Boston and Wellham

[2009] FamCA 33

FAMILY COURT OF AUSTRALIA

BOSTON & WELLHAM [2009] FamCA 33

FAMILY LAW – CHILDREN - Best interests - significant travel time and expense between residences

Family Law Act 1975 (Cth)

APPLICANT: Mr Boston

RESPONDENT: Ms Wellham

FILE NUMBER: MLC 1067 of 2007

DATE DELIVERED: 9 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Piggott

COUNSEL FOR THE RESPONDENT: Mr Arnold

SOLICITOR FOR THE RESPONDENT: M Davine & Co

Orders

1. That paragraph 4(a) of the orders made on 5 March 2007 is varied to alter the commencement time and conclusion time to 6.30pm or as otherwise agreed.

2. That on each alternate weekend commencing on the Friday, the wife deliver the child … born … August 1997 to the husband at the Southern Cross Railway Station at 6.30pm or at such other place as may be agreed.

3. That on each alternate weekend concluding on the Sunday, the husband deliver the child to the wife at the C Service Station on the outbound direction at 6.30pm or at such other place as may be agreed.

4. That the applications of the husband filed 6 November 2008 and 17 November 2008 and the response of the wife filed 25 November 2008 be otherwise dismissed.

5. That all proceedings be removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That my reasons this day be transcribed and be made available to the parties.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1067 of 2007

MR BOSTON

Applicant

And

MS WELLHAM

Respondent

REASONS FOR JUDGMENT

1. On 6 November 2008, the husband filed an application seeking parenting orders.  Why the application was filed in the Family Court of Australia rather than in the Federal Magistrates Court, I am not sure, but in any event, the matter is here.

2. On 17 November 2008, the husband filed an application seeking interim orders.  That application sought that for the purposes of his time with the child, the wife was to deliver the child to the father’s place of residence at the commencement of the time and then collect him from the same place at the conclusion of the time, notwithstanding that she might move to any other location within the state of Victoria.

3. On 25 November 2008, the wife filed a response seeking final orders.  The only relevant one for my purposes is that she sought an order that she deliver the child to his father at the C service station inbound at the commencement of the time that the father was to spend with the child and the same location at the conclusion of that period of time.

4. Although the mother did not seek interim orders, it is common ground that she opposed the father’s interim application. On 14 December 2008, Registrar Riddiford made directions adjourning the interim issue to the judicial duty list today.  In fairness, there was another issue as well but the parties, for reasons best known to them, decided not to proceed with that.

5. Notwithstanding the interim nature of these proceedings, the parties have agreed to my hearing it on a final basis.  Each relies upon the affidavits which they have filed and each has chosen not to challenge the evidence of the other.

6. Throughout the reasons that I am about to give, I will refer to the parties as "husband and wife" notwithstanding they were divorced on 4 June 2007.  My reference to them as husband and wife is not in any way a form of disrespect but rather for the purposes of these proceedings, they were the husband and the wife.

7. The husband is a 43-year-old truck driver, the wife a 43-year-old sales agent.  They were married in 1992, separated in May of 2006, and the only child of their relationship is the subject child, who was born in August 1997.  The child is therefore 11.  The child lives with the wife.

8. By consent of the parties, final orders were made on 5 March 2007.  There are three significant orders made on that day to which I intend to refer.  The first is the parties agreed to equal shared parental responsibility, including a specific provision that the question of changes to the child's living arrangements that made it significantly more difficult for the child to spend time with a parent was to be deemed a shared parental responsibility.  The second order was that the child live with the wife and the third was that the child was to spend time with his father on alternate weekends from 7.30 pm on the Friday until 7.30 pm on the Sunday, together with a variety of holiday times.

9. On 25 July 2008 a family dispute resolution practitioner gave a section 60I certificate, saying that neither party had attended because he considered it would not be appropriate.  Having regard to the quite precise order made in March of 2007 for equal shared parental responsibility, that statement was a little hard to understand.  The child is clearly the child of these parties but they do not appear to have sat down in any meaningful way to try and sort this problem out.  They certainly have today and have not resolved it.

