BAGER & BAGER
[2020] FCCA 114
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAGER & BAGER | [2020] FCCA 114 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – relocation – whether the children should live with the mother and spend time with the father – whether the children should live with the father and spend time with the mother – whether the parents should have equal shared parental responsibility – whether the children should spend equal time or substantial and significant time with each parent. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, |
| Cases cited: AMS & AIF (1999) 199 CLR 160 |
| Applicant: | MR BAGER |
| Respondent: | MS BAGER |
| File Number: | SYC 647 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 23 August 2019 |
| Date of Last Submission: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moutasallem |
| Solicitors for the Applicant: | Platinum Lawyers Pty Ltd |
| Solicitors for the Respondent: | Ms Khalil of Lewarne & Goldsmith |
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children [X], born … 2010 (“[X]”), and [Y], born … 2012 (“[Y]”) (“the children”).
That the children live with their mother.
That the mother may maintain the children’s place of residence at Suburb A in Region B area.
That the children spend time with their father as follows:
(a)During school term time on the first two weekends out of three from 6:00pm on Friday until 4:00pm on Sunday, the first such occasion to commence on the weekend immediately following the making of these orders;
(b)During the school holidays at the end of Terms 1, 2, 3 and 4 for the first half of school holidays commencing in odd-numbered years and the second half of school holidays commencing on even-numbered years, and for this purpose those school holidays commence at 6:00pm on the last day of school attendance and conclude at 6:00pm on the day before school attendance resumes for the children, and the midpoint of the school holiday at the end of Terms 1, 2 and 3 is 6:00pm on the second Saturday of the school holiday;
(c)In even-numbered years from 3:00pm on 25 December until 6:00pm on 27 December;
(d)In the event that Father’s Day occurs on a weekend when the children would not otherwise be in their father’s care, from 6:00pm on the Saturday before Father’s Day, until 4:00pm on Father’s Day;
(e)In the event that either of the children’s birthdays or the father’s birthday occurs on a day when the children are not otherwise in his care, and it is not a school day, from 12 noon until 4:00pm;
(f)Notwithstanding any other order, in even numbered years from 6:00pm on Easter Thursday until 12 noon on Easter Saturday, and in odd-numbered years from 12 noon on Easter Saturday until 6:00pm on Easter Monday; and
(g)Such other times as may be agreed between the parties from time to time.
The children will return to their mother’s care on the following occasions:
(a)In odd-numbered years from 3:00pm on 25 December until 6:00pm on 27 December;
(b)In the event that Mother’s Day occurs on a weekend when the children would otherwise be in the father’s care, from 6:00pm on the Saturday before Mother’s Day;
(c)In the event that either of the children’s birthdays or the mother’s birthday occurs on a day when the children are in the father’s care for the whole of the day, from 12 noon until 4:00pm;
(d)Notwithstanding any other order, in odd-numbered years from 6:00pm on Easter Thursday until 12 noon on Easter Saturday and in even-numbered years from 12 noon on Easter Saturday until 6:00pm on Easter Monday;
(e)At such other times as may be agreed between the parties from time to time.
Unless otherwise agreed between the parties, changeovers on all occasions will occur at the McDonald’s Family Restaurant on C Road at Suburb D.
The father’s time with the children on weekends under order 4(a) will cease to occur during school holidays and will resume on the weekend next after the end of each school holiday that commences in and odd-numbered year and on the weekend second after the end of each school holiday that commences in an even-numbered year.
The father may communicate with the children by telephone, Skype or FaceTime on Tuesdays and Thursdays during school term time and during school holidays when the children are in their mother’s care, at some time between 5:00pm and 6:00pm, and the mother is to ensure that the children have an appropriate telephone, computer or other appropriate instrument available to the children at those times to receive the fathers communication.
The mother may communicate with the children by telephone, Skype or FaceTime on Tuesdays and Thursdays during school holidays when the children are in their father’s care, at some time between 5:00pm and 6:00pm, and the father is to ensure that the children have an appropriate telephone, computer or other appropriate instrument available to the children at those times to receive the mother’s communication.
Each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of either of the children or within either the children’s hearing.
Each of the parents is restrained from allowing either of the children to remain in the presence of, or within either of the children’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
Each of the parents is restrained from discussing these proceedings, or the contents of any documents filed in or intended for use in these proceedings, with or in the presence or hearing of either of the children.
Each of the parents is restrained from allowing either of the children to remain in the presence of, or within either of the children’s hearing of, any other person who is discussing these proceedings or the contents of any document filed in or intended for use in these proceedings other than a person doing so pursuant to an order in these proceedings, or as authorised, under the Family Law Act 1975.
In the event that either party is unable to care for the children during their respective periods of care pursuant to these orders for a period in excess of 36 hours, then the other parent is to be given first option to care for the children.
Each of the parents must keep the other parent informed of their current residential address, mobile telephone number and, if they have one, landline telephone number and an available email address, and advise the other parent of any change to those details as soon as possible once a change is known to be occurring.
In the event that either of the children have a medical emergency or a hospitalisation, whether as inpatient or outpatient, the parent in whose care the child was at the applicable time will notify the other parent as soon as practicable of the medical emergency or hospitalisation.
Each of the parents must notify the other parent in advance of any appointment made for either the children with a health professional and each of the parents are entitled to attend at any such appointment and each of the parents are entitled to receive all and any information appropriate to be provided to parents in relation to any health services provided to either of the children. In the event that either of the children attends on a health professional without appointment, then the parent in whose care the child was at the time of attendance must notify the other parent of the occurrence as soon as practicable.
Both parents may liaise directly with the children’s schools and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s school attendance, behaviour and progress and sporting activities.
Each of the parties may attend at the children’s schools for the purpose of attending any function or activity normally attended by parents.
The parties are to establish and use a communication book, or in the alternative, are to cooperate in establishing appropriate communication through an online parenting communication service, so as to communicate between them matters relating to the children’s care, and in the event that they use a communication book it is to accompany the children between the parent’s places of residence, but not in such manner that it can be read by either of the children.
IT IS NOTED that publication of this judgment under the pseudonym Bager & Bager is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 647 of 2019
| MR BAGER |
Applicant
And
| MS BAGER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Bager (“the father”) and Ms Bager (“the mother”) commenced cohabitation sometime in 2006 or 2007 and married on … 2012. They separated in either March 2015 or October 2016 and divorced in either May 2017 or August 2018, depending on whose evidence in that regard turns out to be correct.
During their relationship they had two children, [X], born … 2010 (“[X]”) and [Y], born … 2012 (“[Y]”) (“the children”). [X] is nine years of age and [Y] is seven years of age.
In October 2018, the mother relocated her and the children’s place of residence from the home she owned throughout the relationship at Suburb E, in New South Wales, to Suburb A, in New South Wales. She did so without the father’s agreement.
The father commenced these proceedings in February 2019 with a view to obtaining interim orders that the children either reside with him at his home in Town F, and spend time with their mother, or live with their mother somewhere within a 50-kilometre radius of his home at Town F and spend time with him on an almost shared care basis.
In the event that the mother does not return to reside within a 50-kilometre radius of Town F, the father proposes that the children live with him and spend three weekends each month with their mother, from after school on Friday to before school Monday. If the mother does move and take up residence within the 50-kilometre radius from Town F, the father proposes that the children live with the mother for eight nights a fortnight and with him for six nights a fortnight.
The matter had its first mention before His Honour Judge Harper (as his Honour then was) on 27 February 2019. An interim order was made that [X] and [Y] spend time with the father from 6:00pm Friday to 4:00pm Sunday on the first three weekends of each month and from 6:00pm Friday to 9:30am Sunday on the fourth weekend of every month, with changeover to take place at the McDonald’s Family Restaurant at Suburb C for the first three weekends of the month and at the McDonald’s Family Restaurant at Suburb G for the fourth weekend of the month.
The matter was mentioned on 24 May 2019 and then proceeded to an interim hearing before me on 23 August 2019. I reserved judgment.
