Clements and Clements

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEMENTS & CLEMENTS

[2014] FCCA 824

Catchwords:
FAMILY LAW – Parenting orders for a ten year old girl – relocation of 115 kilometres – whether such a move would prevent the father from maintaining a meaningful relationship with the child.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Tait & Densmore (2007) FamCA 1383
Godfrey & Sanders (2007) Fam CA 102
Mazorski v Albright (2008) 37 FLR 518

Applicant:

MS CLEMENTS

Respondent:

MR CLEMENTS

File Number:

MLC 2119 of 2012

Judgment of:

Judge Small

Hearing dates:

10 & 11 February 2014

Date of Last Submission:

11 February 2014

Delivered at:

Melbourne

Delivered on:

1 May 2014

REPRESENTATION

Counsel for the Applicant:

Ms M. Smallwood

Solicitors for the Applicant:

Stephen Farmer & Associates

Counsel for the Respondent:

Mr I. Mawson Q.C. & Mr Matta

Solicitors for the Respondent:

Peter Falconer & Associates

ORDERS

All previous parenting orders in relation to the child X born (omitted) 2004 (“the child”) are hereby discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the wife.
For the purposes of paragraph 3 hereof, the wife is permitted to relocate the residence of the child to (omitted) from the second Saturday of the second term school holidays in 2014.
Until the second Saturday of the second term school holidays in 2014, the child shall spend time and communicate with the husband as follows:
(a)Each alternate week during the school term from the close of school on Thursday to the commencement of school on Monday in the same pattern as is currently in place, save that such time shall suspend from 6:00 p.m. on the day before Mothers’ Day 2014 to 6:00 p.m. on Mothers’ Day if that is a weekend when the child would otherwise be spending time with the husband;
(b)In each intervening week during the school term from the close of school on Thursday to the commencement of school on Friday;
(c)For the first week of the second school term holidays in 2014 from the close of school until noon on the second Saturday;
(d)On the husband’s birthday, (omitted) 2014, from the close of school until 8:00 p.m. with time to suspend on the wife’s birthday, (omitted) 2014, from the close of school until 8:00 p.m. should the child be otherwise spending time with the husband at that time;
(e)At such other times and places as the parties might agree from time to time.
From the second Saturday of the second term school holidays in 2014, the child shall spend time and communicate with the husband as follows:
(a)Each alternate week during the school term from the close of school on Friday to the commencement of school on Monday, or Tuesday if the Monday is a public holiday, beginning in the first week of the third school term in 2014;
(b)In each intervening week during the school term from the close of school to 8:00 p.m. on Thursday;
(c)For half of the Term 1 and 3 school term holidays each year by agreement between the parties and failing agreement from the close of school until noon on the second Saturday in even-numbered years and from noon on the second Saturday to 6:00p.m on the third Sunday in odd-numbered years;
(d)From 2015 for 10 days in the mid-year school term holidays each year by agreement between the parties and failing agreement from the close of school until 6:00 p.m. on the second Tuesday in even-numbered years and from 6:00 p.m. on the first Thursday to 6:00p.m on the second Sunday in odd-numbered years;
(e)From the close of school on the day before all school half-term holidays and curriculum days to 5:00 p.m. on the last of those days if more than one day at any particular time;
(f)For half of the child’s long summer holidays each year by agreement between the parties and failing agreement from noon on the first day of the holidays until noon on the mid-point day in even-numbered years and from noon on the mid-point day until noon on the final Sunday in odd-numbered years;
