B & B
[2007] FMCAfam 82
•16 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2007] FMCAfam 82 |
| FAMILY LAW – Children – interim proceedings – unilateral relocation of one party with the children to Brisbane – order that the children return to Cairns. |
| Family Law Act1975, ss.60B, 60CA, 60CC, 61C, 61DA, 61DB, 64B, 65DAA, 65DAC, 65DAE Family Law (Shared Parental Responsibility) Act 2006 |
| Goode & Goode [2006] FamCA 1346 B & B [2006] FamCA 1207 AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Campbell and Spalding [1998] FamCA 66 R & R [2007] FMCAfam 29 |
| Applicant: | R W B |
| Respondent: | R J B |
| File number: | BRM 9921 of 2006 |
| Judgment of: | Wilson FM |
| Hearing date: | 8 February 2007 |
| Date of last submission: | 8 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 16 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scott-Mackenzie |
| Solicitors for the Applicant: | Simonidis Shoebridge Lawyers |
| Counsel for the Respondent: | Ms Williams |
| Solicitors for the Respondent: | James White Lawyers |
ORDERS
(1)Until the trial of this action or earlier order, the applicant and the respondent share equal parental responsibility for the children B B and P B;
(2)Otherwise each party shall be responsible for the day to day care and welfare of the children, whilst the children are in their care;
(3)On condition that the applicant meet the reasonable travel costs of the respondent (if she decides to return to Cairns) and the two children from Brisbane to Cairns, then, until the trial of this action or earlier order:
(i) If the respondent returns to Cairns:
(a) the children shall live with the respondent in Cairns;
(b)the children shall spend equal time with the applicant and the respondent as agreed, but failing agreement:
(I) In week one of a fortnightly cycle from 6pm Monday until 6pm Tuesday, 6pm Wednesday until 6pm Thursday, and 9am Saturday until 6pm Sunday – with the applicant, and the remaining time with the respondent;
(II)In week two of a fortnightly cycle the time spent with each parent specified in subparagraph (I) hereof shall be spent with the other parent;
(ii)If the respondent does not return to Cairns:
(a)the children shall live with the applicant in Cairns;
(b)the children shall spend such time with the respondent as may be agreed, provided that:
(I) the respondent not remove the children from Cairns, without the written agreement of the applicant first obtained;
(II)the respondent shall be responsible for all costs associated with her spending time with the children.
(4)For the purposes of Order 3 the applicant shall pre-pay airfares from Brisbane to Cairns:
(a)once written confirmation has been received that the child B B has been enrolled in a school in Cairns;
(b) not earlier than 7 days from the date of these Orders
(5)For the purpose of changeover, the party with whom the children are then spending time shall deliver the children to the other party at the conclusion of such time;
(6)Both parties are authorized to, and so far as necessary shall direct any school or daycare facility attended by either child to ensure that the other parent:
(a)Receive any report, newsletter, photograph order form, or other communication or information pertaining to the child;
(b) Attend any event organized relating to the child.
(7)The matter is transferred to Cairns for hearing, and such further directions as the Federal Magistrate in Cairns considers appropriate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9921/2006
| R W B |
Applicant
And
| R J B |
Respondent
REASONS FOR JUDGMENT
The applicant father seeks interim parenting orders, as that term is defined in s.64B Family Law Act 1975 (“the Act”) in respect of two children: B B, born 20 June 2002, and P B, born 29 July 2004. The respondent is the children’s mother, and estranged spouse of the applicant. The parties separated on 19 December 2006.
The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].
The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s. 60B of the Act provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].
In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.
In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
By his application, filed 21 December 2006, the applicant sought the following (relevant) interim orders:
1. That the children B B born 20 June 2002 and P B born 29 July 2004 (“the children”) live with the father.
2. That the mother spend time with and communicate with the children at all reasonable times as agreed between the parties but failing agreement:
(i) Each alternate weekend from 8.00am Friday to 8.00am Monday.
6. That the wife is ordered to return the children to Cairns within fourteen (14) days from today.
By his amended application, filed 5 February 2007, the applicant now seeks the following orders:
Children’s Issues
36.That within seven (7) days of the date of these Orders the Mother return to Cairns with the children B B (d.o.b. 20.06.02) & P B (d.o.b. 29.07.04).
