Buckner and Deal
[2019] FCCA 1353
•15 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUCKNER & DEAL | [2019] FCCA 1353 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – Mother has unilaterally relocated – Father seeks child’s return – Mother will also return in that event – Section 60CC factors – Mother always primary carer of child – not “reasonably practicable” for Mother to return with child – no order for equal shared parenting – responsibility – “reasonable practicability” considered in the context of s.60CC(3m) – best interests – child to remain with Mother in new location and spend regular time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(3), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(ca), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(1), 60CC(3)(m), 61DA, 61DA(3), 65DAA, 65DAA(1), 65DAA(2) and 65DAA(5) |
| Cases cited: Goode & Goode (2006) FLC 93-286 Morgan & Miles (2007) FLC 93-343 C & S [1998] FamCA 66 |
| Applicant: | MR BUCKNER |
| Respondent: | MS DEAL |
| File Number: | NCC 322 of 2019 |
| Judgment of: | Judge Betts |
| Hearing date: | 1 March 2019 |
| Date of Last Submission: | 1 March 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 15 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kekeff |
| Solicitors for the Applicant: | Region E Family Law |
| Counsel for the Respondent: | Ms Murray |
| Solicitors for the Respondent: | Bourne Lawyers |
ORDERS
The child, [X] born … 2012 (“the child”) live with the Mother in Town A.
The child spend time with the Father as agreed between the parties but failing agreement as follows:
(a)During school term, each alternate weekend from 7.30pm Friday night until 3.00pm Sunday afternoon with handovers to occur at McDonalds Town B;
(b)At any other reasonable time, during the school term if the Father is in the Town A region;
(c)From the end of term 1 school holiday period, from 7.30pm the Friday before commencement of the school holidays until 3.00pm Sunday being the last day of school holidays with handovers to occur at McDonalds Town B;
(d)From the end of term 2 and term 3 school holiday period, from 7.30pm the Friday before the commencement of school holidays until 3.00pm of the second Tuesday with handovers to occur at McDonalds Town B;
(e)For three (3) weeks during the Christmas school holiday period as agreed between the parties, or failing agreement the last three (3) weeks of the Christmas school holiday period commencing and concluding at 3.00pm on Sunday, with handovers to occur at McDonalds Town B.
The parents may communicate by telephone with the child:
(a)In the Father’s case
(i)each Monday, Wednesday and Friday afternoons between 5.00pm and 5.30pm, with the Father to telephone the child during these times.
(ii)on the child’s birthday, on the Father’s birthday, and on the birthdays of [C] (…) and [D] (…).
(b)When the child is spending time with the Father during the Christmas and school holiday periods, the Mother may have telephone communication with the child each Monday, Wednesday and Friday afternoons between 5.00pm and 5.30pm, with the Mother to telephone the child during these times.
The parties shall communicate by email for non-urgent matters and by text message for urgent matters relating to the child and shall keep their communication civil and child-focused.
Each parent shall keep the other advised at all times of their residential address, email address and telephone numbers and shall advise the other parent in writing within 24 hours of any change in their residential address, email or telephone numbers.
Pursuant to section 68B of the Family Law Act 1975, each of the parties is restrained from:
(a)Denigrating the other party, or members of their family, or discussing these proceedings, in the presence or hearing of the child;
(b)Permitting the children to remain in the presence or hearing of any other person who is denigrating the other party or members of their family;
(c)Being under the influence of alcohol while the child is in that parent’s care.
Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health or education professional and any school attended by the child to provide to each parent (at that parent’s expense) copies of reports and any other information or documentation relevant to the child’s health and education.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the child.
Each parent shall enrol in and complete a “Parenting After Separation” course at the earliest available date and provide evidence of enrolment to the other parent’s Solicitor within twenty-one (21) days of the date of these Orders and evidence of completion of the course within seven (7) days of completion.
Each parent shall be at liberty to attend all events and activities at the child’s school to which parents are invited to attend.
Each parent shall be at liberty to attend all sporting, community and cultural activities in which the child is involved.
Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)To consider the factors in S60CC & S65DAA of the Family Law Act1975.
(b)To assess the parents (and other significant adults).
(c)To assess the parents interactions (and those of other significant adults).
(d)To assess the children’s developmental and emotional state.
(e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.
(f)To assess the proposed and actual home environments.
(g)To assess the proposals of each party as to the children’s future.
(h)To consider any other matter which the family consultant considers relevant to the Court’s determination.
The Court requests the said report be released by 25 October 2019.
Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.
If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The matter is adjourned to 9.30am on 21 November 2019 for Hearing Directions.
The costs of both parties be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Buckner & Deal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 322 of 2019
| MR BUCKNER |
Applicant
And
| MS DEAL |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them more readable.
Background:
This is a matter which went to interim hearing last month. I am sorry it has taken me a little longer to deliver judgment than I would have liked.
These are interim parenting proceedings conducted pursuant to Part VII of the Family Law Act 1975 (“the Act”). The proceedings relate to the parenting of a young girl, [X], born … 2012. [X] is presently six (6) years and four (4) months old.
The applicant in the proceedings is [X]’s father, Mr Buckner (“the father”). The respondent in the proceedings is [X]’s mother Ms Deal (“the mother”).
The parents commenced a relationship in … 2006 in the NSW Region E region. The date of separation is somewhat unclear. On the father’s case, the parties separated in late 2013 when [X] was a baby but they continued living under the same roof until May 2018 when the father moved out.
The father has since re-partnered with Ms F, who was a long-term friend of the couple but whose relationship with the mother has now significantly soured.
On the mother’s case, the parties in fact remained in a relationship until around February 2018. The mother essentially accuses the father of having an affair with Ms F and says that this is why their relationship ultimately broke down.
In any event, it is common ground that the father moved out of the home around May of 2018 following which [X] has been living with the mother and spending alternate weekends with the father by agreement up until January of 2019.
In January of 2019, everything changed. The father was pressing for the sale of the former matrimonial home in which the mother and [X] were living. The mother wanted to remain in the home for a little longer. Ultimately what happened was that the parties were at something of an impasse and the mother then relocated unilaterally to Town A with [X].
I am therefore asked on an interim basis to make orders in relation to where [X] should live and with whom. The father’s case is that [X] should be living with him in the Region E area where he lives with his partner, Ms F, and her two (2) children – [D] who is eight (8) and [C] who is seven (7). Both children are well known to [X]. [D] has significant health difficulties.
The mother’s case is that she should be entitled to continue living in the Town A region with [X] and that the father should spend weekend and holiday time with [X], with changeovers to occur at Town B.
The interim hearing & relevant law:
Before proceeding further, I would note that this matter is being conducted by way of interim hearing only. The limits of interim hearings are well known. The court can not make findings in relation to factual matters that are in dispute between the parents and the court therefore needs to tread carefully and to proceed so far as possible by reference to what are the agreed facts.
The court is obliged to regard the best interests of [X] as the paramount consideration, pursuant to section 60CA of the Act. The relevant statutory considerations which go to the question of what order is in a child’s best interests are set out in section 60CC.
Issues of parental responsibility are relevant and the Court must therefore consider section 61DA, as well as section 65DAA in light of the decision of the Full Court of the Family Court in Goode & Goode (2006) FLC 93-286 which set out the relevant statutory pathway and explained the interplay between the making of an order for equal parental responsibility (s.61DA) and consideration of an “equal time” or “substantial and significant time” order (s.65DAA).
Interim hearings are by no means a perfect process. They are an abridged hearing, with distinct limitations. It is perhaps for this reason that courts are particular reluctant as a matter of practice to sanction what might be called unilateral relocations. The Parliament well knows that this court regularly grapples with relocation cases and there are no special rules that have been set out in the Act in relation to determining such cases. The court’s “best interests” discretion applies, as it does in any other parenting case. However, so-called interim relocation cases often create real practical difficulties for the court in arriving at a best interests determination, given at times the potential tyranny of distance in a country as large as Australia.