(g)Notwithstanding the provisions of paragraph (f) hereof, for Christmas each year by agreement between the parties and failing agreement from 5:00 p.m. on Christmas Eve until noon on Christmas Day in even-numbered years and from noon on Christmas Day until 5:00 p.m. on Boxing Day in odd-numbered years;
(h)For Easter each year by agreement between the parties and failing agreement from the close of school on Maundy Thursday until 6:00 p.m. on Easter Eve in even-numbered years and from 6:00 p.m. on Easter Eve until 6:00 p.m. on Easter Monday in odd-numbered years;
(i)From 6:00 p.m. on the day before Fathers’ Day each year to 6:00 p.m. on Fathers’ Day;
(j)On the husband’s birthday each year from the close of school until 8:00 p.m. should it fall on a weekday, and for four hours by agreement if a weekend day when the child is not usually spending time with the husband and failing agreement from noon to 4:00 p.m.;
(k)On the child’s birthday each year from the close of school until 8:00 p.m. should it fall on a weekday, and for four hours by agreement if a weekend day when the child is not usually spending time with the husband and failing agreement from 10:00 a.m. to 2:00 p.m.;
(l)By telephone, Skype, Facetime or other electronic communication at any time at the instigation of the child;
(m)At such other times and places as the parties might agree from time to time.
The time spent pursuant to paragraph 6 hereof shall suspend on the following occasions:
(a)From the close of school until 8:00 p.m. on the wife’s birthday each year should it fall on a weekday, and for four hours by agreement between the parties and failing agreement from noon to 4:00 pm. on the wife’s birthday and 10:00 a.m. to 2:00 p.m. on the child’s birthday should they fall on a weekend day;
(b)From 6:00 p.m. on the day before Mothers’ Day each year to 6:00 p.m. on Mothers’ Day;
(c)From noon on Christmas Day until 5:00 p.m. on Boxing Day in even-numbered years and from 5:00 p.m. on Christmas Eve until noon on Christmas Day in odd-numbered years;
(d)from the close of school on Maundy Thursday until 6:00 p.m. on Easter Eve in odd-numbered years and from 6:00 p.m. on Easter Eve until 6:00 p.m. on Easter Monday in even-numbered years;
(e)At any time when the child wishes to make contact with the wife by telephone, Skype, Facetime or other electronic means;
(f)On such other occasions as the parties might agree from time to time.
Changeover shall take place at a venue as agreed between the parties from time to time and failing agreement at the child’s school or the wife’s home at the commencement and at the child’s school or the husband’s home at the conclusion of time spent, with the husband to collect the child at the commencement and the wife to collect her at the conclusion of time spent.
Either party shall be at liberty to have a third party who is known to the child facilitate transport and changeover.
Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
In the event that either party wishes to take the child for a holiday out of the State of Victoria during the time the child is spending with them pursuant to these orders, they shall provide to the other, no less than 14 days before departure, a full itinerary with travel, accommodation and contact details for the child while she is away.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the child’s presence or hearing, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the child’s presence or hearing, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while she is in their respective care and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child, including the dosage prescribed, and ensure that such medication travels with the child.
The wife shall authorise any school or the organisers of any curricular activities in which the child is enrolled, to provide to the husband at his expense all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
Both parties, their respective partners and the child’s grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2119 of 2012