If the Mother lives in the Cairns area:
37.That the children spend equal time with the Mother and Father.
38.That the children live with the Mother from 4.00pm on a Sunday fixed by the Court until 4.00pm on the following Sunday and thereafter in each alternate week and with the Father from 4.00pm on the Sunday one week after the date fixed by the Court until 4.00pm on the following Sunday and thereafter in each alternate week.
39.That the parent with whom the children will be living during a [sic] week collect the children from the residence of the other parent at the commencement of the week.
40.That the Mother and Father share joint responsibility for the long-term care, welfare and development of the children, including any decisions related to major long-term issues.
41.That the Mother and Father have sole responsibility for the day to day care, welfare and development of the children whilst the children are in their care.
Christmas School Holidays
42.That upon the commencement of school for B, the children spend one half of all Christmas school holidays with each parent, with the parents to agree in writing as to the details of this Christmas school holiday contact at least one month before the commencement of the holiday.
Education
43.The parties shall each respectively authorise and direct any school that the children may from time to time attend to provide to both parties:
a) Copies of all school reports, newsletters, photograph order forms, and any other document associated with the children’s school; and
b) All information that either party may from time to time seek in relation to the children’s schooling.
44.That the Mother and Father be at liberty to attend and be involved in any and all school events as may be negotiated between the parties.
Medical Issues
45.That the parties shall take all necessary steps and sign all necessary documents authorising the school to list the Father as the first emergency contact, in the event that the children require medical treatment whilst at school.
46.The parties shall each respectively inform the other forthwith if the children receive any medical attention whilst in that party’s care, including the name and contact details of any person providing such attention.
47.The parties shall each respectively authorise and direct any person providing medical attention to the children to provide details and documentation in relation to such treatment to the other party.
48.Both parents are at liberty to be present at any medical appointment in relation to the children regardless of when that appointment is, and the parties shall each respectively give the other reasonable notice of any such appointment.
49.That these Orders shall act as an authority for either parent to speak to any health care or education provider associated with the children.
Specific Issues
50.That neither party shall denigrate or make derogatory remarks about the other parent, or members of the children’s family, in the presence of the children.
51.That the children be at liberty to call either parent at any time.
Alternatively, if the Mother does not live in the Cairns area:
52. That the children live with the father.
53.That the Mother and Father share joint responsibility for the long-term care, welfare and development of the children, including any decisions related to major long-term issues.
54.That the Mother and Father have sole responsible [sic] for the day to day care, welfare and development of the children whilst the children are in their care.
55.That the children spend time with their Mother at all such times as may be agreed but at least as follows:
a) Every fourth weekend from 4.00pm Sunday afternoon until 4.00pm the following Sunday afternoon, with the Mother to be responsible for collecting the children from the Father’s residence at the commencement of contact, and for returning the children to the Father’s residence at the conclusion of spending time with the children.
56.That unless otherwise agreed between the parties the Mother and the children remain in the Cairns area while the children are spending time with the Mother, except during school holidays.
57.That in the weeks that the children are not spending time with the Mother, the children communicate with their Mother by telephone between 6.00pm and 7.00pm each day.
School Holidays
58.That upon the commencement of school for B, the children spend one half of all school holidays with each parent, with the parents to agree in writing as to the details of this Christmas school holiday contact at least one month before the commencement of the holiday.
Education
59.The parties shall each respectively authorise and direct any school that the children may from time to time attend to provide to both parties:
a) Copies of all school reports, newsletters, photograph order forms, and any other document associated with the children’s school; and
b) All information that either party may from time to time seek in relation to the children’s schooling.
60.That the Mother and Father be at liberty to attend and be involved in any and all school events as may be negotiated between the parties.
Medical Issues
61.That the parties shall take all necessary steps and sign all necessary documents authorising the school to list the Father as the first emergency contact, in the event that the children require medical treatment whilst at school.
62.The parties shall each respectively inform the other forthwith if the children receive any medical attention whilst in that party’s care, including the name and contact details of any person providing such attention.
63.The parties shall each respectively authorise and direct any person providing medical attention to the children to provide details and documentation in relation to such treatment to the other party.
64.Both parents are at liberty to be present at any medical appointment in relation to the children regardless of when that appointment is, and the parties shall each respectively give the other reasonable notice of any such appointment.