In terms of the material that I have taken into consideration, I have had regard to the father’s Initiating Application, Notice of Risk, and Affidavit all filed 6 February 2019, the affidavit of his partner Ms F filed 8 February 2019.
I should add here that the father brought his application on an urgent basis. He did all that he could to get before the court as quickly as possible and, in fact, time was abridged to enable that to occur.
So quickly had the matter been brought on that, in fact, when it first came before me on 12 February and Ms Kekeff (solicitor) appeared as agent for the mother, she advised that the mother had only just been served on 8 February. In pointing this out, I mean no disrespect or criticism of anybody. Indeed, it is much to the credit of the father’s legal representatives that they were able to move as quickly as they did but the practical reality was that when the matter first came on before me on 12 February the mother had not had an opportunity to put on any response material such was the speed with which the matter came before the court.
In those circumstances, I referred the parties to a s.11F Child Dispute Conference that day and I made orders in relation to the filing of the mother’s response material, and any material in reply by the father. The matter was adjourned to interim hearing on 1 March 2019 and in the interim, orders were made for the father to spend some time with [X], with hand-overs to occur at McDonald’s Town B.
A Child Dispute Conference Memorandum was prepared on 12 February by Family Consultant Ms G and I have had regard to that document.
The mother subsequently filed her Response on 25 February 2019, together with an Affidavit and a Notice of Risk. She also filed an Affidavit by her brother Mr H, an affidavit by her sister-in-law Ms J, an affidavit from another sister-in-law Ms K and an affidavit by her former neighbour Ms L, all of which were filed on 25 February and I have considered all of this material.
The father filed further material in reply, specifically an Affidavit by himself filed on 28 February 2019 and a further affidavit of Ms F filed on 28 February 2019.
The matter came before me for interim hearing on 1 March 2019 at which time the father was represented by Mr Bithrey of counsel and the mother was represented by Ms Flintoff of counsel. Both counsel took me to relevant submissions and both, in my view, vigorously prosecuted their case for their respective client. The court then reserved its decision having heard submissions and today I am delivering these reasons and orders.
At the interim hearing, the father’s counsel strongly submitted to me that the mother’s relocation was unilateral – and that the Court should not sanction it. He helpfully referred me to the decision of Boland J sitting as the Full Court in Morgan & Miles (2007) FLC 93-343 in which her Honour stated that [at an interim hearing] the circumstances of the child or children immediately prior to the unauthorised removal may well be likely to be extremely relevant - particularly absent issues such as abuse or violence.
Her Honour cited with approval an earlier decision of Warnick J in C & S [1998] FamCA 66 wherein his Honour said:
…[I]n my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
That said, each case must always turn on its own facts. It is not a situation that one size fits all. The court always exercises an individualised judicial discretion. I particularly refer to the recent Full Court decision in Pawley & Pawley [2017] FamCAFC 136 wherein Kent J, with whom Loughnan J agreed, said this:
…[I]t may be trite to say so but in parenting cases, including so-called relocation cases considered at an interim stage or, properly described, cases involving a proposal by a party for children to live in an area removed from an erstwhile living area, statements of general principle from the authorities do not apply in the abstract or have application independent of the facts of the particular case.
In this particular case, the mother’s counsel Ms Flintoff submits that it would not be “reasonably practicable” for the mother to return to live at the Region E area with the child. She also submits that the mother can continue to facilitate from Town A the same amount of time - or much the same amount of time - between the father and the child as was previously occurring when she and the child were living on the Region E.
Best interests considerations in section 60CC:
The primary considerations are set out in s.60CC(2).
The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J held that a “meaningful relationship” as referred to in the Act is a reference to a relationship which is of significance, of substance, of meaning to the child. It is not strictly quantitative, although quantity of time, obviously, has a bearing on the quality of the relationship in any particular case.
In the present case both parents concede by implication, if not expressly, that the child would benefit from having a meaningful relationship with both parents. I agree.