This is, in the parlance of the family law world, an interim relocation case. As I will set out with more precision later in these reasons, relocation cases do not form a separate category of cases within the overall compass of parenting cases, but proceed in the same way as any other case in which parenting orders are to be made on an interim or final basis, that is, they proceed on the basis that the Court must determine what parenting orders are proper to be made in the best interests of the children, with those best interests as the paramount consideration.
The Evidence
The parties met in about September 2005 and commenced living together in a de facto relationship at the home the mother owned at H Street, Suburb E (“Suburb E Property”), in either 2006, according to the father, or 2007, according to the mother. They married on … 2012.
On … 2010, the mother gave birth to their daughter, [X], and on … 2012, she gave birth to their son, [Y].
The family lived at the Suburb E property throughout the whole period of cohabitation. The mother had purchased that property in about 2003 and she was the sole registered proprietor. At the commencement of cohabitation, the property was subject to a mortgage as security for a loan account obtained by the mother to assist with purchase.
The father sought orders on the interim hearing relating to preserving the proceeds of sale of the Suburb E property, that sale occurring after separation, and for an interim distribution of funds from the proceeds of sale to each of the parties. For reasons that I will address when dealing with that Application, it is not necessary for me, in these reasons, to traverse the facts, contested or otherwise, relating to property aspects of this matter.
At the time [X] was born, the father was employed as a disability support worker on a full-time basis. The father says that he was a very hands-on father and that he would assist the mother with everything from feeding [X] to bathing her, changing nappies and food preparation. He says that when [Y] was born, he assisted the mother with his care in the same manner.
The mother, on the other hand, says that since [X]’s birth, she has attended to all of her needs and has been her primary attachment figure.
The mother gives evidence that the parties separated on a number of occasions prior to their final separation, the first time in or around April 2010 until late 2011, though they remained living under the same roof at the Suburb E property. She says that they again separated in around July 2012 as a consequence of the father’s refusal to seek counselling for what the mother says was his gambling habit. Once again, the parties remained living separately under the same roof but, by November, they must have repaired their relationship to some extent, because they were married on 10 November 2012.
The mother says that during the honeymoon following their marriage the relationship again broke down and she spent a week after returning from the honeymoon living at her parent’s home with the children and then returned to live on a separated-under-the-same-roof basis at the Suburb E property.
The father does not refer to any separations prior to the final separation, though the mother says in her affidavit that, by the end of the honeymoon:
…our marriage was all but over…
The mother says that from then on:
We lived separated under the same roof and co-parented for the sake of our children.
She says that:
In or around July 2014, our relationship continued to deteriorate…throughout 2014, our relationship continued to get worse.
The mother says that they separated on a final basis in or around 8 March 2015, though they continued to live separately under the same roof until October 2015, when the father moved out. The father, on the other hand, says that the marriage broke down in October 2016, that the mother asked him to leave the home and he did.
I am assisted, to a degree, in resolving whose evidence to accept in relation to separation by a “Settlement Agreement” attached to the father’s affidavit as Annexure “A”. In that document, near the bottom of the second page, are the words “Valuation at time of separation May 2015”. Accordingly, for the purposes of these interim proceedings only, I find that the relevant date on which the parties separated was sometime between March and May 2015.
Whether the father moved out of the Suburb E property in October 2015, as the mother asserts, or in October 2016, as the father asserts, I cannot be certain from the evidence currently available. There is sufficient evidence for me to draw an inference for the purposes of this interim hearing that the father moved out in October 2015.
After moving out of the Suburb E property, whenever that occurred, the father moved in with his sister in Suburb I and then, in July 2017, moved into a two-bedroom granny flat at Suburb J (a rental property) and then, in March 2018, moved to occupy rented premises at Town F, a three-bedroom freestanding home.
After the separation, the father and the mother came to an agreement about the time that [X] and [Y] would spend with the father. The mother says that the agreement was that the children would live with her and spend five nights a fortnight with the father; two nights in Week 1 and three nights in Week 2. She says that the father was not consistent in spending time with the children, but that his performance of the spend-time-with arrangements was “sporadic”.
The mother further asserts that the father would come and go into the Suburb E house “as he pleased” until she requested that he return his keys to the property in November, presumably November 2015 on the mother’s telling of the sequence, after which he attended the house to collect the children.
The father, on the other hand, says that following the separation, the parties reached an agreement that he would spend six nights every fortnight with the children and that, apart from spending those nights together, he would see them almost every day. He refers to the “Settlement Agreement” annexed to his affidavit, which he refers to as “a custody agreement” and presumably relies on the schedule for his spending time with the children as set out on page 2 of that document under the heading “Custody Agreement”, which indicates that the children were in the father care six nights per fortnight and the mother’s care eight nights per fortnight.
The mother tells of an occasion in late 2017 when it came to her attention that [X] was being bullied at school to the point where she would come home in tears very upset and begging her mother not to take her to her dance classes, as some of the girls who were bullying her at school also attended the dance classes. The mother says that she advised the father about the bullying problem and that his reaction was to scream at her and at [X] to the effect that [X] must attend the dance classes, and that the mother was to blame for the problem. The mother says that the occasion ended with her closing the door, and the father attempting to kick in the front door of the Suburb E property.
The mother says that, after the father moved from Suburb J to Town F in about March 2018, he continued to come to the Suburb E property:
…often daily to drop off something for [the children], often late at night or early in the morning. I told [Mr Bager] he needed to stop coming past the house daily and sitting across the road or in the driveway for excessive amounts of time. This did not stop.
The mother says that, during the deterioration of their relationship in 2014, she told the father that she was thinking of moving to Town K with the children for financial reasons. She said that she was looking to move at the end of her contract as salesperson with Company L in 2018 and that, in response, the father said to her words to the effect:
I think that’s fair, given the notice you were giving me. At least you’re not moving to Queensland, don’t take them that far from me. Two hours or so will work.
On 16 September 2018, the mother and father exchanged text messages that included a statement by the mother that she wanted to talk to the father about moving from Suburb E to Suburb A and arrangements for changing the children’s schools as a consequence. It is apparent from the printout of the text message exchanges that the father made it clear to the mother that he opposed the children moving that far away from where he was then living at Town F.
The parties met on 20 September 2018 at a local Suburb M hotel to discuss the mother’s intended move with the children and, again, the father made his opposition to the move clear. Shortly thereafter, the parties discussed arranging a mediation with Relationships Australia, but no mediation eventuated.
The mother sold the Suburb E property in August 2018, though the father asserts that the sale did not come to his attention until 14 October 2018. On 14 October 2018, the father says it came to his attention for the first time that the mother and the children had left the Suburb E home and had moved to a rental premises in Suburb A. In her affidavit evidence, the mother does not address the time of the move to Suburb A specifically but jumps from the father spending some short time with the children in the driveway of the Suburb E property on Fathers’ Day 2018 to attempting to arrange mediation about parenting matters in late 2018 or early 2019 and completing the Parenting After Separation course with Relationships Australia at their Town N premises, obviously following the move to Suburb A.
Following the relocation, the father spent time with the children on the weekend of 21 October 2018 during which he says he told the children:
I missed you guys. I want to see you for half the week again.
The father asserts that [Y] replied:
We miss you too. I want that too. Mum is doing what she wants…that’s not fair.
The father asserts that [X] replied:
We want that too.
In his affidavit sworn 1 February 2019, the father asserts:
I see the children on most weekends. On almost every occasion the children tell me the same thing like, “We miss you, we want to come back”.
The mother says in paragraph 63 of her affidavit of 16 August 2019:
On numerous occasions, Mr Bager had spoken poorly about me in front of the children in relation to me being a bad mother, kidnapping them, saying that I was evil and that I should go to hell for what I have done. I texted Mr Bager about this issue and on the following visit with the children he tells them how they can’t tell me anything as it gets him in trouble and if they continue to tell me they will never see Daddy again and this will be their fault.
