Beaufort and Beaufort
[2009] FMCAfam 191
•30 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEAUFORT & BEAUFORT | [2009] FMCAfam 191 |
| FAMILY LAW – Parenting – relocation – mother wishes to relocate to Melbourne with the children of the parties aged six and eight – consideration of the relationships between the parties and their children – the benefit of a meaningful relationship between the children and each of their parents – the mother’s happiness and the possibility of the father relocating to Melbourne. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DA, 65DAA |
| A & A: Relocation Approach (2000) 26 Fam LR 382 KB & TC [2005] FamCA 458 Fryde and Johnston (1979) FLC 90-634 Goode & Goode [2006] FamCA 1346 McCall & Clark [2009] FamCAFC 92 Miller & Harrington (2008) FLC 93-383 Rice & Asplund [1979] FLC 90-725 SPS & PLS [2008] FamCAFC 16 Taylor & Barker (2007) 37 Fam LR 461 U & U (2002) 29 Fam LR 74 |
| Applicant: | MS BEAUFORT |
| Respondent: | MR BEAUFORT |
| File Number: | SYC 2775 of 2008 |
| Judgment of: | Walker FM |
| Hearing dates: | 5 & 6 March 2009 |
| Date of Last Submission: | 6 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson |
| Solicitors for the Applicant: | Sorensen & Brown |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Barkus Doolan Kelly |
THE COURT ORDERS THAT:
The parties are to have equal shared parental responsibility for the children, [X] born in 2000 and [Y] born in 2002.
The children are to live with their mother other than on those occasions when they are to live with their father.
The children are to live with their father as follows:
3.1On each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday.
3.2Unless otherwise agreed, from after school on Tuesday of the following week until the commencement of school on Wednesday morning subject to order 3.3 below.
3.3If the father provides the mother with at least seven (7) days notice of a request to change the overnight time set out in order 3.2 above the mother must not without good reason withhold her consent to such a request.
3.4For one half of the shorter school holidays to be as agreed between the parties and failing agreement, the first half of any such school holiday in an even numbered year and the second half of any such school holiday in an odd numbered year.
3.5For the purpose of these orders, school holidays will be deemed to commence at 3.00pm on the last day of the school term for the child whose term finishes last and shall finish at 6.00pm on the day prior to the resumption of school for the child whose school resumes the new term first.
3.6The children’s time with the father on alternating weeks is to commence on the Friday of the first week of each school term.
3.7During the December/January school holiday period as set out in order 4 below.
Subject to the provisions of order 5 below, during the December/January school holiday period, for at least one half as may be agreed between the parties and in default of agreement, to be shared equally as close as possible to a week on, week about basis until
26 December and for the remaining part of the school holidays, for
14 consecutive days each, with the mother to have the first 14 days where December occurs in an even numbered years and the father is to have the first 14 days where December occurs in an odd numbered year and provided that the children return to the mother no later than
48 hours prior to the recommencement of the new school year to facilitate purchase of appropriate uniforms, books and equipment.
Unless otherwise agreed, the children will spend time with their parents on special days as follows:
5.1The children shall spend from 9.00am Christmas Eve until 11.30am Christmas Day with the father in each alternate year commencing in 2009.
5.2The children shall spend from 9.00am Christmas Eve until 11.30am Christmas Day with the mother in each alternate year commencing in 2010.
5.3The children shall spend from 11.30am Christmas Day until 9.30am on 30 December with the father in each alternate year commencing 2010.
5.4The children shall spend from 11.30am Christmas day until 9.30am on 30 December with the mother in each alternate year commencing 2009.
5.5The children shall spend Father’s day with the father and Mother’s Day with the mother.
5.6The children shall spend a minimum of 2 hours with each parent on each of their birthdays and the parent’s birthdays.
The mother is restrained from moving the children’s residence to Melbourne.
The parties shall ensure that:
7.1In the event that any of the children are ill or injured, that the parent with whom the children are living with on that day shall promptly notify the other parent.
7.2The parties shall cooperate and consult with each other concerning the medical and dental treatment for the children prior to the occurrence of such treatment so far as is practicable.
7.3The parties shall do all acts and things necessary to ensure the other party is kept informed at all times of their residential address, home telephone number, mobile telephone number, email address and all other contact numbers and details of the other party.
7.4Each party shall keep the other informed of and not do anything to impede the attendance of the other parent (and the other parent’s spouse or partner) so far as is practicable, at all events and activities in relation to the children’s schools and extracurricular activities in which each child is involved and to which parents are invited or would usually be expected to attend.
7.5Each party and the spouse/partner of each party be at liberty to attend all such events and occasions irrespective of whom the children are living with at that particular time.
7.6Each parent shall ensure that the other parent is provided with copies of school photographs, reports, school notes and otherwise keep the other informed of all school matters, functions, parent/teacher meetings, speech days, sports events, carnivals and the like.
The parties shall be at liberty to communicate with the children at all reasonable times by telephone, SMS, webcam, Skype or by email.
Neither party shall change the children’s school enrolment without having first obtained the written consent of the other party.
IT IS NOTED that publication of this judgment under the pseudonym Beaufort & Beaufort is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2775 of 2008
| MS BEAUFORT |
Applicant
And
| MR BEAUFORT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter where the mother seeks orders allowing her to relocate to Melbourne with the two children of the marriage. The father opposes this and seeks orders that would increase the time he currently spends with the children.
Background
The mother was born in 1964 and the father was born in 1965.
They married in 1991 in Melbourne where each of their families resided. Each had obtained tertiary qualifications in [omitted]. The mother worked as a [omitted] after she graduated and the father worked in [omitted].
The mother commenced work for a Sydney based company spending some part of the week in Melbourne and some part of the week in Sydney. She does not give the date but the father says this was in early 1998.
[X] was born in 2000. Initially the mother worked part-time and then she returned to full-time employment travelling regularly to Sydney. The company which employed the father acquired a business in Sydney and this provided the father with an opportunity to advance his career. In January 2001 the parties relocated to Sydney. The father progressed in his company and approximately 7 years ago became Managing Director.
Some time after the move to Sydney the mother ceased her employment and stayed home full-time with [X].
In 2002 the parties’ second child, [Y] was born.
After [Y]’s birth the mother undertook a course to work as a [omitted].
In March 2005 the parties separated.
On 19 April 2006 consent orders were made in relation to parenting and financial matters. The parties entered into a Child Support Agreement and a Financial Agreement.
A divorce was granted on 16 September 2006.
The father commenced a relationship with Ms W in approximately July 2005. They commenced living together in late 2005. Ms W had been the father’s personal assistant for four years prior to that. They became engaged to be married in November 2007 but have postponed their wedding twice because of the present proceedings.