MS CLEMENTS

Applicant

And

MR CLEMENTS

Respondent

REASONS FOR JUDGMENT

Introduction

X is ten years old having been born on (omitted) 2004. She is by all accounts a bright, happy and very resilient child.
Her parents have been in dispute about her living arrangements since they separated in February 2012.
X currently lives in Melbourne with her mother, Ms Clements (“Ms Clements”) and spends substantial and significant time with her father, Mr Clements (“Mr Clements”). She is currently in Year 4 at (omitted) Primary School and is apparently doing very well.
Ms Clements wishes to move with X back to (omitted), her home town and the parties’ home until 2010 when the family moved to Melbourne so that Mr Clements could pursue his career with (employer omitted).
Mr Clements wants X to remain living in Melbourne, where he has now settled.
Therefore, the issues to be decided in this case are whether it is in X’s best interests to move back to (omitted) with her mother, or to stay in Melbourne, and if so, whether she should spend equal time with each parent.

Background

Before looking at the issues, it is pertinent to set out some background to these matters.
The parties were married on (omitted) 1995.
They lived in (omitted) until they decided to move to Melbourne in late 2010 so that Mr Clements could pursue his career. They did not sell their (omitted) property.
They had purchased the property at Property H (“the Melbourne property”) in November 2008. Mr Clements had spent weeknights there and returned home to (omitted) on weekends after he obtained a senior position at (employer omitted) in Melbourne. The whole family moved into the Property H property in late 2010, living there until separation.
X is their only child.
The parties separated on (omitted) 2012. They are not yet divorced.
The marriage ended when Ms Clements refused to return to Melbourne after summer holidays in (omitted) and enrolled X in a private school there.
There was an incident between the parties at the date of separation which led to an interim intervention order being made against Mr Clements. Those proceedings resolved with Mr Clements providing an undertaking to the court.
Since orders were made on 17 April 2012, X has lived with her mother in the Melbourne property, while Mr Clements has lived in the (omitted) area. X has spent five nights per fortnight plus school holiday time and other specific times with Mr Clements since that time.
Ms Clements has spent most weekends and school holidays in the (omitted) property and X has accompanied her when she is not spending time with her father pursuant to court orders.
The Melbourne property has now been sold which means that Ms Clements and X need to move in any event.
As far as I am aware, the (omitted) property remains on the market for sale, although the distribution of its sale proceeds (and those of the Melbourne property) is governed by the Orders made on 6 December 2012 and therefore forms no part of these proceedings.

Procedural History

Ms Clements filed an Initiating Application and Affidavit in support on 9 March 2012, seeking Orders that the parties have equal shared parental responsibility for X, that she live with Ms Clements and that she spend time with her father at such times as the parties might agree.
Mr Clements filed his Response on 16 April 2012 together with an Affidavit in support also seeking an order for the parties to have equal shared responsibility for X.
However, he also sought orders providing for X to live with each parent in a week about regime, for them to share her care during school holidays, and for her to spend special occasions with each.
The matter came before Federal Magistrate Riethmuller (as His Honour then was) in the Duty List on 17 April 2012 and interim parenting and property orders were made providing for a Family Report, for the parties to attend a Post-Separation Parenting Course, for Property Valuations and Mediation.
The matter was then listed for final hearing on 4 December 2012 for two days.
The matter came before the Court on 6 August 2012 for Mention before Federal Magistrate Riethmuller and further interim parenting Orders were made.
On 12 October 2012, the wife filed an Amended Initiating Application setting out the parenting orders sought in much greater detail and, significantly, adding an order that she be permitted to return to (omitted) to live with X.
On 5 December 2012, Mr Clements filed his Amended Response seeking the same parenting orders as previously but adding an order that X be enrolled at (omitted) School in Melbourne. He did not seek an injunction restraining Ms Clements from moving X’s place of residence away from Melbourne.
The matter came on for Final Hearing before Federal Magistrate Riethmuller on 5 December 2012 for two days. Final property orders and Interim parenting orders were made by consent between the parties. The parenting issues were adjourned to a date to be fixed in 2013 for a Final Hearing with an estimated hearing time of 1 day.
The matter again came before Federal Magistrate Riethmuller on 26 March 2013 for Mention. Orders were made adjourning the matter for Final Hearing on 21 October 2013 for an estimated hearing time of four days.
The matter came before me on 23 September 2013 for Mention. Interim parenting and property Orders were made by consent and the matter was adjourned with priority to 10 February 2014 for Final Hearing.
On 31 January 2014, Ms Clements filed a Further Amended Initiating Application. In that Application, she sought Orders that X be enrolled in the private school in (omitted) in the 2014 year, and that she spend time and communicate with Mr Clements each alternate weekend, on school curriculum days and half-term days, during school holidays and on other special days.
The trial ran from 10 to 12 February 2014. Witnesses were the husband, the wife and Mr V, the clinical psychologist who prepared two family reports in the proceedings.
My decision was reserved.

The Issue – Is it in X’s best interests to live in (omitted) or to stay in Melbourne?

First, I think it pertinent to say that it is very clear from all evidence before the Court that both parents love X dearly and want only what is best for her.
The problem is that they have differing views about how to achieve that goal.
Second, it is relevant to note that any case involving an application to relocate a child’s place of residence is decided on the same principles as any other parenting case.