The mother says in paragraph 64:
On several occasions, following [Y] and [X] starting their new schools, Mr Bager would take them to other schools and tell them that he was going to take them from me and put them in new schools near his house. I expressed to Mr Bager to stop doing this, although as early as a few months ago he did it again to them. They have expressed to him that they don’t want to change schools and are happy where they are. Both children live in fear that their father will take them and not bring them back.
Because of the form in which this evidence is given in paragraphs 63 and 64 of the mother’s affidavit, I cannot give the assertions made therein much weight.
In 2011 [X] was diagnosed with a form of neurological disorder. She is not medicated. [X] has also had learning difficulties since 2016 and has undertaken reading recovery programs and had speech therapy. [X] was referred by her general practitioner to a paediatrician, Dr O, at Paediatric practice P in Suburb Q.
Attached to the mother’s affidavit is a letter by way of a medical report, dated 4 June 2019, in which Dr O lists as issues affecting [X] features of autism spectrum disorder, features of inattention, persistent neurological disorder, and language challenges being developmental language disorder and decreased phonological awareness.
In that document under “Impression”, the doctor reports:
[X] is a nine-year-old girl who has done well after a move from Sydney last year. She has previously been diagnosed with motor tics which are ongoing. She does have some features of autism spectrum disorder, as well as some ongoing anxieties and issues with attention, in context of possible adverse childhood experiences. She has challenges with school progression, although in the past has shown that she can catch up with intensive support.
The doctor provided a referral for an assessment of [X] by a psychologist for further evaluation of autism spectrum disorder. He also suggests assessment by the school counsellor for review of attention and cognitive function in relation to [X]’s school issues.
Also attached to the mother’s affidavit is a report from ‘Speech Pathology in Schools’ at University R. [X] was assessed on 28 February and 7 March 2019 at the request of both her parents and her class teacher.
Since the move in October 2018, both children have been attending Suburb S Public School, [X] in Year 4 and [Y] in Year 2.
The father commenced these proceedings on 5 February 2019, and on the first return date an interim order was made that the children spend time with the father on the first three weekends of each month, from 6:00pm Friday to 4:00pm Sunday, with changeover at McDonalds in Suburb C, and on the fourth weekend of every month from 6:00pm on a Friday to 9:30am on Sunday, with changeover at McDonalds Suburb G.
The parties were ordered to attend a Child Inclusive Conference with a Family Consultant on 16 May 2019, and the proceedings were adjourned to 24 May 2019 for mention.
I have the assistance of a Child Inclusive Conference Memorandum to Court, prepared by the Family Consultant who interviewed each of the parties separately, and each of the children on 16 May 2019.
The mother told the Family Consultant that the father had been verbally abusive towards her throughout their relationship, and that prior to the move to Suburb A, he would frequently come to the Suburb E home late at night unannounced, begging her to resume the relationship, or claiming that he needed to pick up or drop something off for the children.
The mother said that the police were contacted on several such occasions, but that no action eventuated. The mother said that part of her reason for moving was to create space between herself and the father. The father denied the mother’s assertions about his behaviour towards her.
The father asserted that the mother:
…lacks empathy for others and that she is primarily focused on herself. He is concerned that this causes her to be not very attentive or loving towards the children.
The mother claimed that the children complain that their father is frequently angry with them, and yells at them all the time, and that he pressures the children about spending more time with him. She claimed that [X] had returned from spending time with the father a few weeks before, and told the mother that the father ark had yelled at her and punched the bathroom wall. I note that when [X] was asked about this assertion, she confirmed that the father did get upset with her, but she denied that he had punched the wall.
The Family Consultant noted that the father regularly referred to the mother having “kidnapped” the children.
The mother said that she knows that the father loves the children, and she wants to support a relationship between the father and the children, but she has some concerns about his care of the children. It was clear from both parties that up to that time the father did not pay any child support to the mother for the children.
When the Family Consultant asked [X] about her current school in comparison to her former school, [X] said that she prefers her current school, as the children are nicer. [X] described a close and loving relationship with her mother, and said that she likes her mother’s partner, Mr T, and spoke positively about him. [X] also described a close and loving relationship with her father.
[X] said that she is happy to have moved to Suburb A with her mother, as there is a lot of space for her dog, and they get to do fun activities like go to the lake, and she is excited about their home there. She said that she does miss her father, however, she is content to spend time with him on weekends and during the holidays. [X] said that her father often tells her she misses her and her brother, and she also tells him she misses him. She said she gets a bit upset about her father missing them.
[Y] told the Family Consultant that he does not like school very much, but that he prefers his current school to his old school, as the children at his current school are nicer. When it was explained to [Y] that his conversation with the Family Consultant was not completely private, and that his parents would know some aspects of what he told the Family Consultant, [Y] indicated that he was worried that his father would get angry with him, because, he said, his father:
…is always angry, and yells at [them].
[Y] described his mother as happy, and said that he mostly feels happy with her. [Y] described his father as mostly angry, and said that, as a result, he mostly feels sad with his father. [Y] said that, when his father is angry, he yells and swears or goes silent. [Y] said, his father says all the time:
I want more time with you
And:
I want 50/50
He said that his father does not play with him sometimes, but that his father mostly yells and makes he and his sister clean up his house.
The Family Consultant reported that:
Based on the information gathered at this preliminary assessment, the children appear to be managing the current arrangement of living primarily with their mother and spending time with their father on weekends.
The Family Consultant cautioned that it was only a preliminary assessment, and a more comprehensive assessment may be required to evaluate the potential benefits and potential negative impacts on the children of returning to Sydney or remaining in Suburb A. The Family Consultant noted the things that the children had said that indicate that their father may be involving them in the dispute about their care arrangements, and that he can be very angry at times, which causes the children to be upset.
Since the interim orders were made, pending interim hearing, on 27 February 2019, the father has been spending time with the children in accordance with those orders. The mother asserts that the parties live about two and a half hours away from each other, and that Suburb C is the middle point between them.
Subsequent to the Child Dispute Conference, the father has begun paying child support to the mother, at the rate of $300 per fortnight, automatically deducted from his wages.
Material relied upon by the parties
At the interim hearing, the father relied on the following documents:
a)Initiating Application, filed 5 February 2009;
b)Notice of Risk, filed 5 February 2019;
c)Affidavit by the father, sworn 1 February 2019 and filed 5 February 2019;
d)Affidavit by the father, sworn 16 August 2019 and filed 20 August 2019; and
e)Financial Statement by the father, sworn 1 February 2019 and filed 5 February 2019.
The mother relied on the following documents:
a)Response, filed 20 August 2019;
b)Notice of Risk, filed 20 August 2019;
c)Affidavit by the mother, sworn 16 August 2019;
d)Financial Statement by the mother sworn 16 August 2019 and filed 20 August 2019;
e)Exhibit R1, being an invoice on the letterhead of Company U for work carried out at H Street, Suburb E at a cost of $110,000 including GST and dated 30 August 2019 (seven days after the interim hearing at which it was tendered);
f)Child Inclusive Conference memorandum to Court dated 16 May 2019.
Competing proposals of the parties at the interim hearing
Relevant to the parenting issues, the father proposed the following orders:
a)That within 14 days, the mother return the children to the father at Town F;
b)The parties sign all necessary documents and do all acts to re-enrol the children at School V or enrol the children at any other school agreed between the parties;
c)That the parties have equal shared responsibility for the children;
d)If the mother elects to return to Sydney, the children live with the mother within 50 kilometres of the father’s residence;
e)That the mother be restrained from further relocating the children to a location more than 50 kilometres from the father;
f)That if the mother returns to Sydney the children spend time with the father as agreed and, failing agreement, in accordance with the following two week regime:
i)From 4:00pm on Sunday until Wednesday before school (or 9:00am on a non-school day); and
ii)From 9:00am on Saturday morning until Tuesday before school (or 9:00am on a non-school day);
g)If the mother does not elect to return to Sydney, the children live with the father and spend time with the mother as agreed and, failing agreement, for three weekends each month, of the mother’s choosing, from after school Friday, or 3:00pm on a non-school day, to before school Monday, or 9:00am on a non-school day;
h)That the children speak to the parent with whom they are not spending time each second day on either telephone, Skype or FaceTime.