65.That these Orders shall act as an authority for either parent to speak to any health care or education provider associated with the children.
Specific Issues
66.That neither party shall denigrate or make derogatory remarks about the other parent, or members of the children’s family, in the presence of the children.
67.That the children be at liberty to call either parent at any time.
Spousal Maintenance
68.That the Respondent’s application for spousal maintenance be dismissed.
By her response, filed 23 January 2007, the respondent sought the following interim orders:
Parenting Arrangements
A. If the Applicant lives in the greater Brisbane area
1. That the children of the marriage, B B born 20/06/2002 and P B born 29/07/2004 live with the mother.
2. That the mother and the father have equal shared parental responsibility for the children.
3. That each parent be responsible for the day-to-day decisions concerning the care of the children when the children are living with them.
4. That the father spend time with the children at all such reasonable times as may be agreed between the parties however failing agreement, as follows:
a. Each alternate weekend from 8.30am Saturday until 4.30pm Saturday and from 8.30am Sunday until 4.30pm Sunday.
b. By telephone at 7.30pm on Mondays, Wednesdays and Fridays.
c. On father’s day and the father’s birthday from 8.30am until 5.30pm, or if such day should fall upon a school day then from 8.30am until 5.30pm on the closest non-school day if that day is not a day upon which the father would normally spend time with the children.
d. Should the mother’s birthday or mother’s day fall on a weekend when the children are spending time with the father, the children shall live with the mother on the relevant day and the father shall spend one additional day from 8.30am until 5.30pm with the child in the following weekend.
e. On Christmas day from 12.00pm until 4.00pm with the mother at the residence of the father’s Aunt, D L or other location as may be agreed between the parties.
f. On the Children’s birthdays from 12.00pm until 4.00pm with the mother at the residence of the father’s mother, L H or other location as may be agreed between the parties or if such day should fall upon a school day then from 12.00pm until 4.00pm on the closest non-school day.
5. That the mother deliver and collect the children pursuant to paragraph 4 above at a location nominated by the father within the greater Brisbane area.
6. That the mother and father shall inform each other forthwith of any accident, illness or injury suffered by the child during the time that the children are living with them or spending time with them and further shall inform the other of the name and address of the medical practitioner and/or the hospital where the children are being treated.
7. The children be permitted to attend the B I S located on M R.
8. That B is to commence school on 29 January 2007.
9. That the parties shall take all necessary steps and sign all necessary documents authorizing the school to list the Mother as the first emergency contact.
10. That neither party shall denigrate nor make derogatory remarks about the other parent or any member of the children’s extended family to, or in the presence of the children.
11. That the husband pay the wife’s costs of and incidental to this application.
OR IN THE ALTERNATIVE
B. If the Applicant lives in Cairns
1. That the children of the marriage, B B born 20/06/2002 and P B born 29/07/2004 live with the mother.
2. That the mother and the father have equal shared parental responsibility for the children.
3. That each parent be responsible for the day-to-day decisions concerning the care of the children when the children are living with them.
4. That the father spend time with the children at all such reasonable times as may be agreed between the parties however failing agreement, as follows:
a. Each alternate weekend from 8.30am Saturday until 5.30pm Saturday and from 8.30am Sunday until 5.30pm Sunday.
b. By telephone at 7.30pm on Mondays, Wednesdays and Fridays.
c. On father’s day and the father’s birthday from 8.30am until 5.30pm, or if such day should fall upon a school day then from 8.30am until 5.30pm on the closest non-school day if that day is not a day upon which the father would normally spend time with the children.
d. Should the mother’s birthday or mother’s day fall on a weekend when the children are spending time with the father, the children shall spend time with the mother on the relevant day instead.
e. On Christmas day from 12.00pm until 4.00pm with the mother at the residence of the father’s Aunt, D L or other location as may be agreed between the parties.
f. On the Children’s birthdays from 12.00pm until 4.00pm with the mother at the residence of the father’s mother, L H or other location as may be agreed between the parties or if such day should fall upon a school day then from 12.00pm until 4.00pm on the closest non-school day.
5. That time spent with the children under paragraph 4 above be spent in the greater Brisbane area and that the father travel to Brisbane to facilitate same.
6. That the father be restrained from removing the children from the greater Brisbane area without the express written permission of the mother.