In terms of the other primary consideration in s.60CC(2)(b), the court has to have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case, although each party makes significant complaints about the other’s behaviour, this is not really a “risk” case in the true sense of the word.
The father accuses the mother of abusing alcohol during the relationship and particularly when the parties were living together under the one roof and then after the father moved out.
The father also produces evidence of the mother engaging in what could fairly be described as stinging denigration in relation to his re-partnering with Ms F. Some of the messages sent by the mother were really extremely offensive – to say the least. I do not propose to refer to them in any detail. But it sufficies to note that the mother has at different times labelled Ms F as a “half-caste whore”, and I note in this regard that Ms F is Aboriginal and proudly so. The mother has referred to Ms F as being a “home wrecker”, and she has been extremely critical of the father in relation to his actions in re-partnering with her.
The mother has behaved poorly in this respect, although she does make some concessions in her material to this effect.
Although the father makes complaints in his material about the mother behaving in a neglectful way in terms of living in a very untidy house, that evidence is hotly disputed – including by the mother’s former neighbour, who attended at the home around the time the mother moved out.
Notably, the father did not ever make a complaint to the Department of Families and Community Services in relation to the mother’s parenting of [X] after he moved out of the home. There has been no relevant police involvement either – in terms of apprehended domestic violence orders.
The father raises issues in relation to the mother’s mental health. In that regard it is clear enough on the mother’s own evidence - including material annexed to her affidavit – that she has been suffering from some anxiety since separation.
Further, I have before me as exhibit 3 some subpoenaed records from the mother’s general practitioner, consisting of a patient-health summary. In that document it is clear that the mother consulted a psychologist at Town M for help and support under a mental-healthcare plan, suffering from anxiety and acopia after a relationship breakdown. The mother complained of anxiety, although she said it was at that time under control. She complained of poor sleep, being exhausted and of smoking ten (10) cigarettes a day and drinking two (2) beers on three (3) nights a week. She complained that her extended family had just left and that the father was coming to sleep over at weekends, which she did not want and which she found stressful.
On the face of the father’s material there are some risk issues that arise in relation to the mother.
However the mother, living at Town A as she presently does, appears at least at this time and in that environment to be well supported by her family.
According to the Family Consultant in the Child Dispute Conference Memorandum: “The father openly acknowledged that the mother gained significant financial support and physical and social support from the maternal family at Town A”, this being a quote taken from page 1 of the Memorandum.
At page 3 the father reported that the maternal family were appropriate and protective and likely to intervene if there were any concerns in relation to the mother’s care of [X].
I do not see the case as being a “risk” case in that sense insofar as the mother is concerned, although the court has some concerns as to the state of the mother’s mental health and coping mechanisms, particularly at the Region E, which is where the mother says she would be relocating back to in the event that the court considered that the child should be living in the Region E in the interim, being the prior arrangement until the mother’s relocation.
In relation to risks concerning the father, the mother also makes accusations of him denigrating her and, generally, behaving in a somewhat overbearing fashion in relation to property matters most notably in relation to the impending sale of the house.
The mother has put evidence before me consisting of – for example as exhibit 2 – a text message from the father indicating she was being watched. She complains that on one occasion the father or someone on his behalf had gained access to the home while she was away and left a machete in the home. The father strenuously denies any involvement.
The mother accuses the father of alcohol abuse and also of neglecting the child’s health needs.
Again however, weighing up all the evidence as best I can this time, I do not see any serious basis to find that the father poses any real risk to [X]’s welfare.
Neither party seeks that the other party’s time with [X] in whatever form it may take should be supervised. And the court does not consider that risk issues loom particularly large in this case.
Turning then to section 60CC(3), I do not have any evidence as to [X]’s views. She is only very young and in any event her views would not necessarily be determinative. They are a matter for another day.
In terms of the relevant relationships as provided for in s.60CC(3)(b), the mother has always been the primary carer for [X], and this is a significant matter. [X] has a positive relationship with the mother’s extended family, who live at Town A. The father and [X] have a close and very significant relationship. [X] also has a relationship with Ms F’s children [D] and [C], whom she has known for their whole lives – and has attended playdates and birthday parties and the like with them ever since she was very little.