In relation to the interim property aspects, the father proposed orders:
a)That the mother provide full disclosure to the father, including an affidavit explaining the circumstances surrounding the sale of the property at H Street, Suburb E, the manner in which the proceeds of sale were distributed and the current location of the balance of the proceeds of sale;
b)That the balance of the proceeds of sale be deposited in the father’s solicitor’s trust account to be held on trust for both parties until further order;
c)That there be an interim distribution of $50,000 to each party.
The mother proposed, in relation to parenting:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father as follows:
i)During school term on one weekend out of three, commencing the first weekend from the date of orders, from 7:30pm Friday to 6:00pm Sunday, and continuing in that pattern;
ii)For one half of each school holiday period following Terms 1, 2 and 3, as agreed between the parties and, failing agreement, for the first half, commencing at 5:00pm on the last day of school and concluding at 5:00pm on the Saturday halfway through the school holidays in odd-numbered years, and from 5:00pm on the Saturday halfway through the school holiday period to 5:00pm the day before school resumes (presumably in even-numbered years);
iii)On a week about basis in the school holidays following the end of Term 4, as agreed or, failing agreement, commencing 27 December and each alternate week thereafter;
iv)If Father’s Day falls on a weekend when the children are not already spending time with the father, from 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day;
v)On each of the children’s and the father’s birthday, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day;
vi)At Christmas, on 25 December from 10:00am until 5:00pm each year;
vii)During the Easter long weekend, except for when Easter falls during the school holidays, in which event the school holiday arrangement will apply, in even years from 5:00pm Easter Thursday until 5:00pm Easter Saturday and in odd years and from 5:00pm Easter Saturday until 5:00pm Easter Monday;
viii)At such further and other times as may be agreed between the parties;
d)That the father’s time with the children be suspended:
i)If Mother’s Day falls on a weekend when the children are spending time with the father, from 5:00pm on the Saturday before Mother’s Day until 5:00pm on Mother’s Day;
ii)On each of the children’s and the mother’s birthday, if the children are spending time with the father on those occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day;
iii)Commencing Term 3 onwards, for one half of each school holiday period following Terms 1, 2 and 3 as agreed between the parties, and failing agreement, from the last day of school and concluding at 5:00pm the Saturday halfway through the holiday period in even-numbered years and from 5:00pm the Saturday halfway through the school holiday in odd-numbered years;
iv)From 5:00pm Holy Thursday until 5:00pm Easter Saturday in odd-numbered years and from 5:00pm Easter Saturday to 5:00pm Holy Monday in even-numbered years;
e)In the event either party is unable to care for the children during their respective periods pursuant to the orders, then the other parent is to be given first option to care for the children;
f)That changeovers take place at McDonald’s Suburb D on C Road at the commencement and conclusion of the father’s time pursuant to orders;
g)That each parent encourages and facilitates telephone communication between the children and the other parent whilst the children are in their care, as requested by the children but no less frequently than once every three days;
h)That each party is at liberty to attend the children’s school for the purpose of any function or activity normally attended by parents;
i)That the parties shall not consume any alcohol in excess of blood alcohol limit 0.05 in the presence of the children or be in any way affected by alcohol whilst the children are in their care;
j)That within 14 days the father shall attend upon Relationships Australia at the closest office to his place of residence for the purposes of attending and completing an anger management course such as Taking Responsibility and, once completed, provide the solicitors for the mother with a certificate of completion within seven days of receipt of same;
k)An order relating to specific disclosure pursuant to rule 24.03 of the Federal Circuit Court Rules 2001.
The mother sought other orders relating to the passing of information between the parties relating to address, telephone numbers and email addresses in relation to sharing and obtaining information from the children’s schools and medical consultations and so forth, and in relation to non-denigration.
The Law
Relocation cases are not a special or separate type of parenting case but are parenting cases dealt with on the same criteria, following the same legislative pathway and applying the same principles as all parenting cases. The aspect of relocation is an important issue to be examined in the course of determining what parenting orders are proper with the best interests of the children as the paramount, but not the only, consideration.
The Court must examine the competing proposals of the parties and in doing so, and in evaluating the best interests of the children, must examine the advantages and disadvantages involved in the relocation.
The essence of virtually all parenting issues proceedings, interim or final, were very succinctly expressed by the Full Court of the Family Court of Australia in Adamson & Adamson:[1]
[59] …in the absence of agreement between the parties, which co-parenting arrangements best meet the children’s best interests?
[1] Adamson & Adamson (2014) FLC 93-622.
There is no onus on the parent who has relocated to show that there is a “compelling reason” to live where they do, just as there is no onus on the parent “left behind” to demonstrate reasons why the other parent should not be allowed to relocate the children and, as a consequence, return the children to where they had been living before the move.
While the fundamental exercise is the Court's consideration of the best interests of the children, the High Court has said that the Court must be sensitive to the wishes or rights of a parent to live and work wherever they desire:[2]
The right of freedom and mobility of a parent only defers to the paramount consideration of a child's best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent it is necessary to avoid such adverse effects.
[2] U & U (2002) 211 CLR 238 citing AMS & AIF (1999) 199 CLR 160.
In evaluating the competing proposals of the parents, in the light of the best interests of the children, the Court must balance the advantages and disadvantages of the relocation in the context of both the place to which the relocation is contemplated to be made, or has been made, and the place where the non-moving parent asserts the children should be returned to reside.
It is not proper to separate issues of with whom a child should live from the issue as to whether a relocation should be permitted or be permitted to continue. The applicable principles found in the High Court and the Full Court of the Family Court of Australia authorities may be stated as follows:
a)The children's best interests are the paramount, but not the sole, consideration;
b)A parent wishing to relocate does not need to show a "compelling reason";
c)The Court must consider the proposals of the parties, their advantages and disadvantages, but is not bound by the parties' proposals and may formulate the Court's own proposals in the children's best interests;
d)There is no onus on either parent for or against the proposed relocation; the relocation is one of numerous factors to be addressed in determining the children's best interests; and
e)The children's best interests are to be weighed and balanced with the "right" of a parent to have freedom of movement, but that "right" must ultimately defer to the children's best interests.
In this matter, as in all interim parenting matters, I must follow the legislative pathway, as discussed by the High Court in MRR v GR[3] and Goode & Goode.[4]
[3] MRR & GR (2010) 240 CLR 461.
[4] Goode & Goode (2006) FLC 93-296.
In determining what parenting orders should be made with the best interests of the children as the paramount consideration, I am aware of and keep in mind section 60B of the Family Law Act 1975 (“the Act”) which sets out the objects of Part VII of the Act and the principles that underlie those objects.
Section 60CA requires that the children’s best interests are the paramount consideration when making a parenting order.
Section 60CC sets out the considerations to which I should turn my mind in determining what is in the children’s best interests.
Section 61DA provides that there is a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, though that presumption does not apply in circumstances where the Court is satisfied there has been family violence or abuse and that presumption may be rebutted by appropriate evidence. The presumption applies in interim parenting proceedings unless the Court considers that it would not be appropriate in the circumstances of the matter for the presumption to be applied when making an interim order.
If an order is made, whether by applying the presumption or otherwise, that the parents have equal shared parental responsibility for the children, then I must give my attention to section 65DAA of the Act and consider, in the terms of that section, if the children spending equal time with each of the parents would be in their best interests and reasonably practicable and, if so, consider making an order providing for the children to spend equal time with each of their parents.
If an equal time order is not made then the Court must consider whether the children spending substantial and significant time with each of their parents would be in their best interests and reasonably practicable and, if so, consider making an order for them to spend substantial and significant time with each of their parents. Substantial and significant time is defined as including days that fall on weekends and holidays and days that do not fall on weekends or holidays, and being time that allows parents to be involved in the children’s daily routine and occasions and events that are of particular significance to the children and allows the children to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) sets out matters to which the Court should have regard in determining whether it is reasonably practicable for the children to spend equal time or substantial and significant time with each of their parents.