10. The issue in this case is about the child having to travel, but more importantly, who is to share in that travel.  The parties agree that the commencement of the Friday night weekends will be at the Spencer Street railway station.  I must say I have some concerns about that and I have expressed them, having regard to personal knowledge of that location on a Friday night.  I will not make any order other than the one that the parties seek in respect of the Friday night but it seems a lot more logical that the handover point should be somewhere north of Melbourne, such as the Carlton football ground where both parties would be coming in if they were driving off freeways.  In any event, that might be something for the parties to contemplate in the future.

11. As such, there is really no dispute about the Friday, it is about Sunday.  The wife wants the husband to meet at a geographic location about halfway between where she lives in central Victoria and where he lives near Warragul.  The husband wants a regime under which, on one of the two weekends, the handover point is the Spencer Street railway station, and again I make the same observations I made a few moments ago but perhaps it is less of a problem on a weekend night than it is on a Friday night.  The second suggestion is that he have the handover point at Berwick which is obviously much closer to Warragul than it is to central Victoria on the second of the two weekends.

12. When I think about the two proposals of the parties, it seems that the wife is doing the bulk of the overall travelling.  As I pointed out to the parties, I would hear their submissions but I have to determine the matter on the basis of the evidence presented. Each party provided me with two affidavits.  The husband's affidavit which started the proceedings said that he and the wife had been sharing the travelling subsequent to separation, notwithstanding they were 50 kilometres apart.  It transpires that in fact the parties were a lot closer than that initially but the husband moved, and the wife continued to equally share the travel.

13. It seems that in 2008 the wife moved to central Victoria which is a round trip of about 260 kilometres each way. In a letter written on 25 August 2008, the husband's solicitor wrote directly to the wife saying that it was reasonable that she should attend to all of the travelling.  He then made the observation that the wife had a good motor car.

14. For her part, the wife conceded that the husband had collected the child at the commencement of the time and she had collected him at the conclusion of the time.  She pointed out the matter that I mentioned a moment ago about his move from south eastern suburbs to the Warragul area, but she said she continued to do the travel.  She said that in late May or early June of 2008, she informed him that she was moving to central Victoria but she said - and this is obviously unchallenged - that he knew she was considering that move since about September of 2007 and never had objected.  She said in turn that whilst she owned the motor car, the husband was only a year out in the model, but he had access to two motor cars.

15. The husband filed a second affidavit on 18 December 2008 in which he made two significant observations.  The first is that after work on a Friday, he would be expected to travel towards central Victoria and to use his words "it would be likely to be beyond me".  He then attached to the affidavit a report from a doctor which is dated 29 May 2008.  The purpose for obtaining that report is not clear but as I said, it was obtained in May.  The report becomes significant because the husband relies upon it as one of the matters as to why I ought not adopt the proposal put by the wife.

16. Dr A said in her report that the husband had, over the last several years, ongoing low back problems, including sciatica.  She said this had at times been aggravated by long periods of time driving, long hours at work and heavy lifting.  She said in an effort to control his symptoms, he had taken a job that had shorter hours, allowing him access to regular back treatment and that he had been a lot better since he had been doing less prolonged sitting and heavy lifting.

17. The submissions put on behalf of the husband revolve around that report, indicating that long periods of time driving will have a significant impact on his health.  The second issue put by the husband is that he has remarried and his wife has a 14-year-old child and having to change what is currently occurring in relation to his time with the child will have an impact on his family life.

18. The submissions on behalf of the wife are that the doctor's certificate in relation to the back problem is not particularly helpful and the husband had changed jobs to alleviate some of his problems.  The second submission put on behalf of the wife is that in terms of child support, although it is not in the evidence, it is a set sum each month and he asks me to draw an inference that there is a significant burden on the wife in terms of the financial obligations for caring for the child.  That issue is disputed to some extent because the husband points to the fact that that is how he was assessed and in the circumstances, I am unable to make any finding about any of that.

