Brant & Brant
[2021] FamCA 91
•23 February 2021
FAMILY COURT OF AUSTRALIA
Brant & Brant [2021] FamCA 91
File number(s): SYC 557 of 2021 Judgment of: ALTOBELLI J Date of judgment: 23 February 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting arrangements – Presumption of equal shared parental responsibility – Where children have experienced recent drastic change to their living circumstances – Where the mother has unilaterally made decision to relocate with the children – Where the children spent time with the father almost daily post-separation – Where the mother proposes the children spend significantly less time with the father – Where father offers to alleviate practical difficulties and expenses associated with his proposal – Order made for mother and children to return to the area from which they have left with option to occupy former matrimonial home – Order made for children to spend equal time with parents. Legislation: Part VII of the Family Law Act 1975 (Cth)Part VII, ss 60CC, 61DA, 65DAA. Cases cited: Goode & Goode [2006] FamCA 1346;
Morgan & Miles [2007] FamCA 1230.
Number of paragraphs: 32 Date of last submission/s: 23 February 2021 Date of hearing: 23 February 2021 Place: Sydney via web conference Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Southern Waters Legal Counsel for the Respondent: Ms Sproston Solicitor for the Respondent: MCW Lawyers ORDERS
SYC 557 of 2021 BETWEEN: MR BRANT
ApplicantAND: MS BRANT
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
23 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Leave be granted to the Applicant father to file this Initiating Application in the absence of a s 60I certificate.
2.Pending further order or written agreement between the parties, the mother be restrained by way of injunction from unilaterally:
(a)Enrolling the child, X born … 2015, in any school other than B School in Suburb C;
(b)Enrolling the child, Y born … 2017, in any pre-school; and
(c)Relocating the residence of the children outside a 20-kilometre radius of Suburb C in D region.
3.The mother is to do all acts and things and sign all documents so as to withdraw the enrolment of the children in any school or pre-school that she may have enrolled them in without the father’s consent.
4.Pending further order or written agreement between the parties, the parties are to do all acts and things to facilitate X’s attendance at B School from 1 March 2021 or as soon as possible thereafter.
5.The children shall live with both parents in an equal shared care arrangement commencing from 1 March 2021.
6.During the NSW Public School Terms, the children will live with the father, unless otherwise agreed, as follows:
(a)From 1 March 2021, in Week 1 from the conclusion of school or 3pm on Thursday until the commencement of school or 9am Friday; and
(b)In Week 2, from the conclusion of school or 3pm on Monday until 3pm or the conclusion of school on Thursday (at which time the mother will collect the children) and from the conclusion of school or 3pm on Friday until the commencement of school or 9am on Monday (being the Monday starting week 1); and
(c)At any other time as agreed between the parties in writing.
7.The children live with the mother during the NSW Public School Terms at all times that the children are not living with the father pursuant to these orders.
8.The children shall also spend the following additional time with the mother:
(a)For one half of the school holiday periods at times to be agreed between the parties in writing at least one month in advance in writing and failing agreement for the first half in even numbered years and the second half in odd numbered years;
(b)At Easter from 9am Good Friday until 5pm Easter Saturday commencing in 2021 and continuing in each odd numbered year thereafter;
(c)At Easter from 5pm Easter Saturday until 9am Easter Monday commencing in 2022 and continuing in even numbered years thereafter;
(d)At Christmas from 9am Christmas Eve until 2pm Christmas Day commencing in 2021 and continuing in each odd numbered year thereafter.
(e)At Christmas from 2pm Christmas Day until 5pm Boxing Day commencing in 2022 and continuing in each even numbered year thereafter;
(f)On Mother’s Day from 5:30pm on the Saturday immediately before Mother’s Day until 5:30pm on Mother’s Day;
(g)If the children are not already spending time with the mother on the children’s birthdays then at times to be agreed between the parties and failing agreement from after school (or 3pm if it is a non-school day) until 7pm if the child’s birthday falls on a weekday and from 9am to 12 noon if the child’s birthday falls on a weekend;
(h)On the mother’s birthday from after school (or 3pm if it is a non-school day) until 7pm if the birthday falls on a weekday and from 9am to 5pm if the birthday falls on a weekend; and
(i)At any other times as agreed between the parties.