Discussion
Keeping in mind the objects and their underlying principles in section 60B, and that the children’s best interests are the paramount consideration when it comes to making interim parenting orders, I turn to section 60CC in considering what is in the children’s best interests.
Primary Considerations
The primary considerations in section 60CC(2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) mandates that greater weight is to be given to the need to protect the children over the benefit to the children of having a meaningful relationship with both their parents.
The benefit to the children of having a meaningful relationship with both of the children’s parents
From the time of each of the children’s birth until October 2015, the children and their parents were all members of the same household, though the relationship between their parents was, on the mother’s evidence, fluctuating between good, hopeful and poor.
I find for the purposes of the interim decision that the father left the Suburb E property in October 2015 following the final breakdown of the marital relationship sometime between March and May of 2015. Though the parties’ evidence is conflicting as to when the father left the home, I can infer from the totality of the evidence available, including the reference to May 2015 in the “Settlement Agreement” annexed to the father’s affidavit, that the more likely date is that asserted by the mother, October 2015.
From the time the father left the Suburb E property, he has spent regular time with the children, originally on the basis of either five or six nights per fortnight (I am not able to determine which assertion is correct on the available evidence) prior to the move to Suburb A. Thereafter, it seems, each weekend up to the making of the interim orders on 27 February 2019 and continuing each weekend thereafter in accordance with those orders, though what arrangement each of the parties would propose under those orders during a month that contains five weekends is not known on the evidence.
I have assistance from the Child Inclusive Conference Memorandum to Court in relation to the current relationship between each of the children and each of the parents. Based on what is reported by the Family Consultant, I can find on this interim basis that there is an appropriate close and loving relationship between each of the children and their mother, and that they are happy in their mother’s care, and that there is a close and loving relationship between the children and their father, though they are perhaps not quite as happy when they are in his care.
I base this last finding on the comments made by each of the children as reported in the Memorandum. [X] expressed that she is happy to have moved to Suburb A with her mother and that she is excited about their home there. She reports that she misses her father, but she is content to spend time with him on weekends and during holidays. [X] specifically described a close and loving relationship with her mother and said that she likes her mother’s partner, Mr T, and spoke positively about him. She also described a close and loving relationship with her father.
She prefers attending her current school to the school she attended before the move.
[X] did not express any fear or specific unhappiness about spending time with her father or refer to him as being angry, but only said in relation to her parents’ fights that her mother would tell her father to go away because her father has been cranky and upset.
[Y] described his mother as happy and said he mostly feels happy with her and that she is a good mother because she gets him things like games and she plays with him. [Y] described his father as mostly angry and said that, as a result, he mostly feels sad with his father. [Y] said that when his father is angry he yells and swears, or goes silent. He said his father does play with him sometimes, but his father mostly yells and makes he and his sister clean up his house. When it was indicated to [Y] by the Family Consultant that the conversation was not completely private and his parents may know some aspects of what they discussed, he indicated he was worried that his father would get angry with him because he said his father is always angry and yells at them.
It seems, on the limited evidence available on this interim basis, that the relationship between each of the children and their mother is perhaps that little bit better than the relationship between each of the children and the father. [Y] feels happy with his mother, but “mostly feels sad with his father”.
[X] is happy to have moved to Suburb A with her mother, misses her father, but is content to spend time with him on weekends and during holidays.
There is benefit to each of the children in having a meaningful relationship with both of their parents. On the evidence, each of the children has a meaningful relationship with each of their parents and to prioritise the meaningful relationship with one parent over the meaningful relationship with the other would be to the detriment of the children. To enable children to have a meaningful relationship with each of their parents does not mean that the children need to spend equal time with each of their parents. To maintain the benefit to the children of having a meaningful relationship with each of their parents requires that they have opportunity to maintain the current meaningful relationship and to have that meaningful relationship grow and develop in the normal way as between parent and child without their time together being so restricted that it does not allow for either the maintenance or the development to occur, but causes a diminishment.
In this matter, it would be possible for the children to maintain their meaningful relationship with the parent with whom they do not live, whether it be their father or their mother, by time spent together on weekends and during school holidays.
I do not consider that it is necessary for the children to spend every weekend, or four weekends each month, with their father if they live with their mother, to have enough time together during school term to maintain and develop their meaningful relationship with their father. In the event that they do live with their mother and spend time with their father, it is necessary for the children’s maintenance of their meaningful relationship with their mother, and to give that relationship the opportunity to further develop, that they are able to spend weekend times, meaning the whole of weekends, with their mother, in the same way that they spend the whole of weekends with their father.
The same applies in reverse if it was determined that it is in the children’s best interest to live with their father and spend time with their mother.
In summary, the children have a relationship with each of their parents, that relationship is a meaningful relationship which can be maintained and further developed by living with one parent and spending time with the other parent on alternate weekends and during half of each school holiday period. The practicality of that arrangement over a distance between Town F and Suburb A is a matter examined under the appropriate additional consideration below.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In relation to the need to protect the children, I refer to the concern raised by the Family Consultant that the children said things that indicated that the father may be involving the children in the dispute about their care arrangements, and that he can be very angry at times, which causes the children upset.
It is hard on the children to involve them in the parental dispute about where they will live and with whom they will live; it forces them into conflicted loyalties and in some cases can force children into a position of aligning with one parent against the other parent, to the very great detriment of the child or children’s meaningful relationship with the parent whom they have turned against.
It seems, on the basis of what the children reported to the Family Consultant, that the father has not been able to restrain himself from involving the children in the conflict between himself and the mother as to where the children should live and as to how much time they should spend with each parent. If it is the case, as reported by [Y], that the father is making comments to the children such as, “I want more time with you,” and, “I want 50/50,” then he is involving the children in the dispute, and he is risking causing them feelings of guilt and conflicted loyalties. I find that there is a need, on the interim basis, to protect the children from such conduct and its harmful effects.
In discussing the primary consideration of the need to protect the children, I must also pay attention to the assertions contained in the mother’s evidence that the father has engaged in abusive conduct toward her by making comments derogatory of her and by “yelling and screaming” in the course of arguments with her about parenting issues and in the presence of the children, and her assertion that, on at least one occasion, the father attempted to kick the door of her house in.[5] If such behaviour has occurred on the father’s part, it may well have contributed to [Y]’s perception that his father is “mostly angry”, that causes him to “mostly feel sad with his father”.
[5] The mother’s affidavit, sworn 16 August 2019, paragraph 55.
I am also conscious of the mother’s reported assertion to the Family Consultant that the father’s conduct toward her was “part of her reason for moving was to create space between her and Mr Bager.” I find, on the basis of the mother’s evidence and the statements that [Y] reported to the Family Consultant, that it is likely that the father did engage in the sort of conduct described by the mother following separation and in the presence of the children, and that he has a propensity to anger, and that the children need to be protected from exposure to those circumstances as far as possible.
Additional Considerations
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views
The views expressed by each of the children have been referred to above. They may be summarised as [X] being happy and content to live with her mother and to spend time on weekends and school holidays with her father, and happy and content to remain at her current school following the move to Suburb A, rather than return to the school that she formerly attended when living at Suburb E.
[Y] is happy with his mother, but not so happy with his father because his father gets angry and causes [Y] to feel sad when he is with him. When the Family Consultant explained to [Y] that their conversation was not entirely private and that the parents could come to know certain aspects of what they discussed [Y] expressed concern about how his father would react, but did not express any concern about how his mother would react.
For the purpose of this consideration of appropriate parenting orders on the interim basis, I find that the views expressed by each of the children tend toward their preferring to live on the full-time basis with their mother and spend time on weekends and during school holidays with their father.