No doubt [X] also has a relationship with Ms F, who is in a sense acting in a stepmother-type role at this time, living as she does with the father.
In terms of s.60CC(3)(c), the mother may have been the primary carer for [X]. However, the father has always been actively involved in her care. He brought these proceedings as quickly as he possibly could, and I do not consider that he could be criticised for any delay that has arisen in getting to hearing. The delay that has arisen since the mother moved is in fact as much, if not more, the fault of the court in needing to take the time to properly consider the matter and to be able to give these Reasons.
In terms of s.60CC(3)(ca), the father was continuing for a time to meet the expenses for the former matrimonial home while the mother and the child were living there after he moved out. The house has since been sold, and if it has not already settled, it will be settling very shortly. The father has not recently been paying child support to the mother, but I do not see this as a significant issue today.
In terms of s.60CC(3)(d), the likely effect of a change in circumstances is a particularly significant matter, as was identified by Boland J in Morgan & Miles (supra).
[X] living in the Region E area –v- living in the Town A area is what the court has to consider.
The mother’s position is that she will not leave [X] on the Region E - if [X] has to return then so will she.
So the options available to the court are to put in place an arrangement of co-parenting of some description at the Region E, either with the father as the primary carer or some shared-care or other arrangement - or, alternatively, for [X] to live at Town A against the father’s wishes having unilaterally relocated there.
If the child lives in the Town A area, she can continue to spend much the same amount of time with the father that she would have if she had remained living on the Region E. However, there will be travel involved, and the father will have less of an opportunity to be involved in [X]’s day-to-day life. Moreover, the opportunity to increase the father’s time above and beyond what he was spending with her after separation will in a practical sense be lost.
These are powerful disadvantages to the child living in the Town A region.
But I have to weigh up the circumstances of the mother returning to live on the Region E.
It is common ground that the mother had lost some thirty (30) kilograms in weight in recent times, which she puts down at least partly to being due to anxiety and stress relating to her relationship breakdown and the father’s re-partnering.
The father’s counsel submits that I cannot make a positive finding that this is the reason for the mother’s weight loss, but on any view, the mother has lost a significant amount of weight and has required mental health assistance. Moreover, there has been very high conflict between these parents, living in close proximity on the Region E. The accusations and counter-accusations of denigration flow both ways.
And it would be remiss of me here, to not also mention that the mother accuses of Ms F of being abusive towards her on occasions, although I do not have before me any text messages from Ms F to the mother that are other than polite. The mother’s case is that Ms F was being abusive to her and then subsequently changed course and began to send her polite messages.
I am not in a position to make a finding about this matter other than to say that, if Ms F is sending polite messages, then she is doing, absolutely, what the court would expect of her and the mother should perhaps look to Ms F as an example of the type of message that should be sent.
Nonetheless, there has been significant stress and angst between the three adults, namely, the father, the mother and Ms F, and the child has to some extent been caught in the middle of that.
The Family Consultant in the Child Dispute Conference Memorandum anticipated the high conflict may be having an emotional impact on [X]. The Family Consultant also noted that the mother appeared to be overwhelmed by her circumstances, that she had difficulty recalling timeframes and felt blindsided by the father’s application.
The mother presented to the Family Consultant as communicating in something of a tangential manner which the consultant was concerned about in terms of whether that was her usual personality-based style of communication or because she was anxious and stressed, or it was perhaps symptomatic of some other issue.
Certainly the Family Consultant was most concerned about the seemingly toxic relationship between the parents at the time of the Memorandum.
This is a matter which Ms Flintoff relies upon in submitting to me that in fact returning the child to the Region E area returns the child to the seat of the conflict between her two parents and there is some force in this submission. Returning the child to the Region E is not necessarily an “easy” option for the court, much less so for the mother. And in my view, the child living at the Region E, while it has its advantages, it also comes at what I consider to be a significant cost.