7. That the mother deliver and collect the children pursuant to paragraph 4 above at a location nominated by the father within the greater Brisbane area.
8. That the mother and father shall inform each other forthwith of any accident, illness or injury suffered by the child during the time that the children are living with them or spending time with them and further shall inform the other of the name and address of the medical practitioner and/or the hospital where the children are being treated.
9. That the parties shall take all necessary steps and sign all necessary documents authorizing the school to list the Mother as the first emergency contact.
10. That neither party shall denigrate nor make derogatory remarks about the other parent or any member of the children’s extended family to, or in the presence of the children.
11. That the husband pay the wife’s costs of and incidental to this application.
Spousal Maintenance
1. That until further order the husband pay to the wife by way of spousal maintenance the sum of $1,750.00 per fortnight (being a total of $3,791.00 per month) the first of such payments to be made on the 26th day of January 2007 and fortnightly thereafter.
2. That the amount of spousal maintenance payable pursuant to paragraph 1 above be reduced by the amount of any child support paid to the wife by the husband pursuant to any child support assessment, or by the amount of any other monies paid to the wife as agreed.
3. That the husband pay the wife’s costs of and incidental to this application.
The principal issue to be resolved in the interim is where the children should live. The resolution of that issue will resolve many of the subsidiary issues that arise on the interim application. Both parties profess a desire for the other parent to have a meaningful relationship with their children, and to spend time with them, but point to the fact that the applicant resides in Cairns, and the respondent in Brisbane, and each say that it is therefore impractical for the children to spend substantial (or equal) time with the other.
In order to understand the competing proposals of the parties it is necessary to recount some the factual background to the present application.
The following matters appear to be common ground, or were not challenged:
(a)The applicant, aged 37, is employed by …. at Cairns. He has worked there since late 2005. He was promoted in October 2006.
(b)The respondent, aged 32, is primarily engaged as a full time mother to the two children. She derives some income from part time employment.
(c) Both parties are in good health.
(d)The children are in good health, although both suffer from allergies that require some modification of their diet.
(e)The parties married in May 2002 in Brisbane. They moved to Toowoomba in late May 2002. Both of the children were born in Toowoomba. The respondent has family in or about the Darling Downs. The applicant has no real connection to Toowoomba.
(f)Whilst living in Toowoomba, the applicant’s “father” (really his step grand-father) moved to live with the family and has lived with them until shortly before separation. He continues to live with the applicant.
(g)In late 2005 the family, including the applicant’s “father” moved to Cairns. The applicant secured employment there, and the parties purchased a house at Woree. They sold their house in Toowoomba.
(h)Whilst in Cairns the applicant worked on a full time basis and the respondent acted as a full time carer for the two children, although she derived some income from a direct selling business, of which many of the applicant’s co-workers were customers.
(i)By mid 2006 the respondent expressed discontent about living in Cairns, and wished to return to the Toowoomba area.
(j)In October 2006 the respondent received a job offer that required her to travel to the United States of America. It was originally planned that the respondent would be overseas from 26 November 2006 until 25 December 2006.
(k)Arrangements were made for the applicant and his mother to care for the children whilst the respondent was overseas. The applicant’s mother lives in Brisbane. To this end, the respondent and the children travelled to Brisbane on 22 November 2006. The children were to remain living with the applicant’s mother until the applicant was able to finish work for the year and travel to Brisbane to be with them.
(l)The applicant drove a vehicle to Brisbane and arrived on 2 December 2006 and thereafter cared for the children, with his mother.
(m) The respondent returned from the USA on 6 December 2006.
(n)Upon her return, the respondent requested that the family vacate the applicant’s mother’s house. They travelled to Toowoomba, where they stayed in a motel from 8 December until 19 December.
(o)On 19 December 2006, whilst the applicant was absent from the place where the family was living, the respondent left with the children taking the car driven by the applicant to Brisbane (and then to Toowoomba) and belongings, including the children’s belongings.
(p)On 22 December the respondent travelled to Cairns and arranged the removal of a large quantity of furniture and personal effects from the former matrimonial home.
(q)The respondent withdrew money from the parties’ joint account, of approximately $5,000.
(r)Before the matter first came before the court on 25 January 2007, the applicant had seen the children on only two occasions: on Christmas Day for three hours (at applicant’s aunt’s house) and on 27 December for an hour.