The extent to which each of the children’s parents has taken, or failed to take the opportunity: (i) to participate in making decisions about major long-term issues in relation to the children; and (ii) to spend time with the children; and (iii) to communicate with the children
On the limited evidence available at present, I can find that each of the parents has taken the opportunity to participate in making decisions about major long-term issues relating to the children, such as education and health matters (the speech pathology assessment report annexed to the mother’s affidavit refers to the assessment having been arranged by both of [X]’s parents), and, certainly, taking an opportunity to spend time with the children and communicate with the children.
The thrust of the proposals for parenting orders made by the father is that he seeks to spend more time with the children than their living at Suburb A allows, by having the children either live with him on a full-time basis and spend time with their mother if their mother does not return from Suburb A to live within 50 kilometres of Town F or, if she does so return, to spend substantial and significant time with the children on a six nights with him, eight nights with their mother basis. There is no indication in the evidence of any failure or lack of will on the part of either parent to participate in decision-making and spending time with the children or in communicating with the children.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children
The evidence of both parties indicate that at least up to the time of the Child Inclusive Conference on 16 May 2019, the father was not paying any child support or providing financial assistance for the children to the mother. It seems that thereafter there was an assessment for child support that led to the father commencing payments of a sum of $300 per fortnight by way of child support for the children, and that an arrears of child support was satisfied to some extent by the retention of his tax refund, though the inference is that the arrears were the result of an assessment involving a back-dating rather than a failure to pay.
Nevertheless, the evidence indicates that there was, for a period of time, at least from October 2018 until May 2019, a failure on the father’s part to contribute toward the fundamental financial support of the children.
Prior to October 2018 when the children moved with the mother to Suburb A, it may have been the father’s view that spending six nights per fortnight with the children, as he asserts was the case, was his provision of appropriate financial support, though that would not seem to have been the mother’s view given that she complained to the Family Consultant that the father did not pay child support or assist her financially with the children, and that this was “the other reason she needed to move from Sydney”.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or (ii) any other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living
The additional consideration relating to the likely effect of changes in the children’s circumstances, including the effect of separation from either of their parents, is of particular significance in proceedings where one of the issues is relocation of the children from where they were living to a place some distance from one of the parents.
On the evidence, it would seem that the travel time between Suburb A and Town F is about two to two and a half hours. Whilst changeovers at mid-points can mean that neither parent has to spend four or five hours on a weekend making a journey both there and back, the children do.
The children’s circumstance at the time of the interim hearing on 23 August 2019 was that since October 2018, they had been living with their mother at Suburb A after moving from the matrimonial home at Suburb E where they had spent the whole of their lives up to that time. Prior to the time of that move, the father had taken up residence at Town F, and the mother gave evidence in her affidavit that at the time of that move it put about an hour’s travelling time between the father and the children’s school, though on the distances involved that estimate of time would seem a bit excessive.
In October 2018, the children’s circumstances changed by moving to live in a place about two to two and a half hours from where the father lives. They attend the school in the area in which they live.
The father is, on the evidence, in full-time employment. Prior to the move the children were spending either five nights (as the mother says) or six nights (as the father says) per fortnight with the father, including weeknights during the school term. After the move it is not possible for the children to spend those weeknights with the father whilst he continues to work full-time, or for the father to collect the children at the end of school on a Friday or return them to school on a Monday morning unless he changes and structures his work requirements (about which the Court has no evidence other than the bare fact of him being in full-time employment) to accommodate the at least two-hour round trip on Friday to pick up the children (the father works for an organisation in the Suburb M area) and to allow at least four hours on a Monday morning to take the children to school and return to his place of employment.
Accordingly, one effect of the change in the children’s circumstances by moving to live at Suburb A has been that the opportunities to spend time with the father have been reduced. However, the fact of that change is not the thrust of the additional consideration, but the likely effect of that change, including the likely effect on the children of that change causing a separation from the father. If the children remain living in Suburb A and have weekend time with the father on a regular basis, it will necessarily be less than the time they were spending with him, on either parent’s evidence, prior to the move. That does not mean that the reduction in time must have a detrimental effect on the children or on their relationship with their father.
The regime that the father contends prevailed prior to the move, of him spending time with the children from 6:00pm on Sunday until 9:00am on Wednesday, and then from some time on Saturday until 9:00am the following Tuesday, involved the children being with him for most of one weekend per fortnight and for three school days per fortnight, during most of which they were at school.
There is no need for the circumstance of the children living in Suburb A to prevent them spending half of each school holiday period with each parent, though the father’s application for interim orders and for final orders is silent in each case in relation to school holiday time in the event that they are living with him or with their mother. I find that, if the change in the children’s circumstances effected by the move to Suburb A is maintained by interim orders, that change need not affect the children in any adverse way in terms of their relationship with their father despite there being, in those circumstances, some reduction in the amount of time they spend with him during school term time.
Another matter to be considered in relation to the effect on the children of a change in their circumstances caused by the move to Suburb A is their attitude to their schools. Both children expressed to the Family Consultant that they are happier attending the school at Suburb S following the move to Suburb A, than they were attending their former schools prior to that move. In that regard, the likely effect on each of the children of the change in their circumstances caused by the move to Suburb A is a positive effect. They are happier attending their new school than they were attending their old school.
The practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
Another consideration with particular bearing on an interim parenting matter that involves an actual or proposed relocation of children to some distance from one parent is the practical difficulty and expense of the children spending time with and communicating with the parent with whom they do not live, and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is a practical difficulty and expense involved in the children spending time with the father if they live with their mother at Suburb A, or with their mother if they live with the father at Town F and spend time with their mother at Suburb A. That is, of course, the greater effort required to convey the children between Suburb A and Town F or Town F and Suburb A than was the case between Town F and Suburb E and Suburb E and Town F. Whilst no evidence is given as to the time and distance involved in the latter, they are both suburbs in the greater Suburb M area.
The evidence as to time for travel between Suburb A and Town F is given at about two to two and a half hours. The children do the whole of that trip in each direction at the start and finish of spending time with the non-live-with parent, their parents currently divide the travelling between them by meeting, in the main, at an asserted midpoint, being Suburb C McDonald’s, though on one weekend per month, the changeovers take place at McDonald’s at Suburb G, which is a lot closer to the mother’s place of residence at Suburb A than to the father’s place of residence at Town F.
The added expense is the cost of that travel. However, once again, it is not the mere fact of the practical difficulty and expense that is the nub of the consideration, but as to whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Travel over the distance between Suburb A and Town F, Town F and Suburb A, and the time and expense involved in that travel is not such that it need substantially affect the children’s right to maintain personal relations with both of their parents if the time they would spend with the parent with whom they do not live will occur no less than every second weekend and for half of the school holidays.
The capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs
There is not a great deal of evidence on which to evaluate the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
I note a caution that, if the father is indeed discussing or making comments, including angry comments, about the parenting issues and, particularly, the division of time with the children between the parents and the relocation issue to the children or in their presence, then he is drawing into question, to some extent, his capacity to properly provide for the children’s emotional needs by involving them in the proceedings and in the parental conflict with the possible result, as referred to above, of causing them feelings of guilt, conflict or divided loyalties. In doing so, he would be displaying an inability to shield the children from being involved in the parental conflict and an inability to prioritise the children’s needs over his own needs, wants, and desires relating to the parenting issues.
On that basis, I find that this consideration would point in favour of the children being principally in the care of the mother and spending time with the father, with appropriate injunctive orders in place in relation to the parents not discussing the proceedings with or in the presence or hearing of the children.
A reading of the whole of the evidence of the father and of the Child Inclusive Conference Memorandum to Court so far as it relates to those matters discussed between the Family Consultant and the father leads to an impression that the father’s approach to the parenting issues is governed more by what the father wants and feels that he needs for his own happiness than the needs and happiness, and best interests, of the children.