9.Notwithstanding orders 5-8 (inclusive) above, the children shall spend time with the father on the following occasions and for the purposes of the following orders the mother’s time shall be suspended to allow this time to occur:
(a)For one half of the school holiday periods at times to be agreed one month in advance between the parties in writing and failing agreement for the first half in odd numbered years and the second half in even numbered years;
(b)At Easter from 9am Good Friday until 5pm Easter Saturday commencing in 2022 and continuing in each even numbered year thereafter;
(c)At Easter from 5pm Easter Saturday until 9am Easter Monday commencing in 2021 and continuing in each odd numbered year thereafter;
(d)At Christmas from 9am Christmas Eve until 2pm Christmas Day commencing in 2022 and continuing in each even numbered year thereafter.
(e)At Christmas from 2pm Christmas Day until 5pm Boxing Day commencing in 2021 and continuing in each odd numbered year thereafter;
(f)On Father’s Day from 5:30pm on the Saturday immediately before Father’s Day until 5:30pm on Mother’s Day;
(g)If the children are not already spending time with the father on the children’s birthdays then at times to be agreed between the parties and failing agreement from after school (or 3pm if it is a non-school day) until 7pm if the child’s birthday falls on a weekday and from 9am to 12 noon if the child’s birthday falls on a weekend;
(h)On the father’s birthday from after school (or 3pm if it is a non-school day) until 7pm if the birthday falls on a weekday and from 9am to 5pm if the birthday falls on a weekend; and
(i)At any other times as agreed between the parties.
10.For the purposes of changeover:
(a)The parties will each collect and return the children to and from their school and/or before and after school care, where applicable; and
(b)When the children’s time with each parent does not commence or conclude at school, the parent whose time is commencing with the children will collect the children from the other party’s residence and the parent whose time is concluding will ensure that the children are available for collection at their residence, unless otherwise agreed between the parties.
11.The parties shall be at liberty to have telephone/Facetime calls with the children each day that the children are not with them, for up to half an hour at times to be agreed, and failing agreement, between 6pm and 6:30pm.
12.For the purposes of order 11, the parent in whose care the children are not shall instigate the call to the children by telephoning the other parent’s telephone until such time as the child is of an age where both parties agree that the children may own a mobile phone and at that stage all telephone calls are to be made directly to the children’s mobile phone.
13.Neither party will unreasonably prevent the children from having electronic communication with the other parent and each parent will facilitate the children’s communication with the other parent at all times in accordance with these orders.
14.In the event either party is unable to spend time with the children due to work or personal commitments for in excess of 12 hours and do not have a family member to assist, he or she will provide reasonable notice in writing to the other party of their inability to spend such time with the children and will provide the other parent with the first option to care for the children in their absence.
15.The parties notify each other in the event of any illness or injury occurring to the either child (apart from the common cold) whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child at the requesting party’s expense.
16.Both parties are permitted to liaise directly with the children’s school and sporting bodies to obtain any necessary information about the children’s progress and both parties shall within seven (7) days from the date of these orders, authorise the school and sporting bodies in writing to facilitate this.
17.Both parties are permitted to attend any extra-curricular activities that the children may participate in from time to time.
18.Within seven (7) days from the date of these orders, both parties shall authorise the Principal of any school attended by the children to provide both parties with copies of the children’s school reports, newsletters, notices as they fall due and inform both parties of any school activities which parents are invited to attend and if there are any additional costs associated with this duplication then the parties shall bear those costs in equal shares.
19.Both parties will use their best endeavours to attend significant events for the children including sporting events, education events, cultural events and medical appointments.
20.Both parties will encourage, and not undermine the child’s relationship with the other party.
21.Each party shall keep the other informed of their current residential address, telephone number and email address and in the event any such details change, then the party changing their details will inform the other within no less than seven (7) days of such change.
22.The matter be transferred back to the Federal Circuit Court for Mention before His Honour Judge Morley on 11 June 2021 at 9:30am.
IT IS NOTED THAT
A.The father agrees to give the mother exclusive occupation of the former matrimonial home should she wish to return to live there with the children and to this end, agrees to take the home off the market.
B.The father will continue to pay a half share of the mortgage in relation to the former matrimonial home, such amounts to be characterised at final hearing.
C.The father will pay child support as assessed without seeking any adjustment in relation to his payment of a half share of the mortgage in relation to the former matrimonial home.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brant & Brant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
This case relates to two children: X, who is five, and Y, who is three. The matter comes before me on a duty basis, in fact having been transferred for this purpose from the Federal Circuit Court of Australia and on the basis that the matter would, unless something exceptional arose, be transferred back to that Court after I had dealt with it. The matter comes on with relatively short notice and with a high degree of urgency. The living arrangements for the children changed substantially about three weeks ago and the question for the Court is to determine what their future living arrangements will be.