(s)Following a court event on 25 January 2007, the applicant also saw the children on 25, 26 and 27 January, but the respondent would not permit the children to stay overnight with the applicant.
(t)The applicant had to return to Cairns on 31 December 2006 to recommence work on 2 January 2007. The respondent and the two children remain in Brisbane, living in a ‘granny flat’ that the respondent rents at a cost of $300.00 per week.
As might be expected, there are a large number of disputed issues, which will have to be resolved at trial. They are the subject of conflicting evidence, which cannot be resolved on an interim hearing. Some of those issues are:
a)Why the family moved to Cairns, and whether it was intended to be for only a short period.
b)Whether, prior to separation, the parties had agreed to move from Cairns either to Toowoomba (or Canada or Western Australia).
c)The reason the Cairns property was listed for sale prior to separation.
d)Why the respondent returned from the USA. The applicant says that it was because the respondent missed her children. The respondent says that the children were distressed, and the applicant and his mother could not cope with looking after them.
e)The circumstances surrounding the parties’ separation, including whether the applicant is a problem gambler, or has a sex addiction.
f)Whether the parties agreed that their children would be educated at a school practicing the Steiner methodology, and whether there is such a facility in Cairns.
g)The extent of telephone contact that the respondent has permitted between the applicant and the children since separation.
Section 61DA(1) of the Act provides:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
There is no suggestion in the present case that the presumption should be rebutted because of the factors referred to in s.61DA(2) of the Act.
Section 61DA(3) and (4) provide:
“(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
I am not persuaded that the presumption should not apply in this case, until trial, which will be for a relatively short period of time. The making of an order for equal shared parental responsibility says nothing about the time that the children are to spend with their respective parents. Rather it is directed to the decision making responsibility of the parents, as explained in ss.65DAC and 65DAE of the Act. There is no evidence before me that would justify removing from either parent in this case their parental responsibility for their children which they have pursuant to s.61C of the Act. There is no evidence which persuades me that the presumption ought be rebutted because its application would not be in the best interests of the children. Accordingly, I propose to make an order that the parties have equal shared parental responsibility for the two children the subject of this application. I observe that if the Federal Magistrate who hears the trial of this matter takes a different view, s. 61DB of the Act allows him (or her) to disregard the allocation of parental responsibility made by me.
The importance of the application of the presumption is that it triggers the operation of s.65DAA(1) of the Act, which provides:
“(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
The first matter that must be considered is whether the children spending equal time with both parents is in those children’s best interests. In that regard, it is necessary to have regard to the primary and additional considerations in s.60CC of the Act, considered against the background of s.60B of the Act which, relevantly to this application, provides:
“(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and…”
The primary consideration referred to in s.60CC(2)(b) is inapplicable at this stage of the matter. However, the primary consideration in s.60CC(2)(a) supports the conclusion that it would be in both children’s best interests to spend as much time as possible with both parents. It is unlikely that a meaningful relationship could or would develop in circumstances where the parties are geographically separated by large distances, if that can be avoided. That conclusion is reinforced by the principles referred to in s.60B(2) of the Act.
It is then necessary to look at the additional considerations set out in s.60CC(3) of the Act. Some of them, specifically subparagraphs (h), (j) and (k), are irrelevant at this stage of the enquiry. Given that the Court can offer the parties an expeditious trial, subparagraph (l) is also unnecessary to consider.
The children are both young. Although the applicant has given evidence that the older child wishes to be with him, I do not think that any weight can be given to the wishes of the children.
The applicant accepts that the children both have a good relationship with the respondent. The respondent is not so forthcoming. She asserts that she has always been the primary caregiver for the children. This is attributable in large part to the parenting style of the parties, who have both endorsed what is described as attachment parenting. The respondent contends that this leads to an almost inseparable bond between her and the children, who become distressed if they are separated from their mother for any length of time. The parenting style has the mother sharing her bed with the children. The youngest child has not yet been weaned. The respondent submits that the attachment between her and the children is a significant factor for the court to consider. The respondent also alleges that the applicant suffers from mood swings and depression which affect his relationship with his children. There is a dispute between the parties as to the applicant’s role in the children’s lives prior to separation. It is not possible to resolve that dispute at this stage of the proceedings, but I observe that the applicant evinces a desire to maintain a meaningful relationship with this children, and given the legislative guidance that both parents being involved is in the children’s best interests, I consider it desirable to try and achieve that result, if it otherwise accords with Part VII of the Act.