A parent’s own wants, wishes, aims and needs are real and, in the nature of life, would be present in every parenting case. However, it is a part of parenting that parents prioritise children’s needs over their own needs, particularly in circumstances of separated parents where the perfect solution of the children living full-time with each of the parents is no longer an available option. That is not to say or infer that the father does not approach this matter with a genuine concern for the best interests of the children and an honest belief that what he proposes is in their best interest, but it is to say that his judgment in that regard may be being more clouded by consciousness of his own wants and needs than it ought to be. If that is the case, then it demonstrates some deficiency in the father’s attitude to the children and the responsibilities of parenthood.
In fairness, and to achieve proper balance in the consideration, I have carefully reread all of the evidence presented by the mother, and I do not find that it reflects the same effect of representing an imbalance in prioritising a parent’s needs over children’s needs. the mother indicates in the evidence, including in the Child Inclusive Conference Memorandum to Court, that her decision to move to Suburb A was made after long contemplation, after opening discussion about the issue with the father, and on the basis that she felt the need to put distance between herself and the father, and in consequence of the father not providing any financial support or assistance to her for the children. Whilst the former would seem to be a self-focused reason, the issues that the mother referred to as grounding that reason are issues that directly relate to her day-to-day parenting of the children, free from constant intrusion by and interference from the father.
Summary of consideration of the matters in section 60CC
In weighing up my consideration of each of the primary and additional considerations set out in section 60CC I find that the balance is in favour, well in favour, of the children being in the primary care of the mother and spending time with the father.
The extent of the time that the children would spend with the father will be informed by my consideration of the issue of parental responsibility and what flows from my decision in that regard.
The advantages and disadvantages of the relocation
Advantages
Having found, on the basis of my consideration of the matters in section 60CC, that it is in the children’s best interests to be in the primary care of the mother and to spend time with the father, I now turn to consider and balance the advantages and disadvantages of living at Suburb A as opposed to living within 50 kilometres of Town F.
The advantages of the children’s move to Suburb A and of remaining at Suburb A are that they are now each attending a school where they are happy, with children who are “nicer” to them than, on their report, the children were at their former school. They are happy in the care of their mother, and their mother is happier living at Suburb A than she would be if she were living with the children within a 50-kilometre radius of Town F. That would place her in much closer proximity to the father, with her consequent fear that he would resume his daily “drop-bys”, and which would be a thwarting of her desire to live in Region B area by choice, and a restriction on her freedom of movement. Such a result would inevitably lead to unhappiness for the mother, with whatever effect, if any, that may have on the children.
The Child Inclusive Conference Memorandum to Court makes reference to a statement by [X] that:
She likes her mother’s partner, Mr T, and spoke positively about him.
That seems to be the only mention of Mr T in the memorandum. In the mother’s financial statement, sworn 16 August 2019, she indicates, at paragraph 17, that the other income earner in her household is Mr T , age 41, a friend. Mr T is referred to in the mother’s affidavit only in paragraph 91 where she says that following the sale of the Suburb E home she paid:
…$110,000 to my partner Mr T with respect to renovations which were undertaken on the property prior to sale.
Mr T is not referred to in either of the affidavits relied upon by the father at the interim hearing. Accordingly, I am not able to make an assumption or finding that Mr T is an element in the mother’s happiness at remaining at Suburb A or unhappiness if having to reside with the children within a 50-kilometre radius of Town F.
As Mr T is referred to as the mother’s partner in the one mention in the memorandum to Court and the one mention in her affidavit, and as she indicates that he is a member of her household in her financial statement as at August 2019, there is some likelihood that he is an element in the mother’s life, and an element that may have some bearing on the mother’s feelings about living in or moving away from Suburb A.
[X] has been engaged with services in Region B area in relation to her health and development needs, as evidenced by the reports from:
a)Dr O, of Paediatric practice P, located at Suburb Q;
b)A dental account from W Dentists, at Suburb G; and
c)A speech pathology assessment at University R.
In that regard, there would appear to be no particular advantage or disadvantage for [X] and her needs in that regard as between Suburb A or a 50 kilometre radius of Town F. It would seem that the necessary services are available to [X] in either location.
[X] has commenced engagement with those services in Region B area and there is consequent advantage for her in remaining near to those services, and in particular the paediatrician with whom she has already consulted.
Disadvantages
The disadvantages consequent upon the children’s move to and residence in Suburb A are that it reduces the number of nights per week during school term time that, as a practical reality, they are able to be in the father’s care due to the distance between their places of residence, the time taken for that travel, the consequent inability under normal circumstances as they prevail at the moment for the father to be involved in the children’s school attendance and at the children’s school unless he takes time off work specifically for that purpose.
The mother gives evidence that she has personally invited the father and his mother Ms Z, the children’s paternal grandmother, to attend any event the children are involved with at their new school and that she has sent the father a yearly calendar with all events listed and that, to her knowledge the father has attended two such events since the children moved to Suburb A in October 2018.
Another disadvantage of the children living in Suburb A whilst the father lives in Town F is the added expense for each of the parents in the travel involved in the children moving between their places of residence. The distance involved and the times involved are not such as to make that, on the evidence available to the Court, a burden so onerous that it presents a disadvantage outweighing, on its own or combined with the other disadvantages, the advantages to the children of living with their mother at Suburb A.
Accordingly, I find that it is in the children’s best interests to be in the primary care of their mother and to spend time with their father. I find that the advantages of the children living with their mother at Suburb A rather than living with their mother within a fifty kilometre radius of Town F are greater than the disadvantages of that circumstance.
Parental Responsibility
The father proposes that on an interim basis an order be made that the parents “have equal shared responsibility for the children”. I will take that to mean, in the terms applicable under the Act, that he proposes that the parents have equal shared parental responsibility for the children. The mother proposes that on the interim basis she have sole parental responsibility for the children and that each parent be responsible for the day-to-day decisions concerning the care of the children when the children are living with them or spending time with them.
The latter consideration need not be the subject of orders as it is fully covered by section 65DAE of the Act that provides that when children are spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult the person who has parental responsibility for the child or shares parental responsibility for the child with another person about decisions that are made in relation to the child during that time on issues that are not major long-term issues.
Section 61DA has been summarised under the heading “The Law” earlier in these reasons and relates to the presumption the Court must apply when making a parenting order that it is in the best interests of the children for their parents to have equal shared responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of either of the children or family violence.
When making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order. If the presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
I have referred to the evidence given by the mother that she was subjected to some personal abuse by the father in the course of their relationship and since separation, but I find that the evidence in that regard does not amount to family violence within the definition found in section 4AB of the Act. I have also referred to the evidence of the mother that on an occasion the father was “trying to kick the front door in”. That evidence does not go to establishing that the father was “intentionally damaging or destroying property”, an element in the definition. Accordingly, I do not make a finding in these interim proceedings that there has been family violence such that the presumption in section 61DA does not apply.
The father and mother have a very poor co-parenting relationship. In the words of the Family Consultant:
The co-parenting relationship appears to be very strained
The current strain on that co-parenting relationship would seem to stem principally from the father’s daily “drop-by” conduct while the mother and the children lived at Suburb E and the mother’s move with the children to reside at Suburb A without the father’s agreement.
I do not find that the co-parenting relationship between the father and mother is such that, on the evidence, the presumption in section 61DA is rebutted. I do find that it is appropriate to apply the presumption in these interim proceedings.
Accordingly, I will make an order that the father and mother have equal shared parental responsibility for [X] and [Y].
The time that the father should spend with the children
I will make an order that the father and mother have equal shared parental responsibility for the children. I must, therefore, consider the matters in section 65DAA of the Act that relate to the children spending equal time, or substantial and significant time, with each of their parents.
Neither parent makes application for an order that [X] and [Y] spend equal time with each of their parents.
The father’s application, at its highest, in circumstances where the children live with the mother, is that they spend six nights per fortnight with him and eight nights per fortnight with the mother.
The mother’s application is that the children spend every third weekend with the father, commencing with the first weekend after orders, from 7:30pm on Friday until 8:00pm on Sunday.