The husband’s evidence

If X moves to (omitted), Mr Clements fears that it would be impossible for her to maintain the current close relationship she has with him.
Mr Clements says that he wants to be more than a weekend father and that he wishes to be involved in X’s education and in her life in general.
His Application is for X to live equally with him and Ms Clements in a “week-about” regime. He acknowledges that for that regime to be practicable, the parties would need to live in the same city. He says that city should be Melbourne.
He says Ms Clements moved to Melbourne in 2010 as part of a family plan to which both parties agreed and that X should remain in Melbourne.
In relation to that specific issue, I note that this is not a contract dispute, and what the parties did or did not agree in 2009 or 2010 is not, in my view, relevant to what is in X’s best interests now.
In his Affidavit sworn 3 December 2012, Mr Clements says that he has never known Ms Clements to have an extended friendship group in (omitted) and that Ms Clements could well afford to live in Melbourne once final property orders were made.
However, Mr Clements deposed at that time that if Ms Clements were permitted to return to (omitted) with X he too would move to (omitted) in order to be close to X. He says that in those circumstances his income would necessarily reduce as he would not be able to find work at the same level as his position at (employer omitted).
In his affidavit sworn 5 February 2014 Mr Clements states that he was made redundant from (employer omitted) in late 2013. He said that he has begun his own (omitted) business since then and that that provides him with more flexibility so that he can be available to care for X. He says that his work is primarily home-based and he is required to attend at corporate locations only “from time to time”[1].
[1] Affidavit of the Husband sworn 5 February 2014 paragraph 5.7.
He does not repeat his evidence that he would be willing to move to (omitted) were the court to make an order permitting Ms Clements and X to relocate.
Mr Clements says that X is settled and doing well at (omitted) Primary School, that she has many friends there, and that she is involved social activities like swimming, attending the zoo and ice skating in Melbourne.
At trial, Mr Clements was put under some pressure in relation to his evidence about his employment and its flexibility, and particularly in relation to the fact that he had not disclosed the change in his employment status until he filed his Affidavit sworn on 5 February 2014.
His evidence at trial was that the nature of his (omitted) work is that he must immerse himself in the work of his client for the duration of the contract, and that he is required to attend the venue from which the client conducts business when the business is operating. He said that any given contract could last months.
That is in direct contrast to the evidence provided in his Affidavit only five days before trial.
At trial, when questioned about this issue, Mr Clements appeared evasive and unwilling to concede that his oral evidence contradicted that of his latest Affidavit.
He was particularly evasive in answering questions about why he had not told X about his changed working circumstances until some five days before trial when he had known about them since at least October 2013 and all operational matters to do with his retrenchment package were in the public domain from early January 2014.
It appeared that what Mr Clements was saying was that if X remained in Melbourne his work was flexible enough to allow him to take time off to care for her, but that if she moved to (omitted), his work was not so flexible.
It was difficult to escape the conclusion that Mr Clements was tailoring his evidence to suit his stated goal of X remaining in Melbourne.
He was also clear at trial that he is no longer prepared to move to (omitted) if an order were made allowing Ms Clements to relocate with X.

The wife’s evidence

Ms Clements says that she has always considered (omitted) to be her home, that she never wanted to leave, and that she only agreed to move to Melbourne in 2010 to save her marriage at that time. It is her evidence, supported by two psychologists who have assessed her, that being forced to remain in Melbourne with X has caused her considerable distress and has had a deleterious effect on her mental health.

Ms Clements says that it would simply be unbearable for her to be forced to remain in Melbourne, but that if the court were to make such an order, she would choose to stay and care for X rather than move to (omitted) without her.
At trial Mr Clements’ counsel put to Ms Clements the proposition that as X has done well in the current 9/5 arrangement[2], that arrangement should now be extended to an equal shared “week-about” regime.
[2] That is, an arrangement where X spends nine nights per fortnight with her mother and five nights with her father.
Her response was that such an arrangement would not work because of the animus between the parents and their lack of civil communication. She said further:
X needs a base, you know, a base where she can call home instead of one week here, one week there… She can have that foundation and go to her father from that foundation, spend time with her father, be with her father from that foundation. I think it’s better to have a home base for her.