The father of the children is the Applicant and their mother is the Respondent. Both work in the public sector in New South Wales. The orders proposed by the father are set out in a minute which is contained in his Case Outline document prepared for the purpose of the hearing. The same Case Outline contains brief submissions and matters of background, and identifies the affidavits that the father relies on in this case. Also in the Case Outline is a useful chronology that presents certain matters, at least from the father’s perspective. In effect, the father proposes that the children return to live in the area from which they have recently moved— indeed, to the area that they have known for all of their lives. His proposal is that they return to the home which they have known as theirs for most of their lives.
The mother’s proposal is set out in the interim orders contained in her Response to an Application for Final Orders filed on 19 February 2021. The mother’s Case Outline document, dated 23 February 2021, identifies the documents on which she relies and contains some very helpful short submissions and another chronology that sets out her perspective on the recent events.
Both parents were very capably assisted by experienced family lawyers and experienced family law counsel. This is a finely-based decision. It is a decision that, unfortunately, needs to be made in the absence of complete evidence, on the basis of some conflict in the evidence, and in a highly time-constrained context. The case is rendered more difficult because X and Y, unlike so many children whose cases are heard in this Court, have been blessed with two great parents who are very much focused on their children, and who in fact have very little to say about the other that is in negative terms.
X and Y are very lucky to have the parents and, it would seem, the extended family that they have. Courts, however, have to step in when parents cannot make important decisions about children’s lives and that is what the Court has had to do in this case. The Court does not do that blindly. It does that by having regard to the law and having regard to the material that has been placed before the Court by the parties through their solicitors and counsel and, of course, the Court has done that. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). There are a number of relevant provisions, but for present purposes s 60CC of the Act sets out how a court determines what is in a child’s best interests:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(g)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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a 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.
In s 65DAA, the Act specifies that the Court must consider a child spending equal time or substantial and significant time in certain circumstances with a parent:
Equal time
(1)Subject to subsection (6), 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.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), 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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Section 61DA of the Act deals with the presumption of equal shared parental responsibility when making parenting orders:
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 contains a number of relevant paragraphs that inform decision making in a case like this.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, there is a passage from Boland J’s decision in Morgan & Miles [2007] FamCA 1230 where her Honour made some observations that are relevant to this case:
55. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
…
87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
I accept that Morgan & Miles was an appeal from a decision of a Federal Magistrate in relation to an interim relocation case. No one sought to characterise the present case as an interim relocation and that is quite properly the case. This is a case that is decided by reference to the best interests of the children, but her Honour’s discussion in Morgan & Miles resonates just as equally in a case like this — that is, that Courts should be very cautious when asked to make decisions about children, even on an interim basis, on the basis of circumstances that have been created recently and in circumstances of haste.
Perhaps the best way to deal with this case is to analyse the material before the Court by reference to some of those legislative provisions, starting with s 61DA of the Act, which deals with the presumption of equal shared parental responsibility. It was not suggested in either party’s case that the presumption would be displaced, whether or not the parents have sought the order. Section 61DA creates the presumption and there is nothing in the evidence that would suggest the presumption should not apply.
Section 65DAA requires me to consider a child spending equal time or substantial and significant time with each parent. The father proposes equal time, but for practical purposes on the basis of the children returning to the area from which they have come as well as the home which they have left. The mother proposes, in effect, substantial and significant time, but on the basis of the children living with her and the maternal grandmother in Hornsby, the place to which she has moved. The Court must consider equal time and substantial and significant time provided it is in the best interests of the children and it is reasonably practicable. By requiring the Court to make a decision in the best interests of the children, I must analyse the evidence by reference to the primary and additional considerations set out in s 60CC.
The starting point, set out in s 60CC(2)(a), is the benefit to the children of having a meaningful relationship with both of their parents. One thing that is clear in this case from the evidence of both parents is that these children do have a meaningful relationship with each parent and, indeed, it is an understandable but probably quite sterile argument to say that one is the primary carer and one is not. From the children’s perspective I doubt very much if they would make that distinction. The evidence is replete with examples of everything that both parents have done to make the lives of these children meaningful and to create a meaningful relationship with them.
