Calvery and Calvery
[2009] FMCAfam 165
•25 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALVERY & CALVERY | [2009] FMCAfam 165 |
| FAMILY LAW – Children's matters – Court not willing to order a parent to live in a particular location – no principle that parents are required to live in close proximity following relationship failure. |
| Family Law Act 1975, ss.60CC, 65DAA |
| Latton & Pell [2007] FMCAfam 1103 AMS v AIF [1999] HCA 26; 199 CLR 160 W and R (2006) FLC 93-251 Sampson & Hartnett (No 10) [2007] FamCA 1365 |
| Applicant: | MR CALVERY |
| Respondent: | MS CALVERY |
| File Number: | DGC 1208 of 2008 |
| Judgment of: | Turner FM |
| Hearing dates: | 26 & 27 November 2008 (Dandenong) 5 February 2009 (Melbourne) |
| Date of Last Submission: | 5 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mansfield |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | Ms Manova |
| Solicitors for the Respondent: | Paul Pattison |
ORDERS
That the parents have equal shared parental responsibility for the child [X] born in 2006.
That [X] live with the Wife and she be permitted to remain living in Queensland.
That [X] spend time and communicate with the Husband as follows:
(a)For 2 weeks during each Queensland school term holiday, to coincide with the Wife’s study breaks and to occur in Victoria;
(b)For 3 weeks over the long summer holidays, to include Christmas Day in each alternate year and to occur in Victoria;
(c)For 3 days over a weekend every 6 weeks during the school term period to occur on an alternating basis in Queensland or Victoria at times as agreed and failing agreement from 12 noon Friday to 12 noon Monday;
(d)At such other times to be agreed, by telephone and/or web-cam on special occasions, including the Husband’s and [X]’s birthdays, and Father’s Day should [X] not otherwise spend time or communicate with the Husband.
(e)As otherwise agreed between the parties.
That the costs for [X]’s travel between Queensland and Victoria are to be borne as follows:
(a)the wife is to be responsible for [X]’s travel costs to facilitate the Husband’s time with [X] as per paragraphs 3(a) and (b);
(b)the costs for the visits in sub-paragraph (c) are to be shared with the Husband paying for his travel costs to and from Queensland and the Wife paying for [X]’s travel costs to and from Victoria.
That both parents ensure that [X] has access to a telephone and computer to facilitate communication by telephone and web-cam.
That the parents advise each other of any change of address or telephone contact details.
That the parents, their servants and agents be restrained by injunction from denigrating the other parent or any of their family in front of or within the hearing of [X].
That the parents advise each other as soon as practicable of any hospitalisation or serious illness affecting [X].
Otherwise all extant applications are dismissed.
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 Attachment A hereto and these particulars are included in these orders
IT IS NOTED that publication of this judgment under the pseudonym Calvery & Calvery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 1208 of 2008
| MR CALVERY |
Applicant
And
| MS CALVERY |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The parties married in April 2006 and separated in mid September 2007. They have one child [X] born in 2006 (“[X]”). [X] lives with his mother in Queensland. The father lives in [F], Victoria.
By application filed on 9 April 2008 the husband sought final orders:
·That the parties have equal shared parental responsibility for [X].
·That the wife return their child [X] born in 2006 to Victoria, and that [X] spend time with the father, as specified in his application.
Alternatively orders were sought:
·That should the wife to continue to live outside Victoria, [X] live with the husband and spend time with the wife as determined by the Court.
In the amended application filed on 14 December 2008 the husband seeks orders:
·That the parties have equal shared parental responsibility for [X].
·That [X] live with the wife in [F] / [M] area in Victoria, and spend time with the husband as specified in the amended application.
In the final written proposal for the husband, he seeks orders:
·That the parents have equal shared parental responsibility for [X].
·That [X] live with the wife in the [F] / [M] Area, or that the wife cause [X] to live in that area.
·That [X] spend time with the husband as specified in the orders.
·That the wife be restrained from relocating [X]’s residence to more than 50 kms from [F] without the husband’s consent.
Alternatively, the husband seeks orders:
·That the parties have equal shared parental responsibility for [X].
·That [X] live with the wife in Queensland.
·That [X] spend time with and communicate with the husband as specified in the orders.
·That the wife pay the travel costs of [X] for all periods he spends time with the husband other than 3 day weekend periods, when the parties are to share equally [X]’s travel costs.
The response filed by the wife on 28 April 2009 sought orders:
·That the parties have equal shared parental responsibility for [X].
·That [X] be permitted to remain with the wife at [K] in Queensland and that [X] spend time with the husband as ordered by the Court.
In the amended response filed on 20 November 2008, the wife seeks orders:
·That the parties have equal shared parental responsibility for [X].
·That [X] live with the wife, and the father spend time with [X] by web-cam.