The section requires that the Court consider whether the children spending equal time with each of their parents would be in their best interests, and consider whether the children spending equal time with each of the parents is reasonably practicable. Patently, given the state of the co-parenting relationship between the parties, it is not in the children’s best interests to spend equal time with each of their parents as that circumstance would require a degree of cooperation between the parents that they have been unable to demonstrate to date, and which the increased intensity of bad feeling between them caused by the mother’s move with the children to Suburb A in October 2018 would only exacerbate.
Further than that, in circumstances where the children may live at Suburb A and the father live at Town F, it is by no means reasonably practicable for the children to spend equal time with each of their parents, the mere consideration of where they would attend school illustrating the point. Even if the children were to live within a 50 kilometre radius of the father’s place of residence at Town F, it still may not be reasonably practicable for the children to spend equal time with their parents, depending on how far from the father’s home their school was located.
As I find that it would not be in the best interests of the children to spend equal time with their parents, and that it is not reasonably practicable so to do in either eventuality of residing at Suburb A, or residing within the radius, I do not need to go on and consider making an order providing that they spend equal time with each of their parents.
Is it in the children’s best interests to spend substantial and significant time with each of their parents, and would it be reasonably practicable for them to spend substantial and significant time with each of their parents?
I have referred to the meaning of substantial and significant time as set out in section 65DAA(3) earlier in these reasons, and in the light of my consideration of the matters referred to in section 60CC I find that the children spending substantial and significant time with each of their parents would be in their best interest as that was the circumstance that prevailed, on either parties' evidence, prior to the move to Suburb A.
Further, it would, in the circumstances, maximise the children's ability to engage in and develop a meaningful relationship with each of their parents, subject to the consideration that [Y] has expressed some reservations in relation to his time with his father due to his father's propensity to anger and the effect of that on [Y]'s happiness.
However, without taking that analysis further, I note that if the circumstances are that the children reside at Suburb A and the father remains living at Town F, it is once again not reasonably practicable for the children to spend substantial and significant time with the father by spending time with him that does not fall on weekends or holidays.
In considering that it would be in the children's best interests to spend substantial and significant time with the father, subject to his refraining from conduct in the nature of anger that causes [Y] unhappiness and conduct in the nature of involving the children in the parenting issues with the resultant effect that can have on the children, it is in the children's best interest to maximise the time during term time that the children spend with the father, while still providing for them to have some weekend time with their mother.
Accordingly, I find that it is appropriate to make an order that the parents have equal shared parental responsibility for the children.
I find that it is in the children’s best interests that they live with their mother and that she may maintain the children's place of residence at Suburb A in Region B area.
I further find that it is appropriate for the children to spend as much time as possible during term time with their father, inside the constraints that the travel time between Suburb A and Town F imposes, while still providing for the children to be able to spend some weekend time each month with their mother.
Accordingly, an appropriate order would be that the children spend the first two weekends in each three weekends during school term time with their father from 6:00pm on Friday until 4:00pm on Sunday, with changeover taking place at McDonald's Family Restaurant at Suburb C on each occasion, and to spend half of each school holiday period with their father, being the first half of school holidays commencing in odd numbered years and the second half of the school holidays commencing in even numbered years, including the Christmas school holidays, and to make specific provision in relation to the parent's time with the children over the Christmas period from Christmas Eve to the day after Boxing Day, at Easter, on Father's Day, on Mother's Day and on the children's birthdays and the parent's birthdays.
I find it is appropriate to make an order restraining each of the parties from making derogatory comments about the other party in the presence of the children, or allowing the children to be in the presence or within the children's hearing of any other person who is making derogatory comments about the other parent, and to make other consequential orders to regulate the co-parenting of the children between the father and the mother.
The interim property issues
As outlined earlier, the father sought interim orders providing for disclosure to be made by the mother in relation to the circumstances surrounding the sale of the Suburb E property and as to the disbursement of the proceeds of sale, providing for the balance of the proceeds of sale to be deposited into the father’s solicitor’s trust account, pending further order, and for there to be an interim distribution to each party of $50,000.
In support of those orders, the father provided evidence in his affidavit as to the financial history of the relationship and as to those matters that are within his knowledge relating to the sale of the Suburb E property. He completed and filed a Financial Statement.
In relation to property matters, the mother sought only an order that the father provide full and frank financial disclosure pursuant to rule 24.03 of the Federal Circuit Court Rules 2001 within 14 days of orders. the mother provided evidence in her affidavit in relation to the financial history of the relationship and in relation to the disbursement of the proceeds of sale of the Suburb E property. She filed a Financial Statement sworn by her on 16 August 2019.
The Suburb E property, of which the mother was the sole registered proprietor, had been purchased by her prior to the parties commencing their cohabitation. It was sold by the mother in October 2016 for $460,000.
The mother says that after payment out of loan account secured on the property relating to its purchase she received a sum of $295,000 net from the sale and applied those moneys as to $110,000 in payment to her partner, Mr T, with respect to renovations undertaken at the property prior to sale under the trading name Company U, expended $95,000 on repayment of personal loans to her parents pursuant to a formal loan agreement relating to moneys provided by them toward purchase of that property, business loans and personal loans, and expended a sum of $65,000 in repayment of a business debt to Company L in October 2018.
Accordingly, the moneys so disbursed amount to $270,000, leaving a balance of $25,000. She gives further evidence that:
The proceeds have now been diminished, as they had been applied to the debts as detailed above.
The mother details that she has a sum of $250 in her NAB bank account.
Accordingly, on the basis of the current evidence, there is no fund available to be placed in the trust account of the father’s solicitors to be held on trust for the parties pending further order, and there is no fund available to satisfy any interim property distribution order.
The argument advanced by Mr Moutasallem for the father on hearing was that the sum of $110,000 paid by the mother to Company U was a payment to her now partner, Mr T, and that that sum or part thereof should be recovered by the mother from Mr T and applied to satisfaction of an interim distribution order, at least in favour of the father.
In support of that contention, Mr Moutasallem directed the Court’s attention to the invoice from Company U tendered into evidence by the mother as being dated 30 August 2019, a date after the interim hearing, a date seven days after that document was tendered into evidence.
On the current state of the evidence, I cannot make any finding as to the legitimacy or otherwise of the payment asserted to have been made by the mother from the proceeds of sale of the Suburb E property to Company U. I cannot make a finding as to whether or not such payment was made by the mother. I cannot make a finding as to whether or not any of the said monies, if so paid, are still retained by Mr T who, it seems, is a sole trader under the name Company U.
Further evidence would need to be adduced in the matter and Mr T joined as a party before I was able to make orders compelling the return of money from him to the mother, as on the current state of the evidence, it would require an order under section 106B of the Act reversing the asserted transaction.
It was suggested by Mr Moutasallem that I should make an order that the mother pay to the father the sum of $50,000, or some lesser sum, even $15,000. However, on the state of the evidence, I cannot make a finding that a sum of even $15,000 is available to the mother to be paid to the father and I may be making an order as requested by Mr Moutasallem on behalf of the father that ensures the mother’s failure of compliance. I am not prepared to take that course.
It is for these reasons that I indicated at the commencement of this judgment that I would not be traversing the parties’ evidence in relation to financial matters.
In relation to the order sought by the father that the mother provide disclosure in relation to the matters surrounding the sale of and disposition of the proceeds of sale of Suburb E, I will not proceed to make that order as those matters are addressed in the mother’s affidavit of 16 August 2019, and, having received that evidence, it is open to the father to institute his own further inquiries and evidence gathering on that issue.
Similarly, I will not be making the order in relation to disclosure as sought by the mother, as the disclosure referred to therein is required of each of the parties under rule 25.03 of the Federal Circuit Court Rules as information to be contained in their Financial Statement or Affidavit of financial affairs.
The father has filed a Financial Statement in the matter and rule 24.04 of the Federal Circuit Court Rules 2001 requires that the parties exchange, within 14 days of the first Court date, copies of any relevant documents referred to in that rule, a matter which both parties should now attend to, if they have not already done so.
It is for these reasons that I make the orders as set out above.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 31 January 2020
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Family Law
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