The father contends, in effect, that on the mother’s proposal his meaningful relationship might be diminished. Acceptance of that proposition depends upon accepting that less time necessarily results in less quality. The problem with this case is that there is no expert evidence. There is no family report that would normally be available in a case like this at a final hearing and, therefore, the Court is effectively left in the dark about the impact of each parent’s proposal and the recent changes experienced by the children on the children’s relationships with each parent. In the absence of that expert evidence, I cannot rule out the validity of the father’s concern about the potential impact on his meaningful relationship with the children if the mother’s proposal were accepted.
A similar submission was made on behalf of the mother that if the father’s proposal were accepted it might diminish her meaningful relationship with the children. I find that a little harder to accept. The children have been involved closely with both parents. On the father’s proposal the children would still be with their mother for half the time and, indeed, would not be away from their mother for more than a few days at most, so it is hard to see how there is even the risk of the mother’s meaningful relationship with the children being diminished on the father’s proposal. Conversely, I have some concerns about the risk of the diminishment of the father’s meaningful relationship with the children on the mother’s proposal.
I must take into account the need to protect the children from any form of harm and, as I foreshadowed earlier in these reasons, there is no evidence to suggest that any such risk exists.
I must take into account the views of the children. These children are young. Insofar as the parents have set out in their affidavits statements of the children that purport to set out their views, I place no weight on those statements.
I am required to consider the nature of the relationship of the children, not just with each of the parents, but with other persons, including grandparents. In this case the evidence from both parents suggests that the children not only have a good relationship with the parents, but the grandparents as well. One concern about the mother’s proposal is that it takes them away from the paternal grandparents, though perhaps not in any significant way. It provides them with greater opportunities to spend time with the maternal grandmother. In any event, insofar as it relates to grandparents, those matters are not determinative. In effect, the nature of the relationship which the father has with the children is such that historically they have spent a very significant amount of time with him. Indeed, during submissions I asked counsel for the father about the precise meaning of the Annexure A to his Affidavit filed on 29 January 2021, in which he sets out the time spent with the children in December and January. I was informed and I accept that the times set out therein were based on the father’s usual work roster. What this indicates is that, apart from four days in December when the father was away working in Suburb E, he had contact with the children almost every other day of December and a similar pattern appears to apply in January.
In many respects this is not surprising because even the mother’s evidence in this case is that the children spent day times with their dad and night times with their mum. In any event, this provides an insight into the role of the father in the children’s lives and, I infer, the nature of their relationship with him. I thought it interesting that there was no submission made on the mother’s part seeking to cast doubt about the father’s evidence in Annexure A. This evidence creates a strong impression of a very close relationship between the children and their father, one which the mother on her proposal would seek to dramatically change. It would go from the father spending time with the children almost every day of the week to a situation where he would be seeing them, in accordance with the mother’s proposal, at most four nights a fortnight.
Section 60CC(3)(c) pertains to the extent to which the children’s parents have taken or failed to take the opportunity to participate in making decisions or to spend time and communicate with the children. In this case it is hard to avoid the inference, based not just on the father’s evidence, but on the mother’s evidence as well, that she acted unilaterally in moving the children from the home that they have lived in and changing their school and preschool, thus denying the father to participate in a decision about major long-term issues.
Section 60CC(3)(ca) deals with maintenance. This is a very recent separation. There is no evidence of a child support obligation, but counsel for the father invited the Court to add a notation that the father will pay child support as assessed and not seek to adjust the child support. The father also commits through a notation that he will pay half the mortgage on the family home on the basis that the mother and children will return to live there on an exclusive occupancy basis and, in addition, that he will, in effect, forthwith take the property off the market for sale and cancel the auction. In any event, there appears to be no concerns about his commitment to maintain the children.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents. This is possibly the most important consideration in this case. It is interesting to reflect on whether the additional considerations under s 60CC(3) are child-centric or parent-centric. Section 60CC(3)(d) is certainly child-centric and one cannot help but ask the question rhetorically, “How would X and Y be experiencing the changes that have been brought about in their lives unilaterally by their mother recently?”. Again the evidence is rather clear and somewhat graphic in this regard. The children have gone from seeing their father almost every day in December and January to seeing their father occasionally and, on the mother’s proposal, will see their father no more than four times each fortnight.