Turning to s.60CC(3)(e), there are real practical difficulties in facilitating a relationship between the father and [X] with the mother living in Town A. These can be ameliorated somewhat by making arrangements in relation to handovers, including at Town B, as has been previously agreed to by the parties without admissions. However, there are genuine issues that on a long-term basis need to be considered. The court is, of course, at this time dealing only with interim arrangements.
There are practical difficulties and expenses involved in the mother returning to the Region E as well. The home has sold. She has no job. She has no income and she would require a lump sum payment from the father either by way of spousal maintenance or lump sum child support or characterised perhaps as an interim property settlement. In this respect, the father submits that a payment to the mother of $10,000 would be agreed to by him. This is a proper concession by him that the practical difficulties and expenses, as referred to in section 60CC(3)(e), of facilitating a relationship between [X] and father at the Region E are in fact somewhat significant.
In terms of s.60CC(3)(f), the mother has shown parental capacity to provide for [X]’s needs, although her capacity has been somewhat compromised or diminished in more recent times on the Region E, as is evident from her text messages.
The father also has a capacity to provide for [X]’s needs, but in a primary care role he is untested.
His partner Ms F provides primarily for the care of [D] and [C], their father being seriously physically disabled. Although the mother raises question marks in relation to Ms F in that regard, particularly concerning alleged alcohol abuse, it is nonetheless clear that [D] and [C] are living with the father and Ms F and there has been no involvement that I am aware of in relation to the Department of Families and Communities.
In terms of s.60CC(3)(g), I am aware as to [X]’s sex and age and nothing else significant arises in this respect in terms of paragraph (g).
In terms of s.60CC(3)(h), this is not a case involving an Aboriginal child or cultural issues.
In terms of s.60CC(3)(i), it is my view that both parents have as a result of their conflict placed [X] in a difficult situation where she is caught in a dispute between them. I do not necessarily blame the parents for this, but the reality is that their present relationship is highly conflictual and a very difficult one for [X] to have to manage and navigate.
In terms of family violence (s.60CC(3)(j) & (k)), there has never been any previous involvement by the police in this respect. Some of the mother’s text messages to Ms F could constitute threatening behaviour. Some of the father’s messages to the mother could constitute threatening behaviour, as could leaving a machete in her home – noting however that he denies these matters.
I do not consider that this is a case in which family violence looms large, however it is certainly open on the evidence to find that there has been some family violence in the form of threatening messages and denigrating type behaviours, noting that the definition of “family violence” in s.4AB of the Act is an inclusive one.
In terms of s.60CC(3)(l), these proceedings are continuing regardless of what orders I make and so I do not consider that subsection to be of relevance today.
In terms of s.60CC(3)(m), I will come back to that matter shortly.
In terms of the statutory pathway, the court is directed to consider the issue of parental responsibility pursuant to section 61DA.
When making a parenting order, the Court must apply a presumption that it is in the best interests of [X] for her parents to have equal shared parental responsibility for her. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. As I have indicated, I certainly have some evidence before me which could give me reasonable grounds to believe that a parent has engaged in family violence.
However, s.61DA(3) provides that when the court is making an interim parenting order, the presumption applies unless the court considers it would not be appropriate to apply it. Given the very high level of conflict between these parents and the disputed facts, particularly in relation to family violence, I consider that s.61DA(3) should be applied and that I should make no order as to parental responsibility.
Accordingly, each parent will have parental responsibility for [X] as set out in the Act. I do not consider it appropriate to make an order for either parent to have sole parental responsibility and I do not consider that equal shared parental responsibility would be in [X]’s best interests at this time given the very high conflict between the parties.
It follows that the question of the time arrangements are entirely at large, having regard to section 65DAA.
This brings me back to the question of reasonable practicability, as explained by the High Court of Australia in MRR& GR (2010) FLC 93-424, particularly at paragraphs 15 through to 19 of the High Court’s judgment.
In the case, the High Court held that the “reasonable practicability” requirement in s.65DAA was concerned with the reality of the situation of the parents and the child, not whether it was desirable that there be equal time spent by the child with each parent. Although the High Court there was referring to s.65DAA(1) (equal time), it is quite clear that the decision would also apply to a consideration of substantial and significant time pursuant to section 65DAA(2). Their Honours’ comments would apply equally to such an order having regard to the terms of the section.
The High Court emphasised that the “reasonably practicability” requirement meant that the court had to consider on a practical basis whether the proposed parenting arrangement arising pursuant to 65DAA was feasible.
Their Honours in that particular case were critical of the trial judge for not taking into account the fact that the mother would be living in a caravan park if obliged to live with the child in Mount Isa, as the trial judge’s orders contemplated and that her work opportunities were very slim and that she was socially isolated to some extent and definitely despondent about her living circumstances.
The High Court took the view that it was not possible for the trial judge in that case to have come to the view that it was in fact “reasonably practicable for an order for equal time parenting to be made pursuant to s.65DAA(1).
Of course section 65DAA does not strictly apply here because I am not making an order for equal shared parental responsibility. However, I raise the matter of “reasonable practicability” because in my view this issue can arise pursuant to section 60CC(3)(m), it being a “catch-all” provision.
In my view the court is entitled to take into consideration for the purposes of s.60CC(3)(m) the various matters which are provided for in the definition of “reasonable practicability” in section 65DAA(5).
In this particular case, implementing an order for the child to live in some form of shared parenting arrangement on the Region E carries with it significant difficulties.
I am not satisfied that the parents have the current and future capacity to implement an arrangement that would benefit the child in that situation. I am not presently satisfied as to their current and future capacity to properly communicate and resolve their difficulties and I am concerned about the impact that such an arrangement might have on the child.
Moreover, I am concerned generally as to the impact on the mother specifically and the flow-on impact on the child in particular. The mother clearly has been suffering enormous mental distress in the Region E area, as I have already indicated. She lost thirty (30) kilograms in weight. She was evidently distressed when talking to the Family Consultant. She does not have a home at the Region E. She does not have a job at the Region E. She has no real income at the Region E above and beyond Centrelink-type benefits.
In contrast, living at Town A the mother is able to stay in a home essentially rent-free which is owned by her stepfather. She is surrounded by her supporting and loving family who have lined up behind her to strongly support her continued living arrangements in that area. The reality of life for the mother - which in my view would impact on the child - would be fairly grim if she were to return to the Region E.
The alternative, of course, is that I simply put in place an order that the child lives with the father on the Region E and that the mother spend time with [X] - which is an entirely untested arrangement. But as the mother indicates that she would move back to the Region E, it would seem to be entirely artificial to put in place such an arrangement.
It would also be contrary to [X]’s best interests to put in place a parenting arrangement with both parties on the Region E given the circumstances that:
(a)the child would be caught up in the conflict between the parents which has been at a very high level;
(b)the mother’s circumstances would be parlous.
I do not consider that such an arrangement would be in [X]’s best interest. I am particularly mindful that the time that can be spent between the father and [X] in the interim, albeit from Town A, can be much the same as was being facilitated while the mother was living in the Region E after the father moved out.
This harkens back to the observation of Kent J in Pawley & Pawley that statements of general principle do not apply in the abstract or have application independent of the facts of the particular case. In this case, the mother has always been [X]’s primary carer. She is presently in an environment that is supportive, and although it does not provide the optimum relationship with the father as the court would like to see occur, equally the legislation does not aspire for an optimum relationship: see the judgment of Kay J in Godfrey & Sanders [2007] FamCA 102.
As his Honour said at paragraph 36 of that judgment, even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
I am also aware of the circumstances of the parties in terms of their employment, particularly that the mother is available full-time for the child at this time, and I note the father’s work hours and also the work hours of his partner Ms F.
The court is of the view that, weighing up all of these considerations, the orders which would most benefit [X], which would be in her best interests, are orders which will in fact permit the mother to remain living in Town A in the interim, but for the father to spend substantial and significant time with [X].
I, therefore, propose to make orders which I will now publish and which will be sent to the parties by email.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 22 May 2019
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