The children have a significant relationship with the man they regard as their paternal grandfather. He has lived with them virtually since their birth, and has seen them on a daily basis until separation. He lives in Cairns, and is deprived of seeing the children if they remain living in Brisbane. The children also enjoy a significant relationship with the woman they regard as their paternal grandmother, although it is not as close as with their paternal grandfather. The paternal grandmother lives in Brisbane, although there is no evidence that the respondent has facilitated the children spending time with her since the date of separation. The respondent’s mother lives in Toowoomba and her father in Townsville. There is no evidence of their being a close relationship between the children and these relatives. The applicant has given evidence, which was unchallenged, that the children have three aunts in Cairns, with whom they have a close relationship.
From the evidence available to date it cannot be said that the respondent has been willing, since separation, to facilitate and encourage a close relationship between the children and their father. She has chosen to remain in Brisbane, in rented accommodation. It must have been obvious to her that such a course would preclude the applicant from spending regular time with his children. The applicant is in full time employment in Cairns. There is no evidence that he can secure a transfer in his employment, either in the short or medium term (that is, before the trial of the action). The applicant does not have the financial means, nor the available time, to regularly commute to Brisbane to spend time with his children. Similarly, neither party has the financial means to enable the respondent and the two children to regularly commute to Cairns (given that an adult would have to accompany them on any flights). The respondent contends that the applicant has raised significant obstacles to spending regular time with the children. However, the converse is true. The applicant had to return to Cairns to recommence work. It was the respondent who chose to stay in Brisbane, and it was this that has proved to be the obstacle to both parties spending maximum time with their children.
During the hearing, there was some debate as to whether the respondent ought be permitted to ‘relocate’ to Brisbane. The respondent has not made application to do so. In effect, the respondent has unilaterally removed the children from their home at Cairns to Brisbane. The respondent has not descended to any particularity as to why it is either necessary or desirable for her to live in Brisbane, as opposed to Cairns, Toowoomba, or indeed anywhere else.
In B & B [2006] FamCA 1207 at [34]ff Warnick JA discussed the interplay between the paramountcy principle of “best interests of the child” and the so-called right of a parent to move, discussed in cases such as AMS v AIF (1999) 199 CLR 160, and U v U (2002) 211 CLR 238. His Honour considered that a proposal to relocate should be treated as a fact, to be taken into account in determining on all of the evidence what is in the best interests of the children. In reliance upon the judgment of Gummow and Callinan JJ in U v U at 262, His Honour concluded at [45] that the right to freedom of movement should never be acted upon to counterbalance, or outweigh factors, that would otherwise result in a conclusion that the best interests were served by refusing relocation.
The position is more acute on an interim application. The Full Court of the Family Court in Campbell and Spalding [1998] FamCA 66, said:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parent from what it or they had been immediately beforehand.”
Thus, a party cannot relocate unilaterally, and thereupon use that fact which he or she has created, to either justify relocation or, more relevantly on the present application, as an impediment to the children spending time with the other parent. In the present case, in considering s.60CC(3)(c) and (d) I take into account the conduct of the respondent in remaining in Brisbane, with which she has no real connection, and where she has not lived since early 2002, and removing the children from their home in Cairns, where the applicant lives and works. It is correct to observe that the family had not lived in Cairns for more than twelve months by the time of separation but nevertheless it was where the family home was most recently located, and where the children had most recently lived.
It is not practical for the children to regularly commute between Brisbane and Cairns. Aside from the cost involved, which neither party seems capable of paying, it would be unsettling for the children, and given the eldest child’s schooling commitments, would be reduced to weekend visits at most.
The applicant is willing to facilitate a close and continuing relationship between the respondent and the children. He has offered (in a letter dated 16 January 2007 from his solicitors) for the respondent to occupy the spare room in the former matrimonial home. This offer was rejected as ‘absurd in the circumstances’. However, the offer (which was repeated in open court, and remains open) would have a number of useful benefits. First, it would enable the children to maximize their time with both parents. Secondly, it would save the respondent rental that she is currently paying, and obviate the incurring of such an expense in Cairns. Thirdly, it would enable the relationship between the children and their paternal grandfather to be fostered. Fourthly, by some arrangement the parties could presumably reduce their living expenses to their mutual benefit. Fifthly, it would reduce the possibilities of inconsistent parenting approaches. Sixthly, it would enable the respondent to monitor the children’s diets more carefully.