The expert evidence

Apart from the evidence found in her Affidavits and the oral evidence she gave at trial, the major evidence in support of Ms Clements’ application for relocation to (omitted) is found in the reports of several mental health professionals.
First, Mr V, clinical psychologist, provided two family reports in these proceedings: one on 25 October 2012 and another on 6 February 2014.
In both of those reports Mr V is critical of the parties, saying in his first report:
The difficulty with this dispute is that, when things are distilled, it reflects predominantly on the needs of X’s parents[3].
[3] Report of Mr V dated 25 October 2012 paragraph 31.
In his second report Mr V expanded on that theme:
…one of the core features of the dispute (is) the combative nature of their interaction, that at a parental level reflects the belief by both parents that, if the other parent’s wish prevails, that this will reflect a sense of loss both in the dispute, and loss insofar as control over X (sic)[4].
[4] Report of Mr V dated 6 February 2014 p 10.
Mr V says that Ms Clements presented as agitated and restless at interview, that she feels under attack by the husband and that she thinks he misrepresents things to his advantage.
It is Mr V’s evidence that Mr Clements believes that everything Ms Clements does is for the purposes of these proceedings rather than for X’s welfare. Mr Clements was critical of Dr D’s reports (see below) and told Mr V that he thinks Ms Clements misrepresents her ties to (omitted) in order to advantage herself in these proceedings.
Mr V says that X has clearly been influenced by her mother’s wish to return to (omitted) and feels that her mother would be sadder if they did not return to (omitted) than her father would be if they did.
At trial, Mr V said that at the time of the second report interviews, the dynamic between the parties had become even more fixed and they were “even more strongly invested in their own hopes and outcomes”[5].
[5] Transcript p131 paragraph 5.
However, and in my view significantly, after agreeing that despite all the conflict X was doing well overall, Mr V said the following:
….I think that’s because she’s got a good relationship with them both and I think that, in their own right, they’re nice people who parent at a good level. It’s just that one of them wants to live in (omitted). I mean, there’s still this doubt. It’s kind of straightforward from my perspective. There are only really three options and the sooner we get on with it then everyone will acclimatise[6].
[6] Transcript p131 paragraph 15.
Significantly, Mr V says that while she has a close and loving relationship with Mr Clements, and understands that she would not be able to see him as much if she moved. X sees her mother as her primary carer. That is, it is her mother who she sees as the parent who best meets her everyday material and emotional needs.
He says that while X appears torn between her parents and will no doubt find it difficult no matter what the outcome of these proceedings might be, she is a bright, resilient and capable child and she will thrive in either city.
At trial, Mr V said that the relationship between X and her father was strong and solid and that he did not think it would be qualitatively damaged if X were living in (omitted) and Mr Clements were in Melbourne.
He said that the “ideal” situation for X would be to have both her parents living in the same city and sharing her care though not necessarily equally.
However, he said that while other options might be less than “ideal”, X would thrive whatever decision the court were to make.
He said further and most tellingly:
So, there are options and I think all of them are, from X’s perspective, probably more attractive than having parents who are fighting about it[7].
[7] Transcript p132 paragraph 45.
Next there are two reports from Dr D, a clinical psychologist who assessed Ms Clements’ emotional state in January 2013 and again in September 2013.
In his first report, Dr D said the following:
I consider that there would be a high likelihood of significant psychological sequelae in the event that (Ms Clements) was ordered to remain in Melbourne. She has not, notwithstanding the length of time she has lived in Melbourne, settled to a degree that would provide any degree of reassurance that she would improve in her affect were that to continue. It can be stated that she would respond psychologically poorly to remaining in Melbourne[8].
[8] Report of Dr D attached to his affidavit sworn 29 January 2013 paragraph 13.
He said further that while there was no direct risk to the wife or to X, it would:
… impair the mother’s functioning were she to be deprived of the opportunity to live, and be supported, in (omitted). In that context, it would be likely to be to X’s detriment, in relation to her mother’s parenting, for the wife to be prevented from moving[9].
[9] Ibid paragraph 15.
In his second report Dr D stated that Ms Clements was displaying increased stress and noted that she was taking an increased dose of anti-depressant medication and that she reported psychosomatic symptoms related to her stress level. He said that Ms Clements had called him twice after his interview with her to ensure that he understood the level of her distress.
In that report Dr D stated:
My concern is that her functioning may deteriorate further, and that the stresses have the potential to impair her parenting in a variety of scenarios in which there is a small margin for error or additional pressure…. I cannot dismiss her distress as other than genuine, and it is of concern, particularly in relation to the central role she appears to play in her daughter’s life[10].
[10] Report of Dr D attached to his affidavit sworn 16 September 2013 page 6 paragraph 3.
Dr D described Ms Clements at that time as “close to running on empty”[11].
[11] Ibid.
I note that Dr D was not required for cross-examination at trial and his evidence remains unchallenged.
Dr J, the wife’s general practitioner, in a report attached to an affidavit sworn 22 January 2014, stated that his file in relation to the wife goes back to 1999, but that she had not presented with any mental health issues until 2012 when she presented with depression symptoms following her marriage breakdown. He says that he increased Ms Clements’ anti-depressant medication in August 2013 and that while her depression symptoms have largely resolved she is still emotionally fragile. He describes her prognosis as “guarded” because of the uncertainty in her circumstances and says she will continue to require treatment for depression.
Dr F is the clinical psychologist who has been seeing Ms Clements once a month for therapy in relation to anxiety issues. In her affidavit sworn 30 January 2014 Dr F states that Ms Clements returned to therapy with her in early 2013 and that the uncertainty in relation to her living arrangements has contributed to her raised anxiety level.
It appears to me that when all is said and done, in practical terms, the evidence shows that both parties could live either in Melbourne or in (omitted), and that X will thrive in either city.
This is not essentially a question of practicability. It is a question of desire – that of Mr Clements to remain in Melbourne and that of Ms Clements to return to (omitted).
I do not think either party can be criticised for having those desires, and there is little to distinguish the two positions from X’s point of view.