In June 2006 the father and Ms W purchased a “knock down” property at [G] and constructed a five bedroom house which they moved into in 2008.
Towards the end of 2007 the mother purchased a house in Melbourne which she has described as an investment property.
The mother lives in a three bedroom rented home unit in [W].
Proposals before the court
The Consent Orders of 19 April 2006 provided that the parties were to have joint responsibility for making decisions about the long term care, welfare and development of the children and that the children live with their mother and spend time with their father on each alternate weekend from Friday evening until Monday morning, on one other occasion overnight each week and on such other occasions during the week as they may agree. The orders provide for the father to have one half of each of the school holidays with the children as from 2008. There are arrangements for special days, including Christmas Day.
The mother filed an Application on 13 May 2008 seeking orders in support of a relocation with the children to Melbourne. In her Minute of Orders prepared for the final hearing she sought orders permitting her to relocate from Sydney to Melbourne with the children and for the father to spend time with the children in Melbourne from 6.00pm Friday night to 6.00pm Sunday night when he was in Melbourne, for a week in each of the term 1, term 2 and term 3 school holidays, two weeks during the summer holidays and special arrangements for the public holidays over Easter and Christmas.
It was clarified during the hearing that although the mother had sought orders providing for the children to be with the father every weekend if he was in Melbourne, she did not intend that this should be the case should he move to Melbourne but rather that in that eventuality, the present orders should apply. The Court was advised that the mother had not included orders specifically relating to the father’s time with the children should he move to Melbourne because she had not anticipated that this was an option.
The mother in cross-examination said that she would not leave Sydney and relocate to Melbourne without the children if the Court refused her application. Accordingly, this is not a proposal to be considered by the Court and the father’s proposed orders in such a situation will not be considered by the Court either.
The father in his Response filed on 8 July 2008 opposed the mother’s move with the children to Melbourne.
At hearing, the father in his Proposed Minute of Orders sought a variation in the current orders for the time he spends with the children. Effectively what he sought was that the children would spend overnight time with him on six nights a fortnight and that this would occur on Friday, Saturday, Sunday and Monday nights in week one and Monday and Tuesday nights in week two. The orders also provided for half school holidays and arrangements for special days.
The father proposed that should the children live with their mother in Melbourne, and he remain in Sydney, they spend time with him on alternate weekends from after school on Friday to before school on Monday during school term, either in Melbourne or Sydney depending on whether they had compulsory sport. He proposed that these arrangements would be subject to him giving 7 days notice if he did not wish to spend this time with the children. He also proposed spending other time with the children during the school term provided specified notice was given to the mother. The orders also provided for time with the children on special days and half of the school holidays. These proposals provided for a fairly high degree of flexibility which the Court assumes reflected what the father saw as potential logistical difficulties in the children being able to travel to Sydney or in him being able to spend time with them in Melbourne.
In cross-examination the father was asked if he would contemplate returning to Melbourne if the mother was permitted to relocate there with the children. He responded that it was a difficult question because of the difficult choices it would involve him making between his relationship with his children and his relationship with his fiancé whom he understood would not go to Melbourne. He said it would also involve the loss of his career with the company. When pressed he responded that he did not know if he would go, but finally acknowledged that if orders were made allowing the mother to relocate, he would go to Melbourne.
In summary then the proposals before the Court were the following:
·The mother living with the children in Melbourne and the children spending time with their father in accordance with the mother’s proposal or that proposed by the father, or some other arrangement.
·The mother living in Sydney with the father spending time with the children as provided for in the current consent orders or with the children spending time with the father as proposed by him, or some other arrangement.
·Although the father indicated great reluctance to relocate to Melbourne, he did not rule this out as an option and accordingly that would be a further proposal to be considered by the Court.
The Rice and Asplund issue
This was raised as a preliminary issue by counsel for the father in his opening submissions. The father as noted also sought a variation of the current orders. His counsel submitted that this was in the context of the Court considering options “at large” should it embark upon a substantive hearing. It was submitted by the mother’s counsel that a proposal to relocate interstate was a sufficient change of circumstances to satisfy the Rice and Asplund rule. Reference was made to Fryde and Johnston (1979) FLC 90-634 where the Court considered that a proposed relocation was a sufficient change of circumstances.
The Full Court in Miller & Harrington (2008) FLC 93-383 has also said that at whatever stage the issue is applied, i.e. at a preliminary stage or in the context of a full hearing of the parenting dispute “the Court is bound to take into account best interest considerations.”
The first question to be decided then in the matter was whether the threshold question should be decided as a preliminary issue.
The Court decided that in this matter it would not consider the Rice and Asplund issue as a preliminary matter. The policy reasons behind the rule were considered in SPS & PLS [2008] FamCAFC 16. Relevant to the Court’s decision in this matter was the fact that the issue was first raised at the commencement of the substantive hearing, the family report had been prepared and to that extent the litigation process had already impacted on the children. It was also considered that in this matter certainty could be provided which would be of benefit to the children if there was a final determination of the mother’s relocation proposal.
The Evidence
In this matter the mother relied on her affidavits sworn on 12 May 2005 and 20 February 2009 and on the affidavits of her father, Mr T, and of her sister, Ms T, both sworn on 19 February, 2009.
The father relied on his affidavit sworn on 12 February 2009 and on that of Ms W sworn on the same date.
The court was also assisted by a Family Report prepared by Dr Ronnie Zuessman dated 11 December 2008.
The Relevant Law
The Full Court in A & A (2000) 26 Fam LR 382 suggested three steps that should be followed by the Court in a relocation matter:
·Identify the relevant competing proposals
·Consider the proposal and evidence in the terms of the relevant factors set out in the Act which the Court must consider in determining the best interests.
·Explain why one particular proposal is to be preferred in terms of the best interests of a child.
In U & U (2002) 29 Fam LR 74 the High Court considered the approach to relocation matters and said the Court may not be able in every case to treat each of the steps as discrete and explained that the objective is always the child’s best interests.
The Full Court in KB & TC [2005] FamCA 458 explained the approach as follows:
“We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s.68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
Following the amendments to the Family Law Act in 2006 the Full Court in Taylor & Barker (2007) 37 Fam LR 461 said that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of making the necessary findings in relation to the relevant section 60CC matters and that such proposal also needed to be considered in the context of section 65DAA.
The Issues
·The important issue in this matter concerns the relationship which the children have with each of their parents and the impact which a significant geographic distance between a parent and the children would have on the ability of the children to maintain a meaningful relationship with that parent.
Other issues are:
·The mother’s unhappiness in Sydney.
·The options available to the father.