The children have had to change where they live and in Y’s case, where she goes to preschool. For X, who started school this year and who clearly was aware of plans to attend a nominated school in the area close to where they lived, this is a significant change. Of course, the change is mitigated by the fact that their mother is with them, but there are many, many other changes that have been brought about on them as a result of a decision unilaterally made by the mother and clearly against the father’s wishes. The dilemma that the Court faces is that if the Court makes the orders proposed by the father it will cause further change to the children’s lives. X, who has been going to school almost three weeks now, will suddenly and on a best case scenario, cease going to one school on Friday and start at another school on Monday. She will have to make new friends and meet a new teacher or teachers. It is a significant change, but from this Court’s perspective it is mitigated by the fact that she will be going back to her home if her mother takes up the option that is offered to her by the father— her own home and familiar circumstances, possibly familiar friends. So while in some respects change is inevitable for these girls, both in the short-term and the long-term, the mother’s decision has brought about a very significant, drastic change. Both parents report to the children being upset. A necessary inference on the facts and based on long experience in this jurisdiction is that at least some part of the upset suffered by the children must be referrable to the sudden changes they have experienced.
On the mother’s proposal this significant change would be perpetuated in circumstances where, because of the absence of expert evidence, it is simply not possible to have an expert insight into the nature of the relationship that the children have with their father and the impact on them of the change.
Section 60CC(3)(e) requires the Court to look at issues of practical difficulty and expense. Much was said about this, and quite correctly so. On the mother’s proposal, there are significant issues of practicality in terms of the father spending time with the children, but particularly in terms of the children themselves having to experience travel. I expressed concern about the midweek contact proposed by the mother.
On the father’s proposal there are issues of practical difficulty and expense, particularly expense for the mother. Ms Sproston’s submissions were clear and cogent in this regard, but the father makes an offer that is not often encountered and that is that the mother and children can return to the family home, that they can have exclusive occupancy, that there will be no rush to sell the property, that he will pay half the mortgage, and that he will pay child support as assessed and not taking into account the fact that he is contributing towards the costs of the children’s accommodation. The mother’s concerns are legitimate, but are adequately responded to by the father’s offer. So, in fact, there are more issues of practical difficulty and expense on the mother’s proposal than there are on the father’s proposal.
There are no issues about parental capacity that I am required to take into account. In relation to s 60CC(3)(g), the maturity, sex, lifestyle and background of the children, both parents are public servants. The father works shift work. This is an arrangement that they managed to live with, it would seem successfully, in terms of the relationships with the children during the marriage. Now, after separation, there may be more challenges but from the father’s perspective, living with the paternal grandparents he will have their assistance. That provides reassurance there. With the mother it may well be more problematic. It seems as if the offer by the paternal grandparents to remain involved in the children’s lives is still on foot. She has concerns about this. It would seem that the mother has the capacity to navigate these issues around her work life, as she has done before.
The other relevant consideration in this case is the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. Again, these are, compared to the vast majority of parents who come before this Court, really good child-focused parents. It is unfortunate that litigation focuses on little things in order to make distinctions, especially in a finely-balanced case. In this case one can foresee that at a final hearing much will be made of the unilateral nature of the mother’s decision to relocate the children and how this might adversely reflect her attitudes towards the responsibilities of parenthood. One hopes that it never gets to that in terms of the final hearing. Nonetheless, it is a consideration that the Court is required to take into account and it does so.
There is no family violence in this case. There is the consideration of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. This is an interim hearing. The litigation will continue. Hopefully, the matter will settle, but the prospect of further proceedings cannot be ruled out. On the mother’s proposal I have wondered openly in front of the parties about the sustainability of the mother’s proposal for midweek contact and one wonders whether there would have been an Application to vary or possibly even a Contravention Application, depending on the future. On that basis, unfortunately, further proceedings cannot be ruled out.
What the Court must do is have regard to those primary and additional considerations and make a decision that it considers to be in the best interests of the children. This is a temporary decision. The parents can change it by agreement at any time. The parents will probably have their minds refocused on what is best for the children once the family report is obtained. If the parents have the capacity to fund that themselves I encourage them to do that so that they can get an earlier assessment rather than one in the normal course.
It is a temporary decision, but it is a temporary decision that needs to be made and needs to be made based on the best interests of the children. In this case I propose to make orders that are consistent with the father’s proposal, with some changes.
I transfer this matter back to the Federal Circuit Court of Australia before Morley J on 11 June 2021 at 9.30am. I want the parents to do everything they possibly can to get X back in school by Monday and, if possible, Y in preschool by then as well and with the equal time arrangement to commence from Monday.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 23 February 2021
0
2
1