I appreciate that such a proposal has obvious drawbacks. Most obviously, the parties’ separation is recent, and there would likely be considerable tension in the household if the parties lived separated under the one roof. However, the court is able to offer the parties an expeditious trial. If the parties were able to accommodate this proposal it would be a good example of them putting the interests of their children ahead of their own interests. After all, the respondent stated, at paragraph 95 of her first affidavit: “I am wholly committed to the children’s wellbeing and will adjust all aspects of my lifestyle to accommodate their needs.”
Of course, I cannot compel the respondent to accept the applicant’s offer. She could reside in Cairns at other accommodation. There is no evidence that such accommodation would cost more than the applicant is paying in Brisbane. The nature of the respondent’s work permits her to work from Cairns as easily as from Brisbane.
If the children were to remain in Brisbane, the only practical means of ensuring that the relationship with the applicant continued would be if he were to regularly fly to Brisbane to see them. That does not take into account the paternal grandfather who also lives in Cairns, with whom the children have a close relationship. There are also three aunts in Cairns who would miss seeing the children if they remained in Brisbane. There is no evidence that the children have a close relationship with other relatives, other than their paternal grandmother, such as would tip the balance in favour of the children remaining in Brisbane.
Section 60CC(3)(e) has largely been considered above. I am satisfied, on the material presently before the Court, that both parties are capable of providing for the needs of their children. Both children are still young. They understandably would have a close attachment to their primary caregiver, the respondent. The type of parenting practiced by the parties is a relevant consideration, not least under s.60CC(3)(g). So also are the dietary requirements of the children. However, those matters must be looked at as part of the whole picture, and are not, of themselves, determinative. I note that the respondent was prepared to leave the children with the applicant and his mother for a month, as recently as last December. Similarly, the lifestyle of the parties is relevant. In that regard, I note the disputed assertion by the respondent that the applicant is a problem gambler, which she says presents a severe risk of neglect to the children whilst they are in his care. There is no evidence to support this assertion, which is as I have said denied. Again, I refer to the fact that the respondent was prepared to leave the country for a month and allow the applicant to care for the children.
I am prepared to accept that both parties have a positive attitude to their children, and to their obligations as parents. In considering the factor referred to in s.60CC(3)(i), subsection 60CC(4) is relevant. In the present case, I am satisfied that the respondent has failed to facilitate the applicant spending time with his children. He has been able to see them on only a few occasions since separation, and that is to be regretted. For a meaningful relationship to be fostered, regular time is required to be spent with both parents. I am unable to resolve the disputed issue of whether the respondent makes it difficult for the applicant to make telephone contact with the children, but I do not think that such contact is sufficient, particularly having regard to the young ages of the children.
The children have suffered from instability in their living arrangements since late November 2006. That instability is continuing. They live in rented accommodation in Brisbane, a place with which they have little connection. I consider that the best interests of the two children will be served if both parents live in the same area.
I therefore conclude that spending equal time with both parents would be in the children’s best interests.
The next matter that has to be considered under s.65DAA(1) is whether it is reasonably practicable for the children to spend equal time with both parents. Section 65DAA(5) provides some guidance in considering that issue.
Plainly, if the parents continue to live where they are currently residing, it is not reasonably practicable for the children to spend equal time with each of them. It would, in my opinion, be in the best interests of the children for them to return to Cairns, with their mother. If that were to occur, the children could spend equal time with each parent, and the parenting style of the respondent could be continued. I have above referred to the desirability (in practical terms) of the respondent living at the former matrimonial home until the trial. The respondent’s submissions as to the cost of her returning to Cairns with the children is met by the respondent’s undertaking to meet the reasonable travel costs of the respondent and children returning to Cairns. As to the household furniture and children’s belongings, my view is that if the respondent surreptitiously removed those items from the former matrimonial home, she should bear the cost of returning them.