The Law

The law in relation to parenting matters is found in Part VII of the Family Law Act1975 (“the Act”).
Section 60B sets out the objects of the Act in relation to parenting issues and I set out the relevant parts of that section as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). S.60CA states that when making orders under this part the Court must consider the best interests of the child as its paramount concern.
Section 60CA states that when making a parenting order, the court must consider the child’s best interests as its paramount consideration.
Section 60CC sets out the factors the Court must consider in discerning what orders would best promote a child’s best interests, and I will return to the provisions of s.60CC later in these reasons.
Section 61DA(1) says that when making a parenting order, 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.
In this case, both parents seek an order for shared parental responsibility for X and as the presumption applies and has not been rebutted, I will make that order.
Section 65DAA says that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child then the court must consider whether it is in the child’s best interests to spend equal time or substantial and significant with each parent.
Mr Clements wants orders that he and Ms Clements share X’s care equally. Ms Clements wants X to have what she calls a “foundation home” with her and to be able to leave that foundation home to spend time with her father regularly and frequently.
Section 65DAA(1) requires the court to consider not only whether it is in a child’s best interests to live in an equal shared care arrangement but whether it is “reasonably practicable” for the child to do so. Only if both of those questions are answered in the positive must the court consider making an order for equal shared care.
In this case, the level of bitterness, animosity and distrust between the parties leads to an inescapable conclusion that it is not in X’s best interests to spend equal time with each of her parents.
The evidence is that while both parents love X dearly, her care is seen as a point of control between the parties such that they both see these proceedings as a fight for control over both their own and X’s lives.
That conclusion does not reflect well on either parent.
Mr V’s evidence in relation to the parties’ conflict indicates that while a co-operative co-parenting regime might be “the ideal” for X, a parallel parenting arrangement is, in his words, “good enough”.
I do not therefore propose to make an order for equal shared care for X as I do not believe it is in her best interests to do so.
In those circumstances, and because X sees her mother as her primary carer (while still having a close and loving relationship with her father), I will make an order that X live primarily with her mother.
In addition, as I propose, for the reasons set out below, to make an order allowing Ms Clements to return to (omitted), I find that it is not reasonably practicable for the parties to equally share X’s care.
Having decided the issue of primary care, s.65DAA(2) then requires the court to consider whether a child should spend “substantial and significant time” with the non-residential parent.
“Substantial and significant time” is defined in s.65DAA(3) as:
·time that includes both weekend and holiday time and non-weekend and holiday time;
·time which allows a parent to be involved in a child’s daily routine and occasions and events which are significant to the child;
·time which allows child to be involved in occasions and events which are significant to the parent.
Section 65DAA(4) makes it clear that these considerations do not limit the court in the matters to which it can have regard when deciding whether a proposed order would mean that the child spends substantial and significant time with the parent.
I turn now to the matters a court must consider in determining what is in a child’s best interest as set out in s.60CC of the Act.
There are two “primary considerations” set out in s.60CC(2) and fourteen “additional considerations” set out in s.60CC(3).
I will address those considerations in turn.
Section 60CC(2)(a) states that the first consideration the Court must look at is the benefit to a child of having a meaningful relationship with both of the child’s parents.
Section 60CC(2)(b) states that the second “primary consideration” is the need to protect a child from physical or psychological harm as a result of abuse, neglect, or being exposed to family violence.
Where it might be said that those two considerations conflict, s.60CC(2A) makes clear that the need to protect a child takes precedence over the benefit to a child in having a meaningful relationship with both parents.