19. The dilemma with which I have been grappling is that either way, this boy is going to be travelling the same amount of time, perhaps in bursts, perhaps in a lump period of time, but one way or the other, he will have to do the travelling.  The question is how that is to be broken up and who is to take what responsibilities.  I have raised with the parties whether or not there ought to be a reconsideration of the alternate weekends and both parties have indicated to me that they desire to retain that particular order.  Under those circumstances, the only conclusion I can draw is that they are both content for the child to do the amount of travelling; the problem is that they do not particularly like the proposal of the other.

20. Section 60CA of the Family Law Act says that in any parenting decision that I have to make, I must regard the best interests of the child as paramount. Section 60CC says me that when I am contemplating what is in the best interests of a child, I must take into account the matters that are set out in subsections (2) and (3) and later subsections (4) and (4)(a).

21. Of Subsection (2), which is broken up into two parts, there is really only one issue in this case which has any significance and that is whether or not the orders I propose to make have any impact on the meaningful relationship between the husband and the child.  One of the points made by the husband is that if he has to drive with the child, apart from reducing the period of time that he would be spending in activities in the Warragul area, he will not have the same sort of relationship with the child whilst the child is in the car.  One of the solutions proffered by the husband was that he could perhaps travel by train and they would be able to have a different relationship and hence the changeover at Spencer Street railway station.

22. Whilst that is a consideration, what I am obliged to look at is what benefit the child obtains from a meaningful relationship with both parents.  I do not think that means necessarily the finite details of what actually happens between parent and child.  It is important that I contemplate the continuation of the sort of relationship that has been occurring and see whether it will change. Kay J in Godfrey & Sanders [2007] FamCA102 said what the legislation requires aspires to promote is a meaningful relationship not an optimal relationship.  Under those circumstances, I do not think that the question of the travel has any impact on the meaningful relationship that I have to contemplate.

23. The additional considerations under subsection (3) are plentiful.  The first is the views expressed by a child.  I do not have any evidence here about what view the child takes about the mode and break-up of the travel.  I am obliged to look at the nature of the relationship of the child with each of the parents, together with the attitude of the parents and their responsibilities as demonstrated by each of them.  In each case, both want the other to have the particular time with the child.  The wife is prepared to travel down to ensure that the relationship continues.  The husband obviously conceded that she could remain living in central Victoria.  Both parents therefore are to some extent fulfilling their obligations that they agreed to under the order for equal shared parental responsibility. 

24. I am also obliged to take into account the likely effect of any changes in the child's circumstances, including the likely effect upon him of separation from either of his parents.  That does not seem to be a problem here because of the fact that the weekend periods of time will still continue.

25. I am obliged to take into account 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.  That particular provision can be broken up into two parts.  The second part is whether the difficulty of the distance will substantially affect the child's right to maintain personal relationships with the husband.  Having regard to the fact that I believe that a child sitting in a car with a driver can still have a meaningful conversation and participate in information exchange, it seems to me that that particular problem does not arise.

26. The next part of subsection (3)(e) relates to the practical difficulty of the child spending time and communicating with the parent.  It seems to me, as I pointed out, this child is going to be travelling with one or the other and the parents have decided they do not want to alter the alternate weekends.  As such, the problem really is one of the parents' difficulties rather than that of the child.

27. The other matters in subsections (3) and (4) really do not apply in this case and I do not propose to deal with them at all.

28. As I said, the best interests principles here must take into account how the child will travel for long periods, whichever way he goes.  It may be that he will ultimately vote with his own feet.  It seems to me that this is a parental responsibility issue and the parties have to work out a way when they have trialled whatever orders I make to see what impact this has on their son.  If they cannot work it out, then ultimately he will be the person who will suffer.

29. The judgment that I have to make here therefore is highly subjective.  The evidence in this case points to two issues which assist me to make that subjective judgment.  The first is the one I have already mentioned about the wife doing more of the travelling now, and the second is that the wife has the greater burden on a day-to-day basis of caring for and providing the financial support for the child.  In those circumstances, I see no reason why the husband cannot carry the burden of travelling to the C Service Station as the halfway point and I propose to make orders in those terms.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 January 2009