·That the first year [X] is to be returned to the [F] area for one fortnight every three months, and spend overnight and daytime with the husband every second day.
·That in the second year [X] is to be returned to [F] area every three months, and spend two days and two nights with the husband alternating over the fortnight.
·That in the third year and throughout [X]’s kindergarten and primary school years, [X] is to be returned to the [F] area for a fortnight every three months, to spend two period of five nights with the husband separated by three days and three nights with the wife.
·With such further times as agreed or ordered.
In her final written proposal for the wife she seeks orders:
·That the parties have equal shared parental responsibility for [X] with the parties to consult on specific matters and be responsible for the day to day care of [X] when he is with them.
·That [X] live with the wife in Queensland.
·That [X] spend time with the husband and communicate with him as specified.
·That the wife travel to Victoria with [X] at the wife’s expense to facilitate [X] spending tine with the husband.
Alternatively, the wife seeks orders:
·That the parents have equal shared parental responsibility with [X] with the parents to consult on specific issues and be responsible for the day to day care of [X] when he is with them.
·That [X] live with the wife in Ballarat.
·That the child spend time with the husband as specified.
·That the husband collect and deliver [X] from and to the mother’s residence.
It is therefore agreed that the parties have equal shared parental responsibility for [X]. The Court is satisfied that there are no reasons why it would not be in the best interest of [X] for his parents to have equal shared parental responsibility for him and the Court so orders.
Given that both parties work, it is not considered practicable for [X] to spend equal time with them, even if [X] lives in Victoria. The husband does not seek an order for equal time with [X] (Court Transcript page 9, line 9).
The wife lives in [K], Queensland with [X] and her parents. She is studying for an advanced diploma in [omitted], which course she says is not available in the same form in Victoria. However, a similar course would be available and she could transfer. She has marketed [omitted] from home and could conduct that activity again in Victoria. The father lives in [F] and rents the former matrimonial home.
Family Report
The report recommended that it is not in the best interests of [X] for him to live interstate away from one of his parents (para 19).
The report recommends that [X] primarily reside with the wife and have substantial and significant time with the husband (para 24).
The report recommends that if the parents reside within a reasonable driving distance of each other, [X] spend time with his father every second alternate weekend, plus three evenly spaced individual week nights and days a fortnight. The report recommends a total of 5 days a fortnight with the husband and 9 days a fortnight with the wife.
Once [X] is at school it is recommended that [X] spend time with his parents week–about during his school holidays.
The wife alternate proposal is that [X] live with her in Ballarat and spend time with the father each alternate weekend, on the husband’s and [X]’s birthdays, and on Christmas/Boxing Day. This alternative goes some way towards meeting the recommendations in the report. However on average it provides for 5 days per fortnight with the husband. From one Friday to the next Friday week, the wife’s proposal is for 4 days; from one Saturday to the next Saturday week, the wife proposes 6 days. It would be necessary to add each Wednesday to the first calculation to provide 5 days per fortnight, plus birthdays and time at Christmas. Once [X] commences school it would be necessary to vary his time with his father so that he spends time with him on days that fall on weekends and holidays, and days that do not fall on weekends and holidays so that the husband can be involved in [X]’s daily routine (s.65DAA(3)).
Should the wife live in Ballarat and the husband live in [F] it would not be reasonably practicable for [X] to spend overnight time with the husband on Sundays or weekdays, as that would make it difficult for him to arrive at kindergarten, prep school or school in Ballarat on time. Travel of that nature would have an adverse impact on [X] as [F] to Ballarat is approximately 167 kms or 2 hours travelling time. The alternative that the wife live in Ballarat therefore would make it impracticable for [X] to spend substantial and significant time with the husband once [X] reaches school age. It is preferable to make orders that are least likely to lead to the institution of further proceedings in relation to [X] (s.60CC(3)(l)). The Court must therefore take into account what is to happen once [X] attends school. The Court does not find a capacity for the parents to arrange for [X] to spend equal time with each of them, or substantial and significant time with the husband.
Should [X] continue to live in Queensland with his mother neither equal time with both parents nor substantial and significant time with the husband would be practicable.
Both proposals of the wife would therefore preclude [X] spending substantial and significant time with the husband.
The husband seeks an order forcing the wife to relocate to [F]. “There is a yet no principle that separated parents are required to line in close proximity with one another following relationship failure”. Latton & Pell [2007] FMCAfam 1103 at [52].
The Court is very reluctant to place such a restriction on the freedom of the wife to choose where she lives. It is not willing to order that the wife live in the [F] area. One alternative is to order that [X] live within one hour’s travelling time from the husband’s residence. This option would be disruptive to [X] and interfere with the right of the wife to choose where she wants to live. Of course the question is whether in all the circumstances it is appropriate to restrain the primary care giver from choosing the child’s place of residence? AMS v AIF [1999] HCA 26; 199 CLR 160. The Court refers to the following passage in the judgment of Justice Carmody in W and R (2006) FLC 93-251 at [95].
“95. Fourthly, freedom of movement and the right of adults decide to where they live are highly important social values which are not to be interfered lightly, especially where the relocating parent is established and unchallenged primary carer of the children and has a proven record of meeting their needs and her responsibilities in performing the that role.”
The Court refers also to the follow passage in the judgment of Justice Kaye in Sampson & Hartnett (No 10) [2007] FamCA 1365 at [121]:
“Whilst we have not been directly asked to determine the issue of the power of the court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent, I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances”
The husband proposes as an alternative, that the wife continue to live in Queensland, which is where she wants to live. It would be less disruptive for [X] to continue to live in Queensland. The wife is doing a course in Queensland, and receives financial assistance from her parents. [X] is living with his mother and maternal grandparents.
The wife is the primary care giver. In all the circumstances, it is not appropriate to restrain her from choosing Queensland as her and [X]’s place of residence.
The alternative proposed by the husband is that [X] live with the wife in Queensland and spend time, and communicate, with the husband as follows:
a)For five (5) days during the school holidays in March-April each year to coincide with the mother’s study breaks, to occur in Victoria;
b)In August each year to coincide with the child’s birthday of 10 August, for two (2) periods of five (5) days and five (5) nights with the father, separated by two days and nights with the mother, to occur in Victoria;
c)For four (4) weeks during the Christmas school holidays each year on the basis the of the child spending periods of five (5) days and five (5) nights with the father separated by two (2) days and two (2) nights with the mother. In relation to Christmas Day, the child shall spend from 12 noon with the mother. In relation to Christmas Eve, the child shall spend from 12 noon Christmas Eve to 10.00 am Christmas Day with the father in odd number years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years, to occur in Victoria.
d)For two (2) days on the weekend of Fathers Day, to occur on an alternating basis between Queensland and Victoria, with the time spent in Queensland in odd numbered years and the time spent in Victoria in even numbered years.
e)For periods of time as agreed between the parties when the father is available to travel to Queensland to spend time with the child, in addition to the provisions of (a) (b) (c) and (d) hereof.
f)By web-cam at 7.30 am on Tuesday and Wednesday mornings and at times to be agreed between the parties on Saturdays and Sundays, with either party to initiate the call.
g)By telephone at all reasonable times.
h)That the mother travel to Victoria with the child at the mother’s expense to facilitate the child spending time with the father in Victoria.
Again, this proposal suffers from defect that the husband will not be able to be involved in the daily routine of [X] once [X] reaches school age. However, it would enable the wife to continue to live in Queensland with [X], which is her very strong desire.
As the wife’s alternative proposal is that she return to live in Victoria (albeit at Ballarat) the Court has considered ordering that [X] live with the wife no more than one hour’s drive from the husband’s residence in [F]. That would then enable [X] to spend substantial and significant time with the husband now, and after he commences school. That order would be least likely to lead to the institution of further proceedings in relation to [X]. However, for the reason already expressed, the Court is not inclined to restrict the right of the wife to chose where she wants to live.
The current orders (made on 29 April 2008) provide for [X] to live with the wife in Queensland. A continuation of that arrangement would therefore be less disruptive to [X] than moving to near [F].
An option the husband may consider in the future, should he wish to spend more time with [X], is for the husband to relocate to Queensland. The Court is however aware that the husband gave evidence that the type of work he has expertise in is available only in Victoria. He may be willing however to change his speciality in order to live closer to [X] and spend more time with him. That is a matter for him.
The Court must determine what arrangements are in the best interest of [X].
Primary considerations section 60CC(2)
The benefit to the child of having a meaningful relationship with both parents -section 60CC(2(a)
For [X] to have a meaningful relationship with both parents he must be able to spend substantial time with each of them, now and after he commences school.
The need to protect the child - section 60CC(2)(b)
There are no allegations of current abuse, neglect or family violence. Although the father has been suicidal in the past, there is no evidence of a current tendency. There are no relevant allegations against the wife.
Additional considerations section 60CC(3)
Views expressed by the child – section 60CC(3)(a)
At the age of two [X] is not old enough to express a view.
The nature of the relationship of the child with each parents - section 60CC(3)(b)(i)
The nature of the relationship of the child with other persons – section 60CC(3)(b)(ii)
[X] has a good relationship with each parent, and apparently with his maternal grandparents.
The willingness and ability of each of the parents to facilitate and encourage the relationship between the child and other parent - section 60CC(3)(c)
From the final proposals submitted by the parties the Court decides that the both parties are willing and able to facilitate a close and continuing relationship between [X] and the other parent.