Section 60CC(2)(a) – the benefit of a meaningful relationship

The question of what a “meaningful relationship” is has been considered in several cases.
In Tait & Densmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) FamCA 102 between an “optimal” relationship and a “meaningful” relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In Mazorski v Albright (2008) 37 FLR 518, Brown J considered a situation where the mother wished to relocate the residence of a child from one State to another. Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
So, if X’s relationship with Mr Clements is important, significant and valuable to X, and if it is healthy, worthwhile and advantageous to her, it can be said to be a meaningful relationship and thus of benefit to her.
Apart from the evidence of conflict between the parents in this case, there is nothing in the evidence before me which would lead to a conclusion that X has anything but a “meaningful relationship” with Mr Clements in the sense described by Brown J and Cronin J.
I particularly draw the parties’ attention to Brown J’s comment that the term “meaningful” in the legislation is a qualitative and not a quantitative adjective.
The evidence before me is that X’s relationship with her father has a strong foundation, is close, loving and well-developed, and is unlikely to suffer qualitatively if she were to spend less face-to-face time with him than she currently does.
The distance between Melbourne and (omitted) is 115 kilometres and about 1.5 to 2 hours’ drive.
While that distance makes equal shared time impracticable, it does not prevent Mr Clements from being involved in X’s school life and special events should he wish to be so involved. It would no doubt cause him some inconvenience, but it is not impossible.
Therefore, I find that it would not prevent X from having a meaningful relationship with her father if she were to move to (omitted).

Section 60CC(2)(b) – the need to protect a child from harm

Apart from an incident which occurred in the context of the separation of the parties, there is no evidence of any form of family violence in this matter as that term is defined in s.4AB of the Act. Nor is there any evidence of child abuse or neglect.
However, the continuing bitterness and conflict between the parties cannot help but place a continuing pressure on X. She is clearly aware of it and affected by it, and both parties would be well advised to seek professional assistance to consider ways in which they can minimise that effect.

Section 60CC(3) - additional considerations

The additional considerations are as follows.
(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.
X is ten years old. Her views are that she wishes to move back to (omitted) with her mother. She is nevertheless aware of the distress that would cause her father. She is an intelligent child whose wishes, while not determinative on their own, carry some weight in these proceedings.
Section 60CC(3) (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);
It is clear that X has a close, loving and important relationship with both her parents. She also has close relationships with grandparents on both sides.
It is vital that those relationships continue and the orders I propose to make will allow for that continuation.
Section 60CC(3) (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.
Both parents have taken every opportunity to be involved in making decisions about X’s care, welfare and development in both material and emotional terms, and both wish to continue that involvement in her life.
Ms Clements’ unilateral decision to keep X in (omitted) and enrol her in school there in 2012 without Mr Clements’ consent might be said to indicate a lack of understanding about his vitally important role in her life, but it must be said that since then, that role has been recognised in the arrangements for X’s care.