The eldest child commenced prep school in late January this year. In my view, it would not unduly affect him to transfer his schooling to Cairns. Given his age, and the length of time at school, I doubt that any strong attachments have yet been formed. Any return of B to Cairns must of course be on condition that he is able to be enrolled at a prep school there. The applicant gave evidence that there is a Catholic school contiguous with the former matrimonial home, and a day care facility very close by. B is on the waiting list for that school. There is also a State school close by. There is also the school earlier investigated by the mother, that practices the Steiner methodology, although there is no evidence that B could be enrolled at that school in the near future.
I am prepared to order that the children continue to live with the mother, on condition that she and the children return to Cairns. That is the approach that has been taken in a number of cases, most recently
R & R[2007] FMCAfam 29.
What if the mother refuses to return to Cairns? I am satisfied that, having regard to the mother’s affidavit evidence, and her obvious strong bond with her children, that if the children return to Cairns, she will do likewise. If she does not, that is her choice not to continue to spend time with her children until the trial of this action. I do not think that the respondent’s obdurateness should preclude the applicant from spending time with his children. In the circumstances, given that the respondent has spent almost all of the last two months with the children, by herself, if she refuses to return to Cairns, I think it is reasonable that the children should live with the applicant until the trial of this matter which is only a little over two months hence.
I raised with the parties whether the trial should be conducted in Brisbane or in Cairns. Obviously, if both parties are in Cairns, that would be a more convenient venue for the hearing. The paternal grandfather, who is a likely witness, is in Cairns, as is the applicant’s employer. There do not appear to be any relevant witnesses in Brisbane, other than the paternal grandmother. A trial date can be offered in Brisbane in the week commencing 30 April, or in Cairns on 1 and 2 May, so there will be no delay in selecting one venue or the other. In the circumstances, given that my preferred view is that both the applicant, and the respondent, and the children, should be in Cairns by the time the matter comes on for hearing, I will order the matter be transferred to Cairns.
The respondent sought an interim order for spousal maintenance. That relief was not pressed on the hearing of the application. Given the applicant’s sworn evidence as to his financial circumstances, I would not be prepared to make such an order for the relatively short period until trial. Further, given the parenting orders that I am making, the living arrangements of the respondent may well change in the short term. For those reasons, I do not propose to make any orders on the application for interim spousal maintenance.
The orders I therefore make are as follows:
(1)
Until the trial of this action or earlier order, the applicant and the respondent share equal parental responsibility for the children
B B and P B.
(2)Otherwise each party shall be responsible for the day to day care and welfare of the children, whilst the children are in their care.
(3)On condition that the applicant meet the reasonable travel costs of the respondent (if she decides to return to Cairns) and the two children from Brisbane to Cairns, then, until the trial of this action or earlier order:
(i) If the respondent returns to Cairns:
(a) the children shall live with the respondent in Cairns;
(b)the children shall spend equal time with the applicant and the respondent as agreed, but failing agreement:
(I) In week one of a fortnightly cycle from 6pm Monday until 6pm Tuesday, 6pm Wednesday until 6pm Thursday, and 9am Saturday until 6pm Sunday – with the applicant, and the remaining time with the respondent;
(II)In week two of a fortnightly cycle the time spent with each parent specified in subparagraph (I) hereof shall be spent with the other parent;
(ii)If the respondent does not return to Cairns:
(a)the children shall live with the applicant in Cairns;
(b)the children shall spend such time with the respondent as may be agreed, provided that:
(I) the respondent not remove the children from Cairns, without the written agreement of the applicant first obtained;
(II)the respondent shall be responsible for all costs associated with her spending time with the children.
(4)For the purposes of Order 3 the applicant shall pre-pay airfares from Brisbane to Cairns:
(a)once written confirmation has been received that the child
B B has been enrolled in a school in Cairns;
(b)not earlier than 7 days from the date of these Orders.
(5)For the purpose of changeover, the party with whom the children are then spending time shall deliver the children to the other party at the conclusion of such time.
(6)Both parties are authorized to, and so far as necessary shall direct any school or daycare facility attended by either child to ensure that the other parent:
(a)Receive any report, newsletter, photograph order form, or other communication or information pertaining to the child;
(b)Attend any event organized relating to the child.
(7)The matter is transferred to Cairns for hearing, and such further directions as the Federal Magistrate in Cairns considers appropriate.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Kristy Glover
Date: 16 February 2007
13
6
2