Likely effect of changes in child’s circumstances, including separation from either parent or other persons – section 60CC(3)(d)
To order the wife to live in Victoria with [X] would disrupt [X]’s relationship with his maternal grandparents with whom he has been living since April 2008, and be detrimental to him. Allowing the wife to remain in Queensland would not change a current circumstance of [X].
Practical difficulty and expense of child spending time and communicating with parents 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 - section 60CC(3)(e)
There are practical difficulties and expenses in [X] continuing to live in Queensland. However they are outweighed by other considerations. Both parties believe that the expense of [X] travelling to and from Victoria to spend time with the husband can be met by them. The husband could relocate to Queensland and eliminate those expenses should that be necessary, or should he wish to. It would benefit [X] and their relationship if he were to do so.
Capacity to provide for the needs of the child, including emotional and intellectual needs - section 60CC(3)(f)
Both parties appear able to provide for the needs of [X]. There is no evidence about the grandparents to enable the Court to reach a conclusion other than the maternal grandparents provide financial assistance to the wife which contributes to the needs of [X]. That assistance may cease should the wife and [X] relocate to Victoria.
Maturity, sex, lifestyle and background of child and parents - section 60CC(3)(g)
Not relevant.
Aboriginal or Torres Strait Island child - section 60CC(3)(h)
Not relevant.
Attitude to the child and the responsibilities of parenthood demonstrated by each parent - section 60CC(3)(i)
Both parents demonstrate a responsible attitude to [X] and to his parenting.
Family violence - sections 60CC(3)(j) and (k)
Although there is evidence of some family violence, it was not directed towards [X]. Whether [X] lives in Queensland or Victoria will not affect this issue. With the husband’s history of a suicidal tendency, the Court has some concern about [X] living with the husband (s.60CC(3)(j)). Section 60CC(3)(k) is not applicable.
Orders less likely to lead to further proceedings – section 60CC(3)(l)
Ordering that the wife to remain in Queensland and for [X] to spend time with his father, as proposed by the father is preferable and least likely to lead to further proceedings in relation to [X].
Any other fact or circumstance that the Court thinks is relevant – section 60CC(3)(m)
[X] remaining in Queensland where the wife wishes to live, and in accordance with one of the husband’s alternatives, would be less disruptive to [X] and to the wife. This should lead to less acrimony between the husband and wife which will benefit [X]. Also he is living with his maternal grandparents who give the wife financial assistance.
Other considerations sections 60CC(4) and (4A)
Extent of fulfilment of parental responsibilities – sections 60CC(4) and (4A)
Both parents have fulfilled their responsibility as parents to the extent possible, given that [X] lives in Queensland away from the husband. Nothing has been put to the Court to show that the husband has not taken the opportunity to participate in making decisions about long–term issues relating to [X]. Similarly nothing has been put to show that the wife has failed to facilitate the husband participating in making such decisions, other than the serous allegation that she relocated with [X] to Queensland without the husband’s approval. However the parties were able to reach agreement on the time [X] was to spend with the husband in December 2008 / January 2009.
Taking account of the issues in this case the Court decides that it is in the best interests of [X] that he continue to live in Queensland with the wife, and spend time with the husband according to the alternative orders proposed by him.
The Court makes the following orders:
(1)That the parents have equal shared parental responsibility for the child [X] born in 2006.
(2)That [X] live with the Wife and she be permitted to remain living in Queensland.
(3)That [X] spend time and communicate with the Husband as follows:
(a)For 2 weeks during each Queensland school term holiday, to coincide with the Wife’s study breaks and to occur in Victoria;
(b)For 3 weeks over the long summer holidays, to include Christmas Day in each alternate year and to occur in Victoria;
(c)
For 3 days over a weekend every 6 weeks during the school term period to occur on an alternating basis in Queensland or Victoria at times as agreed and failing agreement from
12 noon Friday to 12 noon Monday;
(d)At such other times to be agreed, by telephone and/or web-cam on special occasions, including the Husband’s and [X]’s birthdays, and Father’s Day should [X] not otherwise spend time or communicate with the Husband.
(e)As otherwise agreed between the parties.
(4)That the costs for [X]’s travel between Queensland and Victoria are to be borne as follows:
(a)the wife is to be responsible for [X]’s travel costs to facilitate the Husband’s time with [X] as per paragraphs 3(a) and (b);
(b)the costs for the visits in sub-paragraph (c) are to be shared with the Husband paying for his travel costs to and from Queensland and the Wife paying for [X]’s travel costs to and from Victoria.
(5)That both parents ensure that [X] has access to a telephone and computer to facilitate communication by telephone and web-cam.
(6)That the parents advise each other of any change of address or telephone contact details.
(7)That the parents, their servants and agents be restrained by injunction from denigrating the other parent or any of their family in front of or within the hearing of [X].
(8)That the parents advise each other as soon as practicable of any hospitalisation or serious illness affecting [X].
(9)Otherwise all extant applications are dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 25 March 2009
0
3
1