Both parents have spent as much time as possible and communicated with X appropriately since separation.
Section 60CC(3) (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;
Both parents obviously support and maintain X while she is with them. There is no evidence before the court that either party is in any way negligent in his or her obligation to provide for X in the financial sense.
However, Mr Clements’ changed employment circumstances and the uncertainty surrounding Ms Clements’ employment are certainly matters to be taken into account.
In relation to child support, it was Mr Clements’ evidence at trial that he did not intend to seek a decrease in his child support assessment as a result of his changed employment circumstances because he did not expect his taxable income to change at all. It is yet to be seen whether that continues to be the case.
At the time of trial, Ms Clements did not yet have employment in either Melbourne or (omitted), although she remained confident of finding employment as an (occupation omitted) in the near future.
Section 60CC(3) (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;
Clearly if X moves to (omitted) with her mother, there will be a change in her circumstances, and a separation, at least in the geographical sense, from her father and paternal family.
However, as that change results in a separation of only 115 kilometres, she will be able to spend regular and frequent time with her father, albeit not as frequent and substantial as if her parents were living in the same city.
It must be said in relation to this issue, that if Mr Clements were to move to (omitted), that separation would be far less significant, and indeed the current regime of substantial and significant time could continue.
Section 60CC(3) (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;
There is no doubt that the 115 kilometre distance between Melbourne and (omitted) creates a practical difficulty for X in spending frequent face-to-face time with Mr Clements.
However the orders I propose to make provide for regular face-to-face time as well as frequent and regular telephone, Facetime and/or Skype time to be spent.
This will allow X to maintain her relationship with her father in a regular fashion.
It is also without doubt that the distance between the parties’ homes will create some expense in that X, Ms Clements and Mr Clements will have to travel that distance in order to maintain their face-to-face relationship. The costs of that travel will have to be borne by each party.
Section 60CC(3) (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;
Mr and Ms Clements are both intelligent and tertiary-educated people. Both are perfectly capable of providing for X’s material and intellectual needs.
Both are also capable of catering for X’s emotional needs, although Mr V says that X sees her mother as the parent who most addresses those needs.
The major issue in relation to X’s emotional needs as she grows into adolescence will be whether her parents are able to put their interpersonal differences behind them and develop a parenting relationship which puts X first.
For X’s sake, it is to be hoped that with the pressure and stress of these proceedings being behind them, they will be able to do so.
Section 60CC(3) (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;
X is moving from childhood to early adolescence. She needs the love and appropriate care of both her parents, and in this phase of her life, particularly of her mother.
That is not to say that her relationship with her father is not important at this time in her life. Indeed, what she learns from that relationship in this period of her life will inform much of her development and should not be downplayed.
There are no particular cultural issues to be taken into account in this case.
Section 60CC(3) (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;
This consideration is not relevant in this case.
Section 60CC(3) (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both X’s parents have taken care of her all her life and obviously love her very much. They have done all that they can to provide her with a stable and secure home and all the material and educational advantages life can afford.
Again, the only dark cloud on X’s horizon is the possibility of ongoing conflict between her parents. If her parents truly have her best interests at heart, they will put aside their need for point-scoring and devote themselves to working together for her (and ultimately their own) emotional wellbeing.
Section 60CC(3) (j) any family violence involving the child or a member of the child's family;
I have already stated that there has been only one incident of physical altercation between the parties, that having occurred in the context of separation. There has been no evidence of any violence between the parties since that date.
Section 60CC(3) (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;
Ms Clements applied for an Intervention Order against Mr Clements at the time of separation but that application was resolved by Mr Clements proving an undertaking which has now expired. There is no evidence of any further application for Intervention Orders since that time.
Section 60CC(3) (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;
The orders I propose to make will provide X with stability and security, and they will allow her to maintain regular and frequent contact, both face-to-face and electronic, with Mr Clements.
Unless Mr Clements moves to (omitted) and the parties are unable to make decisions about X’s care in those circumstances, it is unlikely that further proceedings will be necessary.
Section 60CC(3) (m) any other fact or circumstance that the court thinks is relevant.
In all the evidence before me, there is really only one circumstance that distinguishes the parties’ cases.
The evidence about that circumstance is found in the expert evidence set out in paragraphs 58 to 81 above.
What is clear from that evidence is that Ms Clements has never been happy living in Melbourne, that she wishes to return to (omitted), and that her mental and emotional health have suffered significantly from her inability to do so.
Ms Clements is X’s primary carer and the evidence before me is that while she takes very good care of X, her ability to do so into the future may be impaired if she is not permitted to return to (omitted).

Conclusion

When I consider all of the above issues, facts and evidence, I find that it is in X’s best interests to live primarily with her mother, and that her mother ought to be permitted to return to (omitted) to live.
I will therefore make orders to that effect, while ensuring that X’s strong and close relationship with her father is maintained.
Neither party in these proceedings was a particularly impressive witness. Both impressed as wanting to “win” at all costs and each was absolutely unable to concede any point made by the other, however reasonable.
That does not augur well for X’s future and it is to be hoped that the parties will listen to what Mr V has to say about the effect of their continued conflict on her.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 1 May 2014

[2014] FCCA 824

1 May 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies