BEENEY & JENNER - [2013] FCCA 1937

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEENEY & JENNER

[2013] FCCA 1937

Catchwords:
FAMILY LAW – Interim relocation – relocation of a parent – where mother lives in Melbourne – where father lives in Sydney – where father proposes the mother relocate to Sydney with the children – where father does not propose that the children live with him.

Legislation:

Family Law Act 1975, ss.4(1), 60C, 60CA, 60CC, 61C, 61DA, 61DB, 65DAA, 65DAC, 65DAE

B & O & M [2005] FMCAfam 379
Ember & Assadi [2013] FamCAFC 107
Goode & Goode [2006] FamCA 1346
M & K [2007] FMCAfam 26
Morgan v Miles (2007) FamCA 1230
Newlands & Newlands [2007] FamCA 168
R & R: Children’s Wishes (2000) FLC 93-000
Re K (1994) FLC 92-461
Sampson v Hartnett (No.10) (2008) 38 Fam LR 315

Applicant:

MR BEENEY

Respondent:

MS JENNER

File Number:

SYC 4601 of 2013

Judgment of:

Judge Kemp

Hearing date:

12 November 2013

Date of Last Submission:

12 November 2013

Delivered at:

Sydney

Orders made:

20 November 2013

Reasons Delivered on:

21 November 2013

REPRESENTATION

Solicitors for the Applicant:

Ms Godden of Granger Godden Lawyers

Respondent:

Self-represented

THE COURT ORDERS AS MADE ON 20 NOVEMBER 2013 AND PENDING FURTHER ORDER:

The children X born (omitted) 2009 (“X”) and Y born (omitted) 2012 (“Y”) (“the children”) live with the mother in Melbourne.
The children spend time with the father on alternate weekends or on such weekends as are specified by the father on 14 days written notice to the mother provided that such time is no more frequent than alternate weekends, or as otherwise agreed in writing, as follows:

(a)With X from 4.00pm 21 November 2013 until 4.00pm 22 November 2013;
(b)With X from 8.00am Saturday until 4.00pm Sunday commencing 23 November 2013;

(c)For a period of 3 months from the date of these orders:
(i)From 8.00am to 11.00am Saturday and 2.00pm to 4.00pm Sunday.

(d)For a 3 month period from the end of the 3 month period in order (2)(c):
(i)From 8.00am Saturday to 2.00pm Saturday and 2.00pm to 4.00pm Sunday.

(e)As and from the end of the 3 month period in order (2)(d):
(i)From 8.00am Saturday to 4.00pm Saturday and 2.00pm to 4.00pm Sunday.

These proceedings be transferred to the Melbourne registry of this Court, to be listed for mention on 17 February 2014 at 9.45am.
An Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of Victoria is requested to implement that representation.
The parties to provide to the said Commission all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoenas.

THE COURT ORDERS ON 21 NOVEMBER 2013 THE FOLLOWING:

That the words “in Melbourne” be inserted after the word “father” and before the words “on alternate” where appearing in order 2 made on 20 November 2013, as referred to above.

IT IS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BEENEY & JENNER

Details

AGLC: Beeney and Jenner [2013] FCCA 1937
Case: [2013] FCCA 1937
Decision Date: 20 November 2013

CaseChat Overview and Summary

This case concerned a dispute between a mother and father regarding the proposed relocation of the children. The mother resided in Melbourne with the children, while the father lived in Sydney. The father proposed that the mother relocate to Sydney with the children, but did not propose that the children live with him.

The court was required to determine the best interests of the children in the context of this proposed relocation. This involved an examination of the factors set out in section 60CC of the Family Law Act 1975 (Cth), including the objects and principles underpinning the legislation, and the primary and additional considerations relevant to determining the children's best interests.

The court reasoned that the best interests of the child are paramount and are to be assessed by weighing the factors outlined in section 60CC of the Act, guided by the objects and principles in section 60B. The primary considerations are the benefit of a meaningful relationship with both parents and the need to protect children from harm. The court noted that it cannot create meaningful relationships but can create circumstances that make them possible. In this instance, the court found that the children had a meaningful relationship with the mother, and the father's relationship had been impacted by geographical distance and the children's ages. The court also considered additional factors, including the children's views (which were not sought due to their age), the nature of the relationship with each parent, the extent to which each parent had participated in decision-making and spent time with the children, and the practical difficulties and expenses associated with the children spending time with each parent.

The court ordered that the father's time with the children would occur in Melbourne, with 14 days' written notice to the mother, and would be no more frequent than alternate weekends. The court varied previous orders to specify that the father's time would be "in Melbourne" after the word "father" and before the words "on alternate" where appearing in order 2. The court also noted that the father's proposal did not involve the children living with him, acknowledging that it was likely in the children's best interests to remain with their primary caregiver, the mother, given their ages and the father's limited time with the younger child.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:(1) The “objects”…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. (2) The “principles” … are … :(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and (b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) Parents should agree about the future parenting of their children; and(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture. (4) In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( considerationsIn order to determine the children’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:a)the benefit to the children of having a meaningful relationship with both of their parents; and b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration referred to in paragraph 90(b) above. See s.60CC(2A) of the Act. The Court cannot order that the parties and the children have a meaningful relationship. In M & K [2007] FMCAfam 26 [at para 44], Altobelli FM (as he then was) quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:“… courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.The Court finds that the primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the position that as much time as possible with both parents is in the children’s best interests. The Court accepts that the children have a meaningful relationship with the mother and, that the father’s relationship has been affected by the geography of the mother being in (omitted) Queensland with the children, the father’s move to Sydney and then the mother’s move with the children to Melbourne, with the father having not spent substantial time with X and having spent very limited time with Y, given his age and the date the parties separated.The primary consideration referred to in s.60CC(2)(b) of the Act is largely inapplicable for the purposes of the application before the Court, given the parties’ competing parenting proposals. However, matters raised by both parties support the appointment of an Independent Children’s Lawyer.Additional considerationsThe Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:(a) 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; In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”Considering the age and maturity level of the children, the Court simply notes and accepts that their views were not sought nor expected. (b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); The mother’s evidence was that she has been the children’s primary carer since their birth and this is not largely disputed by the father, given his employment history. Significant weight is attached to that. The mother has been caring for the children almost exclusively since the parties’ separation.The father has spent overnight time with X but only limited day time with Y. The children have been separated at such times.There is nothing before the Court to assess the position of Y spending overnight time with the father and the potential effect of that on the child. This is a matter which requires some further investigation and the Court will be assisted by the intervention of the Independent Children’s Lawyer in that regard.(c) the extent to which each of the child’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 child; and(ii) to spend time with the child; and(iii) to communicate with the child;The father is critical of the mother’s recent move to Melbourne but the Court notes that the father moved to Sydney in July 2012 when the mother and X were living in (omitted), Queensland and the mother was due to give birth to Y approximately one month later. The father says that the mother’s move to (omitted) Queensland had not been agreed to. The mother disputed that. The father, however, took no steps to commence proceedings in December 2011 when she made that move and the father at that time, had remained living in Brisbane. Weight is attached to that.The father agreed that the mother had invited him to attend Y’s birthday in (omitted) Queensland in (omitted) 2013. That invitation evidences a willingness of the mother to involve the father with Y and the father took up that opportunity of being so involved, albeit the father says that he did not at that stage, end up spending any time with Y on his actual birthday.(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;The mother’s evidence was that the father was not regular and consistent with making his obligated child support payments. It appeared common ground that the father was currently facing a garnishee order with respect to outstanding child support.(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; If the mother continues to reside in Melbourne with the children there will be no current change in their circumstances. If the mother was required to relocate the children’s residence to Sydney, there would be changes for them in their residence and day care provider.(e) 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;The father’s evidence as set out at paragraphs 46 and 47 raises practical difficulty and expense issues for him in continuing the travel to Victoria in order to spend time with the children. The mother’s financial position did not appear to be able to assist in that process. The Court is of the view that given those issues there should be some latitude to the father in spending weekend time by providing 14 days written notice to the mother provided that, at this point in time, the frequency of such time is no more than alternate weekends.As a matter of practicality, the father’s time will need to occur in Melbourne, Victoria and the Court’s orders made 20 November 2013, as set out at the commencement of these reasons will be varied to include the words “in Melbourne” after the word “father” and before the words “on alternate” where appearing in order 2, as set out above. (f) the capacity of: (i) each of the child's parents; and (ii) 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 mother’s evidence was that she was able to provide for the children’s physical needs. The mother did not appear to fully consider how their emotional need to maintain contact with the father could be fostered other than through the father making all of the efforts to effect the same by travelling to Victoria. Given the current ages of the children and her financial position, as asserted, that poses some real issues.The father’s proposal did not provide for the children to live with him. More than likely this was because the father had given due regard to not separating the children from the mother and, at least at this stage of their lives, their primary attachment figure and that given the age of Y and the fact that he has not at any time spent any significant time with the father, that it was in the best interests of both children that they remain living with the mother.