact that some of the children were having psychotherapy, E and S, which are matters which has been submitted by his counsel, who has said everything he possibly can in favour of his client, should have done.  That is right, she should have done.  She also has distanced, if I may put it that way, herself from the husband, the father of their children.  I cannot go as far as to say that there is a concentrated effort on her part to isolate the father from the children.  There is the tyranny of distance which looms large in this case.  She does wish to separate herself from any association with the father as she considers that any relationship they may have had is over and done with, and it is. 

16. The father has formed another relationship with a lady by the name of N.  At this stage it has not gone any further than, as I understand, a relationship, but he does consider in the future that he would like to remarry someone, not necessarily N, and perhaps have further children.  He is a man who obviously loves his children and clearly from the material before me the children love him.

17. He seeks an order that in effect the mother should comply with the parenting agreement, that she should return to Sydney and take the children back with her to Sydney.  There is no dispute that the present parenting arrangements should remain.  There is joint parental responsibility and that is not in dispute.  He concedes that primarily the children should reside or live with the mother but that he should have meaningful and adequate time to spend with the children to develop their relationship between he and them and in particular, as he emphasises, the extended family of himself which consists of his mother, to a lesser extent his father, and children of his siblings, being cousins. 

18. He says that the tyranny of distance is such that notwithstanding he may be able to - at vast cost and expense he says - maintain a relationship with the children, the distance is such that the relationship between the children and extended family is doomed to failure.  He has indicated through his counsel and by way of evidence his mother has come to Queensland on three occasions, and his sister once.  He has submitted through his counsel that the mother did do nothing to facilitate the attendance of the paternal grandmother and the relations of the father.  I do not think anyway that she should go out of her way to encourage the parties to come, but then again she should put no obstacles in their path.  It is a matter for the father, if he wishes to do so. 

19. But that is not the crux of the matter, and perhaps we should - as Mr Selfridge who appears on behalf of the independent children's lawyer says - cut to the chase.  What are the competing propositions?  The competing propositions are one; from the father; the mother returns with the children to Sydney and that there be spending time with him, as our politicians say we have to say nowadays for alternate weekends and a Wednesday night during the week for dinner or something of that nature, and naturally of course extended holidays and periods where he can enjoy them and they in particular and more importantly can enjoy him.

20. The mother on the other hand's proposal is, as I understand, that she remains in D and that she do avail herself of the proposed minutes of orders tendered before me and marked exhibit 6. 

RECORDED   :   NOT TRANSCRIBED

1. And she sets out there what she considers to be proper and reasonable in all the circumstances.  There has been some faint submissions concerning my jurisdiction in relation to ordering the mother to return by way of an injunction.  I do not for one moment think that my jurisdiction is in any way tainted, and that to make sure of course that it is not, I will make no order in relation to returning the mother or otherwise and do not consider that that application is before me, but there is an application before me that the children return to Sydney and consequently I believe that I have clear jurisdiction to decide whether or no they are going.

2. What could we say in favour of the father?  The father has done everything, he says, that he possibly can in accordance with the parenting agreement.  He has been let down badly by the mother.  He feels hurt, perhaps slightly dishonoured by the fact that he has complied with the agreement and she has not, and I must say - with her being in Court - she has concedes that she has not complied because she has not informed him of the things that I have referred to hereinbefore and she obviously has not returned to Sydney.

3. I was somewhat concerned that her purchase of this house may have been  some form of hidden agenda whereby she would be able to come to the Court and say, "Look, I have put down roots down, you can't tear the children's home away from them by journeying them back to Sydney."  She denies that, as I understood her evidence, by inference or directly, but it does concern me.  She was aware that this agreement required her to return to Sydney.  She was aware that there was in existence an application which was in November 2007 for her to return to Sydney, or rather the children to return to Sydney, and went ahead, as Ms D said, and purchased this property when the legal matters had not been resolved.  That did concern me. 