The objects of the Act
Section 60B states that the relevant objects of the Act 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) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CC
Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
The Full Court in McCall & Clark (2009) noted that the Act does not contain a definition of “meaningful” or provide any specific criteria to assist how parents have, or should have, a “meaningful involvement” in a child’s life, or give guidance to the interpretation of the phrase “meaningful relationship”.
The Court considered that there were three possible interpretations of section 60CC(2)(a):
a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
The Full Court concluded that the preferred interpretation was the “prospective approach”, although it was explained that there may be factual circumstances where “the present relationship” approach may also be relevant for example in circumstances where a significant relationship has not been established between a child and a parent at the date of trial.
In this matter the Court will explore the existing relationships between the children and their parents in accordance with section 60CC(3)(b). As will be seen the evidence is that the Court can find that the children have a meaningful relationship with each of their parents and that they benefit from that. Consideration will be given in the judgment as to how, in the context of the proposals of the parties, it can be ensured that the children are able to have a meaningful relationship with each of their parents.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not a matter where these considerations are relevant.
Additional considerations
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The children are presently attending [C] School where [X] is in year three and [Y] is in year 1. The mother says that the children are happy and well adjusted and enjoy a good relationship with herself and with their father. She says that they are both intelligent children who are progressing satisfactorily at school and participate in a wide variety of sporting and artistic activities. There is no dispute between the parties about this.
The parties both said that [X] does not wish to go to Melbourne. The mother told the family reporter that he was a sociable boy and that it was likely that it would only take a “few days” for him to adjust. She said that he was gifted in sports and could easily become involved in sports teams.
The family reporter met with the children to obtain an understanding of their views, attitudes and their connection with their parents. [X] was 8 and a half at the time of the interviews. He told the family reporter that he disagreed with the move to Melbourne because “his friends are here.” He said “I need my friends.” The family reporter interpreted this as meaning that [X] was also talking about his adaptation and comfort with the world so that in that sense “he was referring to not just the friends populating the world but the familiarity with the environment.” The family reporter also reported [X] as saying the situation was like “being 100 to one, with his mother being the ‘one’”. He considered that was [X]’s way of saying that that there are a lot of reasons stacking up on one side and his mother is stacking up on another. He agreed that the comment could be open to interpretation. He felt that the children were describing feeling as if they are in the centre of a conflict and he did not want to press them more specifically on their views. It was his opinion that [X] did not quite appreciate what it might be like if his parents were living one in Melbourne and one in Sydney. It is not clear whether the father has discussed with [X] the possibility that he may find himself in a position where he would move to Melbourne.
There is little doubt that [X] in particular does not wish to go to Melbourne. Given that [X] is just eight and a half, while his views need to be acknowledged, this is not a matter where the weight to be given to them will be a strongly significant factor. To that limited extent however his views do not favour the mother’s proposal. [Y] is just six and it is not surprising given her young age that there is no evidence of her wishes.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
It is not disputed that the mother has been the primary carer of the children. She has worked part time as a [omitted] and as a contract [omitted] and has been able to organise her working arrangements so that she can collect the children from school three afternoons a week at 3.00pm. On the other two afternoons she picks them up from after school care at 4.30pm and 5.00pm. The children participate in a wide range of activities. The mother has arranged swimming, tennis and dancing on various afternoons after school. Both children play soccer on Saturdays during the soccer season and [X] plays cricket in summer. [Y] has done ballet. [X] has guitar lessons and Auskick (Australian rules skills clinic). The mother says that she involves herself in as many of the children’s activities as she can and has volunteered to be a parent helper for school reading, school swimming and school excursions. The father acknowledges in his affidavit that the mother makes the arrangements for the children’s extra curricular activities.[1]
[1] Father’s affidavit sworn 12 February 2009 at paragraph 105/18
The father says that from March 2005 when the parties separated, until the present time, he has generally spent one night mid week with the children and also alternate weekends from Friday night to Monday morning along with significant school holiday time. The mother prepared a table which she annexed to her affidavits in which she records the number of days the father could potentially have spent with the children for the calendar years 2007 and 2008. He gives an explanation of the circumstances in which he has not spent all of the time with the children which he might have done. This will be discussed later. However, there is no doubt that generally the father has spent weekend and holiday time with the children and time with them during the school week.
The parties presently live a short distance apart, about 10 minutes by road. The father says that he and his fiancé, Ms W decided to purchase a property in [G] so that they could be close to the children and their schools. They bought a “knock down” property during June 2006 and moved into the new house in 2008. The father says the location is close to the children’s present schools, their sporting and extra curricular activities and close to the private secondary schools which the father says he and the mother had discussed for the children.
The consent orders made in April 2006 included a recital noting that that there was agreement between the parties that the children were to attend [C] School or a similar Catholic primary school in the Sydney metropolitan area and that they had agreed for high school that in the future [X] was to attend either [S] College, or [T] College, and that [Y] was to attend either [M] College, or [L] School.
The father’s evidence is that he was prepared to agree to a property settlement that was more generous to the mother on the basis that she continued to reside in Sydney. The mother apparently used the proceeds of the property settlement to purchase a house which she described as an investment property in Melbourne and rented accommodation in Sydney. The mother acknowledged that she had exchanged contracts on the property she purchased in Melbourne in September/October 2007 and that settlement of the purchase took place in January 2008. She gave evidence that she bought the property in Melbourne as an investment hoping one day to move there. She agreed that when she purchased the house the father was opposed to her moving to Melbourne with the children. She also acknowledged that she originally acquiesced in the father’s request that she remain in Sydney with the children so that he could continue working in his current role with his employer.
The father works for [B], an international company involved with fast moving consumer goods. He says that since the orders of April 2006 he has turned down two significant senior overseas roles with the company, one in Germany and the other in the United States, both of which he says would have involved a significant increase in his remuneration and career advancement. He declined both of these positions he says because he wished to remain living close to his children and stay involved in their day to day activities.
The father says he has a close bond with each of the children and that he enjoys playing sport with [X] whom the parents both say is very good at sport. Indeed as mentioned, the mother told the family reporter that [X] “was gifted in this area.” The father says he plays rugby, cricket and soccer with [X] and that he helps coach with other dads at cricket and soccer training on Sundays. He says he is assistant coach for the proposed under 9’s AFL team at [X]’s school. The children both play soccer. The mother says that she arranged for [Y] to start soccer as she thought it would be beneficial for her. The father agrees that she enjoys playing with her team. He says that after the games the children enjoy going to their friends houses or having their friends come over. He says he and Ms W have attended school fundraisers and other activities but that his ability to participate in some of the children’s activities is impeded because of his necessity to work.
The family reporter had no doubt that each of the parents care about and love the children. They each acknowledged to him that the children need a relationship with the other parent. The family reporter observed that the bonding and attachment of the children to each of their parents was evident. In his view the children had a secure attachment to each parent. He did not draw any distinction between their relationships with either of their parents. He was an impressive witness and his evidence was not significantly challenged in the matter. The Court finds that the children have a close relationship with each of their parents.
The mother said that the father had not spent all the time with the children which he could have done. The father acknowledged that work commitments sometimes impacted on the time he could spend with the children. He also said that difficulties that he had in getting the mother to agree to changeover arrangements also meant that sometimes he missed out on spending time with the children. He agreed that he had spent time with the children approximately 109 out of the possible 134 days in 2007 and 113 out of a possible 143 days in 2008. His evidence was that in 2007 sixty per cent of the “lost time” was due to the mother being difficult and that this would account for about sixty five per cent of the time in 2008.
The mother says the father has “lifted his game” since her affidavit was served on him in May 2008. She says that in particular he has taken more interest in the children’s school and extra curricular activities. The father agreed that he had lifted his game. He says his involvement was raised as early as the first meeting at RA (Relationships Australia). He denied that he had “lifted his game” to prevent the mother taking the children to Melbourne but rather because he had had “the opportunity to reflect on what it means to be a father”. He said it was easier for him to relate to [Y] now that she was older compared to when she was only two and a half when the consent orders were signed.
It was put to the father that on occasions when the mother had work commitments she had approached him to have the children but that he had responded that she should “work it out”. When asked about this, the father responded “in general terms” which the Court took to indicate that this had been the case.He said that this occurred in the early stages of his relationship with Ms W when he did not want to involve her in looking after his children but that things were different now because he and Ms W were engaged. He also agreed that Ms W’s involvement with the children had increased.
The family reporter observed Ms W interacting with the children in a manner that reflected “warm relationships, close communications, and respectful and appropriate interaction.” and commented that while the relationship between the children and Ms W has developed over the past three years, there appeared to be a bonding between each of the children and Ms W. When asked in cross-examination the mother agreed that the children enjoy their time with Ms W. The Court finds that the children have a good relationship with Ms W.
The mother placed a lot of emphasis on the importance of relationships with members of the extended family. She told the family reporter that she was the second eldest in a family of 5 siblings and that her parents, as young people, had emigrated from Italy to Australia in the era after World War II. She told the family reporter that the children would benefit from establishing relationships with their cousins now and that otherwise they would be derived of those close connections.
The father was born in India and immigrated to Australia with his family when he was three years of age. He told the family reporter that his parents had a mixed cultural background including Portuguese, Dutch and Indian. He says the children remain in contact with his extended family. They were pageboy and flower girl at his sister’s wedding. He says his family come to Sydney on 2 or three occasions each year and he and the mother and the children spend more extended time staying with their respective extended families during the Christmas holiday period.
It is the mother’s case that the children would benefit from more contact with their extended family. When the mother was asked why it would be in the children’s interests for the father to commute on weekends to Melbourne to see them she responded because it was in their best interests for them to be with her and that she had family in Melbourne including the children’s grandparents, aunts, uncles and cousins. She was asked if she considered it more important for the children to see those relatives than for them to see their father and responded that she thought it was equally important. When pressed on this she responded that it was probably not true and was more important for them to see their father. In this matter the Court finds that the children presently have a relationship with extended family members of both families. On the proposals of both parties this would continue. On the basis of the mother’s proposal they would see extended family members on her side more frequently. However the evidence is that the most important relationships are with their parents.
The Court has found that the evidence is that the father has a close relationship with the children and that they enjoy spending time with him. The mother agrees with this. When asked, the mother acknowledges that the children would miss their father. She agreed that the children loved their father and enjoyed spending time with him.
The mother proposes that the father could spend time with the children on weekends from 6.00pm Saturday to 6.00pm Sunday any time he is in Melbourne and that they could also spend time with him during effectively half the school holidays. This proposal would mean that there would be a significant reduction in the time that the children currently spend with their father. The family reporter asked the mother about provisions for the children coming to Sydney on some weekends. The mother said that it was “easier for a grown man to fly to Melbourne than it is for kids to fly to Sydney.” The mother’s proposal would mean that the father would not be able to spend time with the children during the week as he does at present and that he would not have the benefit of them staying with him over the whole weekend until Monday morning as he has now.
Nevertheless the mother told the family reporter that she did not believe the children’s relationship with their father would suffer as she was “proposing longer periods of time with him.” She was cross-examined about this and said that there was extra time proposed during the school holidays. It is difficult to see how the mother’s proposal could mean anything other than a very significant reduction of the father’s time with the children. The father would not have an opportunity to be involved with the children during the week. The father sets out the activities he enjoys with the children including the days at the weekend and on Friday, Saturday and Sunday evenings. The father in his affidavit describes his routines with the children. He says that he usually saw the children on alternate Tuesdays and Thursdays when he would collect them from their mother’s house at 5.30pm and take them home for the night and then drive them to school the next morning. He says spending this time with the children means he can relax with them and talk to them at bedtime and keep up with the important things in their lives.
The mother told the family reporter that she had always planned to go to Melbourne and that the father “won’t be affected that much. He has a new family and I’ll move on.” She said that “the kids don’t know what they’re missing to be around extended family. Just a short term readjustment and he ([X]) will forget all his issues and worries about leaving Sydney.” The Court finds that these comments by the mother minimise the children’s relationship with their father and underestimate the impact on the children of her proposal to move to Melbourne.
Concessions made by the mother in cross-examination underline the difficulties inherent in her proposal in terms of its impact on the relationship between the children and their father. The mother agreed that the children would miss their father. She acknowledged if the father wanted to be involved in the children’s activities or events held during the week he would need to take time off work and come down to Melbourne. She agreed it would be harder for him to remain connected to the school community. She agreed that the father was involved in the weekend sporting activities of the children though was not so involved in the activities which the children were involved in after school, such as swimming, tennis and dance. She acknowledged that the children benefit from the father being involved in their sport and she said that she accepted that it would be harder for him to be involved if she moved with the children to Melbourne. The mother agreed, that the father had been able to create an environment that was working well for the children and that if he saw them on weekends in Melbourne they would not have this same opportunity to go to his home. The mother agreed that the present arrangements were not disruptive for the children but had become part of their routine. She agreed that nothing had come to her attention that suggested that the children did not like the present arrangements.
The father in his affidavit referred to the logistical problems of travelling frequently to Melbourne for weekends. He said although his family lived in Melbourne he would need to have accommodation where he could interact with the children as a family. He anticipated that he would need to hire a car and pay for a serviced apartment and that even then the children would have none of their usual belongings, “nor would they be staying in what they consider to be home.” He referred to the weekend sporting arrangements of the children and considered that this was another reason why enjoying time with the children on weekends in Melbourne would be unworkable. The time would be shortened because of the logistics of travel. He estimated four hours travel which would mean a late arrival on Friday evening and a departure again on Sunday afternoon. He would arrive at 8.00pm on Friday evening at the earliest and then need to leave on Sunday afternoon.
The father proposed a more flexible arrangement for his time with the children should the mother relocate with them to Melbourne and he stay in Sydney. His proposal reflects what he apparently sees as the constraint caused by the children’s likely involvement in sporting activities. It would provide for occasions when the children might come to Sydney as well as occasions when the father could travel to Melbourne during school term. It would be likely to allow for the children to spend more time with the father than the mother’s proposal. Given the children’s current weekend activities which have been encouraged by both parents, the value both parents place on team sporting involvement and the type of schooling to which they both aspire for the children, there appears little likelihood that the children will not both be actively involved in school sport at weekends during their future schooling. The father says that if the children came to Sydney on weekends when they did not have compulsory sport they would not arrive at his home until a fairly late hour on Friday and would need to leave on Sunday afternoon.
On the proposals of either the mother or that of the father, the result inevitably would be a very significant reduction of the father’s time with the children.
The father’s case is that such a significant reduction in his time with the children would detrimentally affect the quality of his relationship with them. It is hard to see that this would not be the case. The family reporter saw that there may be some advantage to the children in the promotion of relationships within the extended family if they move to Melbourne with their mother. The disadvantage, however, in his opinion was that this would disrupt already established relationships with their father and his fiancé, their social network and friends and familiarity with their environment and routines. In his opinion the proposal of the mother for the children to live with her in Melbourne and spend time with their father in Sydney, or when he visited Melbourne, “portends a degradation of the frequency and quality of the time spent with the father and his fiancé and hence disadvantages the children.” The evidence supports this opinion and also the further opinion of the family reporter that “it appears to be in the children’s best interests to be able to sustain relationships with both parents” and that “all actions by each adult should be weighed against this measure.”
The Court finds that the mother’s proposal would have a detrimental affect on the benefit the children obtain from their relationship with their father. This therefore is a consideration which does not favour the mother’s proposal.
Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother says that from the time the father disclosed to her that he was in a relationship with Ms W communication between then has been difficult.[2] She says that as time has gone by the communications between them have become worse and that things are so bad that they barely speak to each other and that communication is via e-mail or text message. The mother told the family reporter that she did not accept the relationship between the father and Ms W and indicated to him a suspicion that their relationship began before the marital separation.
[2] Mother’s affidavit sworn 20 February 2009
The mother says that she thinks that Ms W’s attitude towards her has become rude and disrespectful and refers to an incident where she arrived at the father’s house in September 2008 early on the Monday morning following a weekend the children were there to bring some items the children needed for school. She says she had sent a text that she was coming. Apparently this had not been seen by the time she arrived and Ms W on seeing her, according to the mother, called out in front of the children “you bloody idiot”. Ms W acknowledged saying “idiot” and subsequently sent an e-mail apologising for “verbalising her thoughts in front of the children.”
Towards the end of 2008 when the mother learnt that Ms W might attend a school excursion that she herself was unable to attend she acknowledged that she approached the school and indicated that she thought this would not be appropriate. She conceded in cross-examination that she would not do this again. She said she would have a difficulty if a similar situation arose but would keep it to herself.
She said however that she found socialising when the father and Ms W were present, eg at functions for parents associated with the children’s sporting activities difficult. “I cannot socialise with the father and
Ms W – I’m sorry.” The view she has taken is that whoever has the children at the time should attend.When asked in cross-examination Ms W acknowledged that the circumstances of her having been PA to the father and knowing the mother during those years caused difficulties in their current relationship. Ms W agreed that at this point of time the mother was not welcome in her home. She said the children had said to her “you hate our mum.” Ms W said she told the children that she did not hate their mother and phoned her and said “Look if you’ve got a problem with me you speak to me about it. Don’t go through the kids because you’re messing with them mentally.” Her evidence was that the mother responded to her “thanks for your concern they’re not your kids.”
Ms W says that she does not want to get upset in front of the children and thought it was “probably best to cut it off at the door until we can be on more civil relations.” She added that she would never say that the mother can never come into the house and hoped that things would get to a better level.The tension caused by difficulties in the relationship between the mother and Ms W is reflected in [Y]’s observation to the family reporter that “When dad comes to pick us up mum lets him in, but when mum comes dad won’t let her in.”
The family reporter commented that it appeared to him that the mother perceived Ms W “to represent some threat of displacing the maternal role”. His opinion was that there had not been a displacement of the maternal role. There is no reason why the Court would not accept this.
There seems to be little doubt that the strained relationship between the mother and Ms W has caused difficulties at times in negotiating changes to arrangements for the children to spend time with their father.
The father says that the mother has refused to allow Ms W to collect the children or return them to her. The mother says this is only the case if the father is not at home. The father refers to a recent occasion when he did not return from an overseas trip until early on Saturday morning. The practice apparently has been for him to collect the children at 5.30pm on Friday evening. The father annexed an e-mail to his affidavit in which he advised the mother that his flight did not arrive until Saturday morning and asking the mother if she wanted Ms W to collect the children from school at 3.00pm, the mother’s home at 5.30pm or whether the mother would drop the children to his home at 5.30pm. The mother’s e-mail in response advised that the children would be available for the father to collect upon his return on Saturday morning. The mother was cross-examined about this. She said she had no objection to Ms W picking the children up if the father was at home. However she did object if the father was not at the home because he was late. From the father’s point of view he would have liked the children to come in the evening so that they were there for him in the morning when he arrived home.
In his affidavit the father says that he believes that if the children were living in Melbourne with the mother he has concerns that the mother would take steps to diminish the relationship he has with the children. He told the family reporter that there is “no co-operation when I live 10 minutes away, what’s going to happen when I live in another state.” In cross-examination he said that possibly he should have said limited co-operation rather than no co-operation.
The family reporter observed that there appeared to be an atmosphere of mistrust between the parents as well what he described as a fundamental disagreement about the difference between their personal needs and the best interests of the children. He described the level of co-operation that was evident when he did the Family Report as “somewhat mixed”. In cross-examination he said there were “aspects” of co-operation between the parents.
The father was asked if he thought there was mistrust between he and the mother. He said there used not to be but that there now was around the Court case. He gave as an example his agreement to the mother’s request that the children spend a day with her when they would otherwise have been with him so that they could see the maternal grandmother who was having cancer treatment at the time. He said this was included in his “missed” time in the mother’s table.
The father said work commitments were one of the reasons he had not been able to take up all the time with the children provided for in the orders. He said that school holidays were a particular problem because he found it hard to take big blocks of time. His evidence was that alternating Tuesdays and Thursdays could also cause a problem and that if he requested the Monday or Wednesday instead there was no response from the mother.
The mother was cross-examined about arrangements for the children to see the father’s parents when they were in Sydney on Father’s Day 2008. The father said that he had organised for his parents to make a trip to Sydney to celebrate Father’s Day. The children were due to come to his home for lunch and he says he asked the mother if the children could stay on Sunday night so that they could spend further time with their paternal grandparents. He said he was to collect the children the next morning for a Father’s Day breakfast at the school at 8.00am which the paternal grandfather would be attending. The mother agreed that the father had made this request of her. The mother declined the father’s request. When asked in cross-examination why she did so, she responded that the children had spent the day with their father in accordance with the Court orders. In the past, she said, they had not spent the entire day on Fathers Day with him. She said that she had had a prior arrangement to meet friends for dinner in the evening. While she described this as a long standing arrangement in her affidavit she acknowledged in cross-examination that the arrangement had been made a week ahead.[3]
[3] Mother’s affidavit sworn 20 February 2009 at paragraph 35
The mother was asked whether she thought it was more important for the children to go to dinner with the friends in these circumstances rather than spend more time with their father and grandparents visiting from Melbourne. She said “it was important to me.” She agreed that after the children returned from their father’s home they did not in fact go to dinner with the friends. She said the children were tired. This incident did not reflect well on the mother’s willingness to facilitate the children’s relationship with their father and his family.
The father says that on numerous occasions he has requested the mother to allow the children to spend an extra night with him during the week but that she has always refused saying “mid week days are just too hard” or “no, that’s my time.” The mother appears to agree that this is the case.[4] She refers to an occasion the father wished to have the children an extra mid week night to make up for a night missed the preceding week. The mother says she was concerned about the children staying over two nights during their first week back at school and suggested a Saturday night which did not suit the father. When he asked again about mid week she says she responded “Sorry, I think that more than one mid week stay is too disruptive and tiring for the kids, especially in their first week back at school.”
[4] Mother’s affidavit sworn 20 February 2009
For her part the mother also says that on occasions when she has sought assistance from the father he has not helped. She told the family reporter at times she felt she was a paid babysitter. The father agrees that there have been occasions when the mother has sought his assistance with the children. He says that he and the mother have occasionally been able to agree on some variations to the orders to swap arrangements for the children. He says he could have assisted with short notice if the mother was “prepared to allow Ms W to collect the children rather than insisting on him being personally present at all times.” He says that because the mother often contacts him “at the last minute” he finds it difficult but he says he would be more than willing to assist if he was given more notice.
Nevertheless, the parties do give some examples of co-operation. The mother says she agreed for the children to spend a weekend with their father and a mid week stay when the paternal grandparents were in Sydney in June 2008 and that she had the children for an extra weekend and mid week occasion when the father and Ms W went overseas for a business trip and holiday. When the mother went overseas with her sister on two holidays, one to Fiji and one to New Zealand, the children stayed with their father.
Although the parties have been separated for four years and although there are “aspects of co-operation” as described by the family reporter, the evidence is that there remains some difficulties in co-operation between them. Should the mother relocate with the children to Melbourne and the father reside in Sydney arrangements for spending time in Melbourne would require a good deal of negotiation between the parties. The father’s proposal is that there would be times when he would like the children to come to Sydney. The Court must find that there would be greater challenges to the parties co-operating in such arrangements if the parents were located respectively in Sydney and Melbourne. This is a consideration that does not favour the mother’s proposal to relocate to Melbourne with the children.
Should the father relocate to Melbourne with Ms W there is no reason to think that the current difficult relationship would improve. If anything, on the evidence it would be likely to deteriorate. Should the father move to Melbourne without Ms W one can only agree with the submissions of his counsel that he would be a very embittered man as the family reporter said it would “not bode well for his relationship towards Mrs Beaufort.”
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
Given the evidence of the children’s relationships with each of their parents as set out above, the Court finds that it would not be in the best interests of the children to be separated from either of their parents to the extent that would follow from the parents living in different states. It is inevitable that the mother’s proposal for the children to spend time with their father if they are to live in Melbourne with her and he remains in Sydney, will significantly reduce their time with him and the opportunities they currently have to participate in activities with him, both on weekends and during the week. This consideration does not favour the mother’s proposal.
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This has already been identified as a significant issue in the matter.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
The family reporter was cross-examined abut the mother’s unhappiness with her situation. He was asked by counsel for the father whether he observed anything about her unhappiness which suggested that she was unable to properly parent the children. He responded that he did not see any concerns about the parenting capacity of the mother.
Certainly the evidence in the matter is that both parents have the capacity to provide for the needs of the children. There was no issue that the children are happy and well adjusted though affected by the conflict between their parents. It is agreed that both children are doing well at school and participating in a wide variety of sporting and artistic activities.
This consideration does not favour any particular proposal before the Court.
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no further issues that arise for consideration. The parents both have a Catholic religious background. They agree about the type of school which the children should attend.
Section 60CC(3)(h) requires the Court to consider if the child is an Aboriginal child or a Torres Strait Islander child; the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant.
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The evidence is that both parents have fostered the children’s rounded development. Both have encouraged their relationships with extended family members. The Court would find that both parents demonstrate that they take the responsibilities of parenthood seriously.
This factor does not favour any particular proposal before the Court.
Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family
This consideration is not applicable in the matter.
Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person;
This consideration is not applicable in the matter.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.
The mother’s case is that she finds it difficult to socialise in Sydney and establish friendships because she is a single woman. She also indicated that she did have social invitations but she said she was frequently unable to accept these invitations particularly if they involved activities at night because she did not wish to leave the children with babysitters. She agreed that she had friends in Sydney she could call on in emergencies and friends who could assist her. She agreed that she participated in the many social functions linked with the activities of the children, both associated with the school and with their extra curricular activities. She included a long list of these activities of the children in her affidavit. She acknowledged that she had made friends through these activities but that she did not socialise a lot. She said this was because she was a single woman and that it was difficult as most other people involved were married couples. She was asked whether as a single woman she would find herself in a similar position in Melbourne. She responded that she would have her family and friends she had had all her life and “won’t be judged.” She says that her family would be able to help look after the children if she had work commitments or was ill. She says that her family would provide her with “the unconditional love, sense of belonging, strength and positive affirmation” that she “is sorely missing in Sydney” and that she believes that she will be much happier in herself if she is able to live in Melbourne.
It was submitted on behalf of the mother that where the prime resident parent is happy and feels part of a family situation that there would then be a beneficial effect on the children. The case of Taylor & Barker was cited as authority for the relevance of this consideration in a relocation situation. The Full Court in that case noted that the matter involved a difficult and finely balanced decision where the mother wanted to marry and live with the father of her second child. The Court considered that the magistrate was not wrong in elevating the factor of the mother’s happiness and contentment together with the impact on the mother and the subject child of her not being permitted to relocate and join the man she wished to marry. The decision in Taylor & Barker reflected the particular facts of that case. This matter of course has its own different set of circumstances.
The family reporter asked the mother what would occur if she did not relocate to Melbourne and that she responded that she would shift further out from the centre of Sydney because of home affordability, and would work as [occupations omitted]. She told the family reporter that she could not compete materially with the father but thought that being able to provide the children with a house in Melbourne, being able to be employed in an [omitted] role and have the support of extended family would benefit the children. She said that suitable affordable housing was not available in Sydney, extended family support was available in Melbourne and suitable employment was available to her in Melbourne.
In cross-examination, however, she acknowledged that financial considerations were not a significant part of her reasons for moving to Melbourne. The mother says her plan was to work less in Melbourne and that she intended only to work in school hours because she enjoyed picking up the children. She agreed that working less hours would reduce her income. She agreed that money was not an issue in her wishing to leave Sydney although she said she could not afford to buy a house in Sydney. The mother agreed in cross-examination that she receives $3,100.00 per month in child support from the father, $625.00 a week from the rent of her property and $900.00 per week in income. It was acknowledged by her counsel in submissions that she did not say that money was a factor.
The family reporter’s opinion was that while it was natural to seek the support of extended family members and that it was positive for children to encourage their relationships with members of the extended family, “the matter of support appears to be focused more on the mother’s felt need rather than the children’s experienced need.” The evidence in the matter supports this conclusion.
The Court finds that at least part of the mother’s motivation in wishing to move to Melbourne with the children is to move away from the father and Ms W. In his submissions counsel for the mother contrasted the circumstances of each of the parties. He said “there is a happy family unit as far as the husband is concerned and so far as the wife is concerned, she says she feels isolated.”
The mother told the family reporter “I need to move away from them” referring to the father and Ms W. She also said “I feel like I am in a holding pattern, watching life go by…bad memories…and having you two just two minutes up the road is not okay. I don’t have anyone to be there for me – you won’t, so I will go and find it for myself.” The mother agreed in cross-examination that she had said that she wanted to get away from Ms W. She did not dispute the comments attributed to her by the family reporter.
The family reporter suggests in his report that the mother is yet to come to terms emotionally with the father living nearby with Ms W. If the father was to move to Melbourne and if Ms W accompanied them, the mother would still be faced with the prospect of regularly needing to be involved with them. The family reporter has recommended that the parents live within one half hour travel time of one another in Sydney. The same reasons for this proximity would apply if the father and
Ms W lived in Melbourne.
The family reporter commented that “If Mr Beaufort and his fiancé also moved to Melbourne then the children would not suffer disruption in the key relationships, and a more balanced schedule of the children spending time with the father could be arranged.”[5] The father was asked in cross-examination whether he would contemplate returning to Melbourne if the mother was allowed to relocate there with the children. He said that was a difficult question because it would involve a choice of a relationship between his children and his new partner. He did not want to be a distant father. He said he had discussed the possibility of going to Melbourne with Ms W but she did not want to move to Melbourne. He said he did not want to have to make a choice between his children and Ms W.
[5] Family Report paragraph 113
The father said the children have a close relationship with Ms W. The father and Ms W have postponed their wedding on two occasions because of the proceedings. The father was asked if there was any way he thought that Ms W would contemplate moving to Melbourne. He responded that all his discussions would lead him to believe that it would not happen.
Ms W was asked in cross-examination what her attitude would be about going to Melbourne to live with her fiancé if the mother was permitted to relocate to Melbourne with the children. She responded that she had thought about this and that “at this point of time I don’t think I would – I wouldn’t like to move to Melbourne.” She said that she and the father have worked hard to establish a nice home for the children and hopefully to extend their family and raise their children. She was asked “so is the answer you wouldn’t?” To which she replied “I don’t think I would no.” She was then asked if she loved
Mr Beaufort and wanted to spend the rest of her life with him, to which she responded “yes.” She was then pressed further “if he felt compelled to go to Melbourne, you’d make the choice to follow wouldn’t you?” She responded “I would make the choice if that was what the decision is.” It is fair to conclude that it is not certain from this what Ms W would do. The father’s evidence is that he believes she would not go. There is no doubt that she is extremely reluctant to go to Melbourne especially as she is anticipating having her own children and on the evidence is very close to her family in Sydney.
The father’s evidence is that he would not be able to stay with his present employer. His role in that company relates to the Australia/New Zealand region. The Australian office is based in Sydney. He says that while the company also operates within Victoria, only a sales office is located there and that it would not be possible to seek a transfer within the [B] organisation to Melbourne. The father says that in the current economic climate he anticipates that it would be extremely difficult for him to find employment of a similar standard in Melbourne. He says he has spoken to recruitment consultants and expects that it would take more than 12 months to find such employment and that in an improved economic climate from 6 to 12 months.
He said he had not discussed with his employer a way for him to continue working for the company in a Melbourne location because they had previously made allowances for him when he declined previous overseas positions so that he could stay in Sydney near the children. He told the family reporter that financially it would ruin him in that he would have to give up his job and start again in Melbourne and that he would not be able to give a “step up to the kids”. He said “that’s all lost.”
The father said it would be difficult to give up his job at the company where he had worked for 15 years and where he had risen to the position of Managing Director.
He said that if the Court made an order allowing the mother to relocate with the children the answer would be that “I’d have to, because I don’t want to be a distant father. It would involve basically destroying four people’s lives.” He said what he meant by this was Ms W’s life, his life, and that of [X] and [Y]. He said it would mean that [X] and [Y] would no longer have contact with Ms W whom [Y] has known since she was two and a half and that the children would be giving up everything that they know in Sydney and that [X] with either Ms W, any children she had, or with [X] and [Y].
The conflict for the father was identified by the mother who told the family reporter that the father would be “torn between his new wife and babies and the older children.” She told the family reporter that the father had said to her that if she forced the issue he would quit his job, leave his fiancé and move to Melbourne. She noted that he had postponed his wedding in both April and November and said “Ms W won’t go to Melbourne so he’s between a rock and a hard place.”
It was submitted on behalf of the mother that Ms W’s evidence was not a definitive “no” that she would not go to Melbourne and that it was not out of the question that the father would be able to relocate there. It was further submitted that the father was “quite definite” when asked what he would do if the Court made an order that he would go to Melbourne. In the event that the father had a change of heart, (i.e. stayed in Sydney) the mother’s counsel argued, the Court would be confident that he would still be able to have substantial and significant time with the children.
There is no doubt on the evidence that a move to Melbourne by the father would place enormous strain on his relationship with Ms W. The mother’s evidence is also that this would be the case. In the father’s view it could end the relationship and their plan to marry and have a family. Potentially it could result in the father moving to Melbourne without his partner and his employment. While a move by the father to Melbourne would mean the children would still have the benefit arising from the close relationship with him the evidence indicates that there would be likely to be certain negative consequences as outlined, which could impact on the children such that overall this would be less in their interests than continuing the present situation where both parents remain in Sydney.
Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.
This consideration raises no issues beyond those already discussed in the matter.
Parental responsibility
Section 61DA(1) states that 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
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. This is a matter where there are no issues of family violence or abuse. The findings made about the relationship between the children and their parents indicate that there should be an order for equal shared parental responsibility in relation to the children. This is not essentially different to the current order.
Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(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.
This is a matter where equal time was not sought by either of the parties. While the father considers that it is in the best interests of the children that they remain living in Sydney where there is an opportunity for the children to be cared for by both of their parents,[6] he does not seek equal time.
[6] Father’s affidavit sworn 12 February 2009
The recommendations of the family reporter are that the children’s best interests would best be served if they lived with their mother and had significant and substantial time with their father. This recommendation was not challenged by either party. In the circumstances of this matter the Court would not find that it would be in the best interests of the children to spend equal time with each of their parents. It would of course not be reasonably practicable on the basis of the mother’s proposal to relocate with the children unless the father also relocated. It would be reasonably practicable if both parents lived in Sydney.
Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.
As noted the recommendation of the family reporter was that the children should live with the mother and spend significant and substantial time with their father. Certainly the present arrangements reflect these recommendations. When asked by the father’s counsel in cross-examination the mother agreed that the present arrangements are working well, that they did not cause disruption to the children and had become part of the children’s routine.
The Court has found in this matter that the children have close relationships with each parent and enjoy the time they spend with each parent and that each of the parents has an involvement with important activities of the children.
This is a matter where the Court finds that it is in the best interests of the children that they live with their mother and spend substantial and significant time with their father.
Counsel for the mother submitted that if the children live with the mother in Melbourne and the father was in Sydney, the mother’s proposals would allow the children to spend substantial and significant time with their father. He said “If the children went to Melbourne, he would still be able to spend substantial and significant time, albeit that it would not be quite as it is now.”
As discussed, the Court finds it difficult to see how this would be the case under the mother’s proposal and in particular how it would satisfy the requirements of section 65DAA(3) which provide that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The alternative proposal set out by the father for his time with the children in the event the mother lived with the children in Melbourne and he remained in Sydney would also in reality be unlikely to provide for substantial and significant time between he and the children because of the logistical factors discussed previously. It is difficult to identify any arrangement which would allow for the children to spend significant and substantial time with the parent with whom they were not living if the other parent resided interstate.
The Court has considered the possibility of the father also relocating to Melbourne and found that it would be more advantageous for the children if both parents remained in Sydney. Obvious issues arise should the father relocate to Melbourne without Ms W. Further issues arise of course if she decided also to go with him. Proximity of residence is recommended by the family reporter in the interests of the children. Should Ms W decide to move to Melbourne with the father one of the mother’s motives for moving will not have been achieved. There is no doubt that the move would at the same time inevitably be associated with difficulties for the father both in his relationship with Ms W and of course in his employment. No doubt this would not enhance the prospects of the development of a more cooperative relationship with the mother which the family reporter says is in the best interests of the children.
[X] of course, wishes to stay in Sydney. He is young and not such significant weight can be placed on this but it is a consideration to take into account in the overall balance of factors relevant to the best interests of the children.
The father has sought an order that would have the effect of increasing his time with the children and concentrating it more in a larger block of time. The proposal would mean that the children spend overnight time with him on six nights a fortnight on Friday, Saturday, Sunday and Monday nights in week one and Monday and Tuesday nights in week two. This is compared to the present arrangement under which the children spend time with him on Friday, Saturday and Sunday evenings and on one other occasion overnight each week. The proposal is not specifically addressed in the affidavit filed by the father in the proceedings although the father in that affidavit does give some evidence about potential flexibility in his work arrangements in the context of proposing that the children live with him should the mother relocate to Melbourne.
When cross-examined about the father’s proposal the mother said she would not accept this arrangement. She acknowledged that if orders were made in terms of the proposal she would make it work. Because of the timing of this proposal it had not been considered in the context of the preparation of the Family Report. The Family Report therefore did not contain any opinion about the impact of such a proposal on the children. The proposal was shown to the family reporter during cross-examination and he was asked whether he saw the proposal as an arrangement that would be in the children’s best interests. His response was “that seems to be a method of providing the children with fewer changeovers than some patterns and it is better for the children to be able to have fewer changeovers, to have more length of time in one location and for it to be easily predictable.” The family reporter did not otherwise elaborate on the proposal. The Court could not discern whether this was because he had just seen it or whether he could see nothing else about it which pertained to the children’s best interests.
To the extent to which the proposal provides for less fragmented time it may, as the family reporter indicates, be of benefit to the children especially as they are older now and on the evidence of their relationships with their parents likely to be more comfortable spending a longer period of time away from a parent. An increase in the number of days however does raise some other issues. While the father says in his affidavit that his work arrangements can be flexible he does not provide much specificity about this. He says “my partner, Ms W, would assist me to take care of the children, both before and after school as she is not working and we do not plan that she will be working in the near future. We remain hopeful of having children ourselves.” It is inevitable then that the care of the children when the father was not at home would be the responsibility of Ms W. The children have a good relationship with Ms W but their major attachment figures are their parents. A proposal which would mean that the children would spend less time with their father, while on the evidence before the Court would require substantial assistance from Ms W’s in the father’s absence is not in their best interests.
Conclusion
The Court considers that it is in the best interests of the children to consolidate their time with their father to a greater degree than is provided for in the present orders but not to significantly reduce the amount of time the children spend with their mother.
The orders will provide that the children are to be collected from and returned to school when they spend time with their father, unless otherwise agreed. This was part of the father’s proposal and may reduce some of the difficulties identified in the evidence about the collection of the children should the father be travelling. It would also mean that if the father can have any flexibility in his work arrangement, potentially he can spend more time with the children. The Court will also include an order which may make it easier for the father’s time with the children during the week to be adjusted between the parties.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Walker FM
Associate:
Date: 30 June 2009
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