4. However, notwithstanding that there may have been a hidden agenda there I have to get down to what is in the interests of the children.  At present we have the children established in D.  They have friends there.  They are attending school there, two out of three, and one is attending kindergarten as I have said.  The mother appears to have some small support group there, but they are not having contact or spending time with their extended family.  It has been emphasised that in fact we should look not only at the relationship between the children and their parents but also with the extended family, in particular grandparents.  I take that into consideration.

5. I have to of course look at the presumptions which are set out in the Act, and fortunately I do not have to decide them because they have been agreed between the parties that there is joint parental responsibility.  It is then the questions set out in s 60CC and the emphatic submission on the part of the applicant husband is the meaningful relationship question.  He says that if they remain Queensland they are not going to develop as good a relationship as they would if the were living in Sydney.

6. Ms D has written a report in which she recommends that in fact the children return to Sydney.  I must say that during the cross-examination of her by counsel on behalf of the respondent mother she gave me the impression that perhaps she did not emphasise or put as much weight as she should upon the upheaval.  Perhaps it might have been falsely generated, but the upheaval that the children would suffer by their being removed.

RECORDED   :   NOT TRANSCRIBED

1. It is 62.  She says:

   "It is evident that [the mother] has established a good life for the children in Queensland.  She has purchased a new home for the children where they each have a room that is conducive to their needs and she has linked them to various extracurriculum - should be curricula [sic] - activities.  It would appear [the mother] has built a very child-friendly lifestyle for the children; however - and I emphasise the following - aside from this there does not appear to be any substantial reason to prevent [the mother] and the children returning to Sydney.  [The mother] is not at risk of losing her source of income as she is not presently employed, and relocating to Sydney will not adversely affect her parenting capacity or the children's right to have a meaningful relationship with her whereas [the mother’s] proposal to remain in Queensland does have such an impact upon [the father] and the children's right to have a meaningful relationship with him." 

2. Two things: (1) she says it will impact upon the father. The father indicated to her that he was finding the costs, the expenses of coming up and down from Sydney to the north coast excessive and that he felt, according to what she said in her report, that he would only in future be able to do it once per year.  In her notes she said that the period was twice; however that is immaterial.  I can understand that, and she says - and I think this is where perhaps she may have gone wrong - the assumption that he might only be able to get here once or twice per year; that in itself clearly would interfere with the meaningful relationship that he would have with his children. 

3. He would be an absent father, the children are young, and as is well-known, historically correct, young children need more frequent contact with their - if I might use that word - with their parents, with the absent parent perhaps for lesser times.  That, in itself, is not right.  The father acting, as he has done all the way in the best interests of the children, indicates that he could - and I emphasise could - continue journeying to Queensland for a period of about up to 12 months. 

4. He is at present hoping to get new employment in the IT industry at the salary of a range of 150 to 200 thousand.  He expects to sign a three-month contact next week, and it might lead, as he once again hopes, to permanent employment.  He indicates that jobs are available in Queensland.  They are defined, and as he told Ms D, the competition is pretty hot up here for jobs and it may be that he would not be able to find one.  He also wants to take into consideration the fact that his relationship with N may be gravely interfered with should he move at this stage to Queensland. 

5. However, it was in cross-examination he conceded - once again putting the children's welfare first - that perhaps for a period he could continue this monthly trip but that he would like to see the children more than that.  It was then raised that in fact the mother could accompany the children on shall we say the alternate fortnight from Queensland to Sydney, she having areas where she could live without the expense of having to pay for accommodation.  This was investigated and was put to her and she conceded that that in itself would be quite a good idea.  Equally, Ms D when she was apprised of this alternate suggestion she herself went so far as to say that that would be ideal save she thought there should be an extra Wednesday night in each week or each off-week.

6. So what am I left with?  I am left with really three alternatives: (1) that the children remain in the north coast; (2) they go back to Sydney; or (3) an amalgam of both wherein the children for a time go to Sydney in the company of their mother and for another time they experience the joys and happiness of having their father with them in what is obviously an area that they enjoy tremendously.

7. Family law, particularly in relation to children, is a balancing act.  It always has been a balancing act.  We are always 50 per cent wrong; this Court is never 50 per cent right, and taking into consideration the balancing here I am of the opinion that the suggestion that the parties do move from one State to the other has a great deal of attraction to it.  It is afforded by the independent children's lawyer and they have put before me two alternatives, exhibits 5 and 6, being the suggestion if the children remain in Queensland.

8. I take into consideration that as was said by their being in Sydney the almost maximum that the father was looking for as in by way of spending time with his children was each alternate weekend, half the school holidays and that Wednesday night.  With the number 3 suggestion - that is that the mother comes down and he goes up - he would not be enjoying such a length of time in New South Wales but he would be enjoying almost identical length of time to what he would be if in fact they lived in Sydney.  I take that into consideration.

9. I do not believe that there is anything else in s 60CC which concerns me.  It is the question of the meaningful relationship.  I do not, as I have said, take into consideration the allegations and counter-allegations relating as to why or if and when the marriage failed.  It is a tragedy it has, as I have said, and I reiterate that they are good parents.  They are hard cases.  It is a very hard case where you have got two people which unfortunately who cannot live together, one or both and in all probability both are going to be hurt.  We can only do the best by maximising the time that the children have with their father and I consider that the only way to do that is by way of the so-called third alternative being exhibit 6 being the proposed orders put forward by the independent children's lawyer, and I order accordingly.

RECORDED   :   NOT TRANSCRIBED

1. A further application has been made on behalf of the applicant father for his costs which were reserved by myself on 4 March 2009, particularly I refer to O4 where the husband's costs were reserved at a quantum to be determined.  The quantum has allegedly been particularised by way of an affidavit from Joanne Mary Sharah which was filed on 13 March 2009 and the sum total comes to $12,275.73 being unit costs of $4875 and disbursements, including GST of $7473. 

2. It is submitted on behalf  of the respondent that first of all there is no special circumstances that takes this application or defence of it out of the general policy of the Family Law Act that each party should pay their own costs.  However, I can do so and there are ways which excite - if I may put it that way - the right of the Court to order costs against a party, one of which is if they are totally unsuccessful.

3. These costs arise out of an application on the part of the wife to dismiss or lessen the impact of the report of Ms D which made strong recommendations, as I have already found, against her wishes for the children.  Jordan of counsel, who appeared on behalf of the applicant, made all the submissions he possibly could, and notwithstanding his submissions I found against him.  As a result thereof, the then applicant the wife failed.

4. She also points out that her financial situation is not as strong as the husband's wherein she says that she is unemployed, she is in receipt of child support of some 2600 per month.  She also receives two benefits from Centrelink, and as a result thereof she says she does not have the capacity to pay.

5. Notwithstanding that she has a property which is worth a considerable amount of money, some perhaps $500,000 from which she has a comparatively small mortgage of some $60,000.  Her father, an elderly gentleman, is going to assist her with that in that he has agreed, or he has offered rather to pay the mortgage instalment of 375 or thereabouts per month.

6. It is very rare for any costs to be awarded on an indemnity basis and that is being sought by the applicant father.  Although the quantum clearly is not on an indemnity basis.  I think it is on a scale, isn't it - - -

RECORDED   :   NOT TRANSCRIBED

1. It appears, as has fallen from counsel for the mother, that in fact these costs which are particularised in the affidavit to which I have herein before referred are on an indemnity basis.  He submits that this, as I have said, it is rare that costs are awarded on an indemnity basis.  I do not think there is that degree of  approbation, as Mr Coombe has used, which would require me to order costs on an indemnity basis.  I do not have any costs particularised on a scale basis.  I would have thought that the plaintiff's costs of airfare, taxi fare and wage losses, would come under the scale heading, and if I am persuaded to make an order for costs I would make it only on the basis of scale. 

   ORDERS DELIVERED

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              30 April 2009