Colburn and Colburn
[2009] FMCAfam 1142
•9 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLBURN & COLBURN | [2009] FMCAfam 1142 |
| FAMILY LAW – Parenting orders – children aged six years and three months and three years and two months – children currently living with the mother and spending time with the father – mother seeking to relocate to Adelaide –consideration of “meaningful relationship” – best interests of the child – relocation after two years. |
| Family Law Act 1975 (Cth) – Part VII |
| Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 A v A Relocation Approach (2000) 26 Fam LR 382 U v U (2002) 211 CLR 238; (2002) FLC 93-112 D v SV (2003) 30 Fam LR 91; FLC 93-137 Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461 P v P [2006] FMCAfam 518 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 G & C [2006] FamCA 994 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR COLBURN |
| Respondent: | MS COLBURN |
| File Number: | NCC 835 of 2008 |
| Judgment of: | Coakes FM |
| Hearing dates: | 3, 4, 6 & 31 August & 10 & 23 September 2009 |
| Date of Last Submission: | 23 September 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 9 November 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Fox |
| Solicitors for the Applicant: | Fox Murrell Solicitors |
| Solicitor for the Respondent: | Mr Byrnes |
| Solicitors for the Respondent: | Byrnes & Cox Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Graham |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
The mother and the father have equal shared parental responsibility for their children [X] born in 2003 (“[X]”) and [Y] born in 2006 (“[Y]”) (“The children”).
The parents are to consult each other in relation to any long term issues concerning [X] and [Y] and are to make a genuine effort to come to a joint decision concerning their care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)The education of either of them (both current and future);
(b)The religious and cultural upbringing of either of them;
(c)The health of either of them;
(d)The names used by either of them;
(e)Changes to the living arrangements for either of them that make it significantly more difficult for either of them to spend time with a parent.
Each parent is to have sole responsibility for making decisions concerning the children’s day to day care, welfare and development whilst they or either of them are in his or her care respectively.
The children live with the mother other than at those times when, pursuant to these Orders, they or either of them are spending time with the father.
Until 30 September 2011 the mother is restrained from changing the children’s place of residence to a place outside the Municipal area of the [P] Council district unless with the prior written consent of the father or by Order of the Court, which restraint is conditional upon the father not relocating his place of residence to a place outside the Municipal area of the [P] Hastings Council district.
The children spend time with the father from the date of these Orders until 1 February 2010 as follows:
(a)On each alternate Monday from 3.30pm until 5.30pm commencing 28 September 2009;
(b)On each Tuesday and Wednesday from 3.30pm until 5.30pm;
(c)On each alternate weekend commencing Friday 2 October 2009 from 5.00pm Friday until 5.00pm Sunday with the child [Y] to be returned to the mother at 5.00pm on the Saturday and to spend time with her father again from 9.00am until 5.00pm on the Sunday;
(d)
For one week in the 2009/2010 Christmas school holidays after
4 January 2010 and to occur in the [P] area provided that the child [Y] only remains at the fathers home overnight for two (2) consecutive nights at the beginning and end of such week.
That between the period commencing 1 February 2010 and concluding on 24 September 2010 the children spend time with the father defined as but not limited to the following periods:
(a)Each alternate Monday from 3.30pm until 5.30pm commencing Monday 8 February 2010;
(b)On each Tuesday and Wednesday from 3.30pm until 5.30pm commencing 2 February 2010 until the week commencing Monday 3 May 2010 from which it is defined to be the first week of a two weekly cycle and in such first week from 3.30pm until 5.30pm on each of the Tuesday and the Wednesday and in the second week of the cycle commencing 10 May 2010 from 3.30pm on the Tuesday until 9.00am the following Wednesday and alternating in such fashion in subsequent weeks;
(c)On each alternate weekend from 5.00pm on the Friday until 5.00pm on the Sunday commencing Friday 5 February 2010;
(d)For one week during the April New South Wales gazetted school holidays as agreed between the parents but in the absence of agreement from Sunday 11 April 2010 until Sunday 18 April 2010 provided that the child [Y] only remain at the fathers home overnight for four (4) consecutive nights in that period as agreed between the mother and the father but in the absence of agreement for the last four (4) consecutive nights of such holiday period and otherwise between 9.00am and 5.00pm, and with such overnight stays during the gazetted school holidays in July and September/October to extend to five (5) nights in the July holiday period as agreed between the parents but in the absence of agreement for the last five nights and for seven (7) nights in the September school holiday period.
From 25 September 2010 and until the mother relocates the children’s place of residence to Adelaide the father spend time with the children defined as but not limited to:
(a)During school terms each alternate Monday from 3.30pm until 6.00pm commencing 18 October 2010:
(b)
During school terms each Wednesday from 3.30pm until 9.00am the following Thursday morning commencing Wednesday
13 October 2010;
(c)
During school terms on each alternate weekend from 5.00pm on the Friday until 9.00am on the Monday commencing Friday
22 October 2010;
(d)For one half of the New South Wales gazetted school holiday periods at the end of Terms 1, 2 and 3 as agreed between the parents and in the absence of agreement the second half in even numbered years and the first half in odd numbered years and commencing with the September/October school holidays.
(e)
During the 2010/2011 Christmas School holiday period the children are to spend two (2) weeks with the father either consecutively or non consecutively as the parents agree but in the absence of agreement non consecutively, with the first week to incorporate Christmas and the second week to occur after
18 January 2011.
That the time the father spends with the children as set out above is suspended during the following periods and, during those periods the mother is permitted to take the children to Adelaide (or such other destination as she chooses):
(a)From 20 December 2009 until 4 January 2010;
(b)From 2 April 2010 until 10 April 2010;
(c)For a further period of two (2) weeks prior to 31 December 2010 (other than during gazetted New South Wales school holidays) provided that the mother give the father twenty one (21) days prior written notice of such periods and with the mother having the option of having one block period of two (2) weeks or two separate periods each of one (1) week provided that the latter are separated by at least three (3) weeks;
(d)For a period of two (2) weeks commencing on 4 January 2011;
(e)For a period of two (2) weeks prior to the mother relocating to Adelaide, and not to coincide with gazetted New South Wales school holidays upon the condition that the mother give twenty one (21) days prior written notice to the father of such periods and with the mother having the option of one block period of two (2) weeks or two periods of one (1) week provided that the latter are separated by at least three (3) weeks;
Upon the mother relocating the children’s place of residence to Adelaide the father spend time with the children as agreed between the parents but in the absence of agreement as follows;
(a)For one (1) week of each of the shorter gazetted school holidays applicable in the State of South Australia, and in the absence of agreement the first week;
(b)For the gazetted school holidays applicable in the State of South Australia from 2011/2012 for two (2) weeks during such Christmas school holidays and in the absence of agreement between the parties then during January and similarly in each subsequent year in which the Christmas holidays commence in an odd numbered year, and for the Christmas school holidays commencing December 2012 and each alternate year thereafter between 23 December and 6 January in the relevant years;
(c)Subject to four (4) weeks prior notice in writing being given by the father to the mother, each second and fourth weekends during school terms in South Australia between 3.30pm on the Friday until 9.00am on the Monday Adelaide time;
Prior to the mother relocating the children’s place of residence to Adelaide the father is restrained from taking the children or either of them to Sydney on more than one (1) occasion in each period of two (2) calendar months.
Until the mother relocates the children’s place of residence to Adelaide implementation of these Orders, and subject to agreement by the parents to the contrary, is to be effected by the father collecting the children from the mother’s residence (or preschool or school as the case may be) at the commencement of the time which the father is to spend with the children or either of them and the mother is to collect the children from the father’s residence (or preschool or school as the case may be) at the conclusion of the time the father is to spend time with them or either of them.
Upon the mother relocating the children’s place of residence to Adelaide implementation of these Orders is to be effected by the father collecting the children from the mother’s residence (or preschool or school as the case may be) at the commencement of the time which the father is to spend with the children or either of them and with the father to return the children to the mother’s residence (or preschool or school as the case may be) at the conclusion of the father’s time with the children, and at the expense of the father, save that upon the mother being in engaged in full time paid employment, the mother is to pay one half of the cost of the children’s economy return airfares from Adelaide to the place where the father proposes spending time with the children, but only within New South Wales, to be paid to the father upon the father providing evidence in writing to the mother of the cost of the children’s return airfares with the mother to pay such amount to the father within twenty eight (28) days of receiving such evidence.
The parents enable the children or either of them to communicate with the other parent, at any reasonable time, by telephone, email or other medium, and that the parent with whom either child is from time to time do all acts and things and make all such arrangements as are required to enable such communication to take place unhindered.
In the absence of agreement to the contrary between the parents, to the extent that it is necessary for them to do so, the parents communicate in relation to the children or either of them and all practical issues arising out of the implementation of these Orders by way of text message, email or postal written communication or facsimile transmission.
Within fourteen (14) days of today the mother is to provide written notice to the father of all medical appointments in relation to [Y]’s various treatments and therapies and is to provide to the father within a reasonable time after receipt by her of any medical report or any written information concerning [Y]’s health and treatments.
The mother is to authorise any of [Y]’s treating medical practitioners to provide any information to the father which the father may seek either by telephone or otherwise.
The father is restrained from attending any medical appointments the mother may have arranged either for her or for her and [Y] to attend unless with the prior written agreement of the mother.
Each parent is to give the other parent at least seven (7) days prior written notice of any proposed change of that party’s residential address, telephone number, email address and mailing address and within the same period of time is to supply particulars of any such proposed change.
Each parent is to notify the other forthwith of any significant event occurring during that parents care of the children or either of them relating to the children’s health, welfare and development but in particular any admission to hospital, any accident or injury resulting in treatment from a Doctor or Ambulance Crew and any event or information in relation to [Y]’s health relating to her day to day care of which each parent should have knowledge in caring for her.
Each of the parents do all acts and things necessary to authorise and require the Principal of any school attended by either of the children to provide to each of the parents, at the expense of that parent any document issued by the school relating to that child including but not limited to school reports, newsletters, invitations to school educational or sporting or cultural events and any other information.
If either of the parents seeks advice in relation to either of the children from any school, health or welfare professional or other professional attended by either child, that parent is to notify the other parent of any pending appointment and is to provide to the other parent copies of any letters or reports subsequently received consequent to such appointment.
Each of the parents is entitled to spend time and communicate with either child on the occasion of that child’s birthday and, in the absence of agreement, any inconsistent provisions of these Orders is suspended to enable the parent with whom the child is not living at the commencement of the day on which the birthday falls to spend time with both children from after school or 4.00pm in school holidays as the case may be, until 6.30pm the same day.
Each of the parents is entitled to spend time and communicate with the children on the occasion of that parents birthday, and in the absence of agreement , any inconsistent provisions of these Orders is suspended to enable the parent with whom the child is not living at the commencement of the day on which the birthday falls, to spend time with both children on such birthday from after school or 4.00pm in school holidays as the case may be, until 6.30pm the same day.
Any otherwise inconsistent provision in these Orders is suspended on the occasions of the Mother’s Day and Father’s Day weekends each year such that the children spend time with the father from 9.00am on Saturday until 6.00pm on Sunday of the Father’s Day weekend each year and that the children live with the mother between 9.00am on the Saturday and 6.00pm on the Sunday of the Mother’s Day weekend in each year.
Until such time as [Y]’s grommets are removed both parties shall ensure that her head shall not be immersed in water during periods that [Y] is in their care and that if she is around water she should, at all times, be wearing a swimming cap and have ear putty.
During the time the father spends with the children he shall ensure that he takes [X] to Ballet Eisteddfod practice, the dates of which include (but are not limited to) the weekends of 3-4 October, 28-29 November and 11-12 December 2009.
In the event that the father is unable to spend time with the children during any of the periods referred to above he shall give the mother twenty one (21) days prior notice of his unavailability or, if the circumstances which cause him to be unavailable occur within that time he shall give the mother notice as soon as is reasonably practicable after he becomes aware of the event which causes his unavailability.
Pursuant to section 65L of the Family Law Act 1975 (Cth) compliance with these parenting orders, as far as practicable, is to be supervised by a Family Consultant attached to the Newcastle Registry of the Family Court and such Family Consultant is to give both parents such assistance as is reasonably requested by either of them in relation to compliance with and the carrying out of the particular parenting Order.
IT IS NOTED that publication of this judgment under the pseudonym Colburn & Colburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 835 of 2008
| MR COLBURN |
Applicant
And
| MS COLBURN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of two young children [X] born [in] 2003 now six years and three months of age and [Y] born [in] 2006 now three years and two months of age. The children live with their mother in [P] and have been spending regular time with the father who also lives in [P].
For some time, the mother has expressed a wish to take both children to Adelaide to live where she would have the support of her family. The father is opposed to this and has asked that the mother remain living with the children in [P].
[X] is in kindergarten at [S] School in [P] and [Y] is not yet of school age.
The matter was heard in [W] on 3 and 4 August when at the close of the parties evidence and that of their witnesses and with the consent of the parents’ lawyers and Counsel for the Independent Children’s Lawyer I gave an indication of what I was thinking would be an appropriate resolution. This was against a background of the mother immediately prior to the hearing swearing an affidavit and subsequently giving sworn evidence at the hearing that she proposed to move to Adelaide in any event and would leave the children in [P] if she had to. By inference, it was clear the mother proposed to then leave the children in the care of the father, if they were not able to move to Adelaide with her.
The parents were unable to agree upon a final resolution in the following days and the hearing resumed on 31 August in Newcastle when evidence was given by Ms Lojszczyk, the author of the family reports.
The parents continued to disagree as to a resolution and the hearing resumed on 10 September with submissions from the parent’s lawyers and Counsel for the Independent Children’s Lawyer.
I made final orders on 23 September and was unable to deliver reasons for judgment that day.
The hearing as to alteration of property interests between the parents will take place early next year.
Background Facts
The parties commenced cohabitation in either late 1999 or mid 2000, were married [in] 2001 in Sydney and after a period in Europe returned to Australia in August 2001 to live in Sydney. Following the birth of [X] in 2003, the family moved to [P] from Sydney and separated on 2 February 2008.
The father is forty years of age and is employed by a family company in [P] engaged essentially in redevelopment and construction of residential homes and development of land for housing purposes. He performs a number of tasks in this role.
The father has not repartnered but has a girlfriend, Ms E living in Sydney with whom he has a close relationship, and whom he has seen broadly every second weekend in Sydney from the time their relationship commenced in about March or April 2008.
Ms E has two daughters, [E] aged nine years and [S] aged five years who live with her and she works full time in human resources with a major financial institution.
The father gave evidence that while Ms E has visited [P] occasionally she would not consider moving to [P].
The mother is thirty eight years of age and is occupied with the full time care of the children.
[Y] has a troubled history so far as concerns her health and has been the subject of many visits to paediatricians and specialists to identify the cause and to assist in her development.
She has suffered from food intolerance and some delay with her gross motor development and at the age of two years and one month was exhibiting clear developmental delays, both in gross motor and speech development[1].
[1] Reports of Dr M Consultant and Paediatrician 8 October 2008
The mother relies upon a number of expert support services to provide assistance with [Y] including the early intervention service, which includes speech pathology, physiotherapy, home visits, special education support and a playgroup.
It is common ground on the evidence before me [Y] has suffered and continues to suffer from some sleep and behavioural difficulties arising from a very marked separation anxiety which is a common developmental phase in most children but quite prolonged in [Y]. Dr M describes the treatment as “gradual desensitisation which is easier said than done”. Dr M describes [Y] as at times impulsive but overall coping well with her early intervention program[2]. Dr M is due to see her again in February 2010.
[2] Dr M’s report of 10 August 2009
The mother told Ms Lojszczyk, the family report[3] writer that while [Y]’s diagnosis and prognosis is not yet certain, Dr M believed that [Y] would function socially at a reasonable level but would need support to live independently and may need a special needs teacher through preschool and school.
[3] Paragraph 21 of the Family Report 23 April 2009
[Y] has also been a patient of Dr S, a clinical psychologist since February 2009, Dr M having referred [Y] to her in relation to marked separation anxiety resulting in demands for ongoing breast feeding.
Dr S gives evidence that there was considerable progress with delaying her breastfeeding until the weekend of 3 April 2009 when [Y] and her sister [X] spent some time overnight with their father in Sydney, and the mother reported that [Y]’s behaviour regressed following that weekend and took a long time to settle.
The mother has not repartnered and on evidence before me does not have a boyfriend.
On 13 October 2008 in the Federal Magistrates Court at Newcastle orders were made by the Court, pending further order, as follows:
1)The father spend time with [X] and [Y] as follows:
a) Each Tuesday and Wednesday from 3.30pm until 5.30pm; and
b) Each alternate Monday from 9.00am until 5.00pm commencing 27 October 2008 (ceasing for [X] when she starts school)
2)The father spend time with [X] each alternate weekend commencing Saturday 1 November 2008 from 9.00am Saturday until 6.00pm Sunday;
3)The father spend time with [Y] each alternate Saturday and Sunday from 9.00am until 5.00pm each day commencing 1 November 2008.
4)The father spend time with [X] and [Y] from 9.00am until 1.00pm on 25 December 2008.
5)The mother may upon giving the father fourteen day prior notice in writing travel with [X] and [Y] to South Australia in December 2008 for fourteen days prior to Christmas and for fourteen days in January 2009. During the period of travel, Orders 1, 2, 3 are suspended.
There is a notation in that Orders 1(a), 2, 3, 4 and 5 above were made by consent, after the Court determined that the matter would proceed on an interim basis only. Order 1(b) was not made by consent.
The respective applications
The respective applications at the time the hearing commenced were to the effect that the mother wanted to relocate with the children to Adelaide with the father to spend time, essentially during school holidays with the children but limited to day time with [Y] until she is older and with the father to see the children in Adelaide if he was able to travel there but otherwise in [P] with the children to fly as they become older.
The mother’s secondary proposal was that if she had to remain in [P] then the children spend time with their father, essentially at weekends and continuing with the present three afternoons a week.
The father, at the time of the hearing was opposed to the mother relocating the children to Adelaide and sought continuing time with the children in [P] two nights each week and alternate weekends and one week of holidays.
The hearing
It was against this background, and when the mother confirmed that she was going to Adelaide in any event, the father was faced suddenly with the prospect of becoming a residential parent if the children remained in [P] pursuant to his opposition to them moving.
During his cross examination, the father conceded that he would not be able to look after [Y] to meet her special needs and that he is not equipped to look after her. The father thought that the mother had overstated [Y]’s needs.
To his credit, the father conceded that there was no doubt in his mind that the mother was devoted to the children and cares for them and loves them.
In relation to the mother moving to Adelaide and the children remaining in [P] he said:
“I did not think she would leave without the children and abandon them. I did not think it’s the right thing to do. I agree she is their primary carer”.
When asked as to how he would care for the children if the mother moved to Adelaide and left them with him it was clear he had not given much thought as to how he would manage the children and care for them. He said that he would severely curtail his work, that he would look to his family for assistance and that he would do the best he could to meet [Y]’s needs, acknowledging that he has not been involved with several of the support services to whom the mother takes [Y].
I was left with the distinct impression from the father’s evidence that he expected the mother to remain in [P], to be the primary carer for the children and to do all that was required to meet [Y]’s special needs. He did not contemplate and had not considered being the primary residential parent.
The applications changed considerably following the two days of hearing in early August and there was some possibility the matter would resolve on a final basis, but that did not eventuate.
By the time of the resumed hearing on 31 August and prior to
Ms Lojszczyk giving further evidence, there was agreement as to a number of significant matters including equal shared parental responsibility, the mother being enabled to move to Adelaide with the children, but a dispute as to whether this should be in early August 2011 or mid December 2011 and an agreement as to a number of practical parenting orders designed to enable and ensure both parents were actively involved in matters concerning the children’s health, their upbringing and education. There was also agreement as to time the father would spend with the children once the father had moved to Adelaide.
The matters in dispute revolved around the amount of time the father should spend with both children before the mother moved to Adelaide, particularly [Y], and implementation.
The father’s draft minutes of proposed orders propose that implementation, before the mother moves to Adelaide, and whilst there was a current apprehended violence order in place, be at a Coles Supermarket at [omitted] but otherwise at their respective homes unless school was appropriate[4].
[4] Exhibit F6
The mother’s draft minutes of proposed orders[5] were silent as to implementation whilst the mother remains in [P].
[5] Exhibit M2
It was perhaps unfortunate that prior to the resumed hearing on
31 August, the mother had obtained an interim apprehended domestic violence order on 28 August 2009 listed for hearing at [P] on
29 January 2010.
The interim apprehended violence order, in which the mother is the protected person requires that the father, in the usual terms, not assault, molest, harass, threaten or otherwise interfere with the mother, and the father must not engage in any other conduct that intimidates the mother and must not stalk her and is restrained from approaching, contacting or telephoning her by any means whatsoever except through her legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act. That order was made when the father was not at Court.
By the adjourned date of 10 September, Counsel for the Independent Children’s Lawyer had filed a minute of proposed order largely adopting the recommendations of Ms Lojszczyk[6].
[6] Exhibit ICL 1
The evidence
I read the agreed list of affidavits upon which each of the parents relied including that of the paternal grandparents and the maternal grandmother.
I also had the benefit of two family reports, both by Ms Lojszczyk, the first released in September 2008 and the second in April 2009.
There were a number of exhibits.
I also had the benefit of listening to and observing the parents and their witnesses required to give evidence both in chief and in cross examination.
I also had the benefit of the evidence of Ms Lojszczyk who was cross examined by the lawyers for both parents and by Counsel for the Independent Children’s Lawyer. Ultimately, I received much assistance from Ms Lojszczyk and the children’s lawyer.
The issues
It seemed to me that the issues at the resumed hearing, given then there was agreement that the mother would remain in [P] with the children for about two years and then move to Adelaide with them were these:
1)What would be the appropriate arrangements for [X] and [Y] to spend time with their father including frequency, duration and implementation.
2)To what extent should such arrangements be different for [Y] and the amount of consideration and weight to be given to the medical evidence concerning her developmental delays, difficult behaviour and severe sleep disturbance.
The relevant law
I have regard to Part VII of the Family Law Act and in particular the amendments which came into being following the Family Law Amendment (Shared Parental Responsibility) Act2006. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two primary considerations. Firstly:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[7].
[7] Subsection 65 DAA Family Law Act1975
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation upon such case law. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[8].
[8] Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 at para 40
In A v A Relocation Approach (2000)[9], the Full Court of the Family Court of Australia summarised the guidelines to be applied in the determination of a parenting case involving a proposal to relocate the residence of a child. That summary, in effect, is this.
a.the welfare or best interests of the child as the case may be remains the paramount consideration but is not the sole consideration;
b.a Court cannot require the applicant for the child's relocation to demonstrate compelling reasons for the relocation;
c.the Court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into a discrete issue, namely a primary issue, and a further or separate issue as to whether the relocation should be permitted;
d.neither party bears an onus to establish that a proposed change to an existing situation or the continuation of an existing situation will best promote the best interests of a child;
e.a parent's rights as to freedom of movement are not to be ignored.
[9] A v A Relocation Approach (2000) 26 Fam LR 382
The Full Court said later in the case of A v A[10] that it was suggested that three practical steps should be followed by a Court in considering a case which involved relocation.
[10] A v A Relocation Approach (2000) 26 Fam LR 382
I also have regard to the High Court decision in U v U (2002)[11] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[11] U v U (2002) 211 CLR 238; (2002) FLC 93-112
In D v SV (2003)[12], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[12]D v SV (2003) 30 Fam LR 91 at 106; FLC 93-137 at 78290
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of amending legislation upon relocation. It is reported as Taylor v Barker[13]. In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[13]Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
In P v P[14], Brown FM gave very careful consideration to the word "meaningful" in the context of s.60CC(2)(a) and said as follows:
“256. In the context of s.60CC(2)(a) the use of the word "meaningful" by the Legislature is interesting. The ordinary definition of "meaning" and "meaningful" when it is attached to an idea or some object is denoting of the significance or importance of that idea or object. It seems clear that the Court is only to consider whether a relationship is meaningful to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the Legislature intends the Court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered meaningful in the context of a parenting order is provided by s.65DAA. The emphasis is on time, but not merely on the extent of that time but rather on its quality and the manner of its utilisation with the child or children concerned. In this context the Court is to consider the parent concerned spending time that falls on weekends, holidays, week days and perhaps most importantly time that allows that parent to be involved in a child's daily routine and occasions of particular significance for both the parent and child.
258. The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care which flows from them being exposed to their parents in a variety of settings. These settings include fun activities on holidays and weekends, essentially interacting with their parents in a relaxed setting as well as the day to day reality of the child's life such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training, essentially spending time with parents in more mundane situations. In this way the child is likely to have a more balanced and richer relationship with the parents concerned.”
[14] P v P [2006] FMCAfam 518 at para.256 to 258
I propose to adopt this interpretation of “meaningful”.
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[15].
[15] Goode & Goode [2006] FamCA 1346; (2006 FLC 93-286; (2007) 36 Fam LR 422
I have considered also the decision in Mazorski and Albright[16], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object 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 quantities one. Quantities concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[16] Mazorski & Albright (2007) 37 Fam LR 518; at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
Her Honour Justice Bennett discussed the terminology in G & C[17] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[17] G & C [2006] FamCA 994
In the recent full Court decision of McCall & Clark[18], their Honours Bryant, Faults and Boland concluded that there are three possible interpretations of s60CC(2)(a) at paragraph 118:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of the evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ("the present relationship approach"); (b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ("the presumption approach"); and (c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (the prospective approach)”.
[18] McCall & Clark [2009] FamCAFC 92
The Full Court concluded that the preferred interpretation of benefit to a child of a meaningful relationship in s.60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant[19].
[19] Paragraph 119
The Full Court rejected the interpretation in sub paragraph (b) finding that if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[20].
[20] Paragraph 120
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[21]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[21] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The family reports
There were two family reports, both prepared by Ms Lojszczyk.
The first was released on 19 September 2008 following interviews of the parents and the paternal grandparents and observations of the children with the father on 1 September 2008.
In her recommendations, Ms Lojszczyk observed that if the Court finds that [Y] has significant developmental issues then it is recommended that the children live with the mother in Adelaide so she can access the high level of support required but that it was important that the children spend time with their father as frequently as possible.
Ms Lojszczyk said that if the Court found that [Y] did not have significant developmental issues and that the mother had exaggerated [Y]’s condition and exposed her to unnecessary medical and allied health interventions then it was recommended the children not be permitted to relocate to Adelaide and the mother commence psychiatric treatment. If that was found to be the case, the father should spend progressively increasing periods of time with the children culminating in alternate weekends and some time with the children in the other week.
In making such recommendations, Ms Lojszczyk noted that she was limited by there being no subpoenaed documents from Homestart, the Paediatrician or the health services treating [Y][22].
[22] Paragraph 51 of the first Family Report
Ms Lojszczyk noted it was of concern that the parties level of communication was so poor, which was of particular concern given the significant issues about [Y]. Ms Lojszczyk found it to be of concern that the father and his family were unaware and did not accept the serious nature of [Y]’s problems[23].
[23] Paragraph 53 of the first Family Report
The second family report was published on 23 April 2009 following interviews with the paternal grandparents on 2 March 2009 and with the parents and the children on 3 April 2009 and the consideration of a number of subpoenaed documents including medical reports relating to [Y].
Ms Lojszczyk recommended that the parties have shared parental responsibility and that the mother not be allowed to relocate to Adelaide as this would mean that the children’s current good relationship with their father would be greatly affected.
Ms Lojszczyk recommended that the father spend time every alternate weekend building up from school Friday to school Monday and at least two afternoons each week with the children. She recommended that as the children become older the afternoon visits could stop and an overnight in the other week could be added. The alternate weekends could increase from Thursday to Monday. Ms Lojszczyk recommended telephone communication on a regular basis with the parent the children are not living with at that time.
Ms Lojszczyk recommended in very clear terms that the parents must cease arguing in front of the children and again suggested a referral to a community based agency to assist the parents to develop more appropriate ways of communicating.
The children’s relationship with each of the parents
I find on the whole of the evidence before me that the most reliable evidence as to the children’s relationship with each of the parents is found in the two family reports, but more significantly, the second report.
The evidence establishes that both children have a close and loving relationship with their mother although [X] is described by Ms Lojszczyk as having a close, but at times anxious attachment to her mother[24].
[24] Paragraph 57 of the second Family Report
I am satisfied on the evidence that [Y] has a developing relationship with her father and is loved by him. Ms Lojszczyk observed that [Y] transitioned easily to her father and played happily with him[25].
[25] Paragraph 41 of the second Family Report
I am satisfied on the evidence, as Ms Lojszczyk explains very clearly, that [X] is finding the conflict between her parents, which has been occurring in her presence, very distressing. Ms Lojszczyk makes the observation that [X] appears to feel she needs to take a side, and it appears she sees both parents at fault but particularly her father.
Ms Lojszczyk concludes this is making her reluctant to spend time with him, on occasions.
[Y] was observed by Ms Lojszczyk to relate well to her father and was obviously comfortable in his presence[26].
[26] Paragraph 49 of the second Family Report
I am satisfied on the evidence before me that the children’s primary relationship is with their mother and that she is and has been their primary carer since separation and that she is very well aware of [Y]’s special needs and able to provide for them, both in the sense of her day to day needs but also ensuring the appropriate medical attention and other support services she needs, and which she has put into place in [P].
I note from Ms Lojszczyk’s observations, and this was borne out by the manner in which the mother gave her oral evidence, that she continues to present as anxious and stressed by the care of [Y] but is now benefiting from counselling support and early intervention services.
The parent’s relationship with each other
The evidence establishes that the relationship between the parents is very poor. There is a current interim apprehended violence order as referred to earlier in these reasons for judgment.
The current apprehended violence order flows from an incident which occurred on Tuesday 19 May 2009 at about 6.00pm when the father returned both children to the mother at her home. The mother asserts that the father threw the children’s bags at her hitting her and knocking her back. The mother perceived the father to be angry and glaring at her.
The father acknowledges that one of the bags hit the mother on the lower leg when he tossed them up onto the deck of the mother’s home but asserts it was entirely accidental.
I am of the opinion that this incident highlights the sensitive and troubled nature of the relationship between the parents. On the one hand it could be construed as an innocent act, not intended to cause injury but perhaps a little careless, but on the other hand, a deliberate act designed to annoy. The difficulty is that neither parent was able to put the matter into an appropriate perspective and the mother made a complaint to the police and the apprehended violence order issued.
On 28 August 2009 an interim apprehended violence order was made for the protection of the mother and the matter awaits a final hearing on 29 January 2010. The mother asserts the father was served with a copy of the interim apprehended violence order on or about 21 May 2009.
Another incident occurred between the parents on Friday 29 May 2009 when the mother went to a local hotel with some friends for a drink and to socialise.
On that evening, the mother asserts that whilst she was aware the father was also at the hotel, and she hoped that he had not seen her, the father pointed aggressively at her talking to his friends in an animated manner then walked up to her to a distance of about one metre and took a photograph of her and her friend on his mobile phone. The mother asserts she was upset and embarrassed.
The father asserts that while seeing the mother at the hotel on this occasion, and despite having requested on many previous occasions overnight time with [Y], he was frustrated when he had not been asked to look after the children on that evening. He says it was in that context that he decided to take the photograph but conceded that it was a decision, taken at a time of heightened emotion on his part, which he regretted almost as soon as he had taken the photograph. He says it was taken at a distance of some several metres and that the telephone was subsequently destroyed in a motor vehicle accident in early June and that consequently, the photograph was lost.
Once again, this is illustrative of the tension and continuing lack of trust and the ability on behalf of both parents from time to time to behave in a manner not at all conducive to improving their relationship.
The mother sets out a number of reasons in her affidavit sworn 17 July 2009 as to why this, and some subsequent matters amounted to the last straw for her resulting in her decision to leave [P] whatever the outcome of the Court proceedings.
Discussion
I found this to be an extraordinarily difficult case. Relocation cases come before this Court every day and in my view are the most difficult cases the Court is required to consider, especially when the competing claims involve young children. This case was made more difficult by the age of the children and [Y]’s particular needs.
I could not be satisfied that the father is an appropriate residential full time parent and for a number of reasons.
I am not satisfied on his evidence, having observed him in the witness box and having listened to him for over a day that he is sufficiently committed to being a full time residential parent. That is not his primary position. I am not satisfied that he has given a lot of thought to the consequences of that occurring if in fact the mother had moved to Adelaide and then he was left with the children if they did not go with her.
The father has work commitments and it is very clear from his evidence and that of his father that he is expected to work. I was also left with the distinct impression that the father wants to work and that he probably enjoys what he does and is part of an enterprise which seems to me on the evidence, requires him to continue to work for those arms of that enterprise in the [P] district.
I could not be satisfied that the father has no intention of moving to Sydney. I sense that his relationship with Ms E is subject to some limitations which she has imposed. Whilst he would prefer those limitations were not in place, nevertheless that is how it is and there is no intention on her part to move to [P]. I am satisfied the father would like that relationship to continue and that it is important to him but it has a number of difficulties, particularly with regard to geographic location and the distance and time involved in travel and that for the greater part, it takes place in Sydney.
So far as concerns the mother, I am satisfied that from the time of separation until the present time, her ability to parent these children, not withstanding the difficulties about which she gave evidence, have not precluded her from being a very effective primary caregiver for both children and has met [Y]’s needs particularly in so far as those special needs exist. It does not matter whether they are called special needs or needs over and above her sister in so far as her delayed development is concerned.
It seemed to me, especially observing the manner in which the mother gave her evidence, that she had probably reached the end of her tether, to use a colloquial expression, as far as remaining in [P] was concerned. This gave rise to her avowed intent, on one interpretation, to effectively abandon her children as it was put to her if in fact she decided to leave [P] and move to Adelaide.
Against that, I am satisfied having observed her mother give evidence that the maternal grandmother is a great source of comfort to her and that she is able to visit [P] from time to time and does so, and for fairly significant periods as far as the mother is concerned. Equally, I am satisfied that the maternal grandmother is available to her by telephone very frequently to provide the support she needs.
At the conclusion of the evidence of the first two days of hearing, I was not persuaded that the mother had really thought about the consequences, if the children were to stay in [P] without her, actually leaving them and moving to Adelaide without them. It was clear to me on her evidence alone that the loss for her would be enormous and that she would not be able to consider the consequences and make an objective assessment of the enormity of such decision until she actually moved without them.
The evidence establishes that [Y] has made particularly significant advances with the services she has received in the [P] district in the last twelve or eighteen months or so. I conclude it would be detrimental to her to disturb the provision and the availability of those services.
There was very limited evidence before me of the availability of similar services in Adelaide and it was less than clear whether the mother actually proposed to live in Adelaide.
The evidence of Ms Lojszczyk in the family reports was to the effect that the children will benefit from a relationship with their father which requires them to see him on a frequent basis.
It seemed to me, and I also find on the evidence, that for the father’s relationship to develop with the children he needs to spend, in their best interests, frequent time with them.
At the conclusion of the second day of the hearing I indicated to the parties and their lawyers it may be appropriate to enable the children to continue living with the mother in [P] but restrain her from changing their place of residence for a period of about two years, but no more than that.
Ms Lojszczyk gave evidence on the second day of the hearing in [W] whilst being cross examined by Mr Graham of the mother’s proposed to move to Adelaide, probably without the children, and said that the likely effect upon the children would be extremely distressing for them to be separated from their mother at that age especially given [Y]’s dependence upon her and her developmental delay and [X]’s somewhat anxious attachment to her. Ms Lojszczyk said that for the children to be separated from their mother would be quite traumatic and that she would have some concerns about the father’s parenting capacity to care for the children if they were living with him full time.
At the resumed hearing on 31 August 2009 Ms Lojszczyk gave evidence having read the proposals then being put to the Court by both parents that it would be a good outcome for the children if the mother remained living in [P] for two years before being enabled to move to Adelaide. Ms Lojszczyk said that stability was important for both children and that it would be appropriate for them to continue the present pattern of spending time with the father, or something very similar to that.
Ms Lojszczyk was crossed examined at some length by Mr Graham, Counsel for the Independent Children’s Lawyer which resulted ultimately in draft minutes of proposed orders by the Independent Children’s Lawyer.[27]
[27] Exhibit ICL 1
I am satisfied having heard Ms Lojszczyk’s detailed evidenced on
31 August 2009 as to the parents two competing proposals, that she gave very careful consideration to them and that her evidence and suggestions are reflected in the draft minutes prepared by Mr Graham for the Independent Children’s Lawyer.
At the resumed hearing on 10 September 2009 I listened very carefully to each of the competing proposals as to arrangements before the children move to Adelaide.
Application of s.60CC
As to s.60CC I make the following observations and findings:
(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
There is no doubt on the evidence before me that both children will benefit from continuing to live primarily with their mother and spending time with their father and provided that both parents step back from their present conflict with each other, avoid arguing in front of the children, and that the father remain sensitive to his time with the children taking priority over other activities. It is clear on the evidence before me that the children were very disappointed when the father did not spend time with them, particularly at Christmas 2008 and [Y]’s birthday in July of this year.
I am hopeful that the father is now aware that young children are particularly vulnerable to disappointment when a non residential father does not keep his bargain as to parenting with the consequent disappointment for them but equally significantly, the feeling of resentment and possibly anger which can be generated in the residential parent.
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied on the evidence before me that whilst neither parent would consciously expose either child to risks of this nature, such is the nature of the parent’s relationship with each other that they do expose the children to their arguments which amounts to psychological harm arising from family violence.
It is essential that the parents avoid such conflict as it will continue to cause the children harm in the manner in which Ms Lojszczyk has highlighted.
Additional considerations are:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Neither child is of an age to either form a view or express a view to which I could attach any weight. The family report as to the observations of their behaviour with each parent is indicative of their likely wishes, and I take that into account.
b) the nature of the relationship of the child with:
i) each of the child's parents; and
I have referred to this to some extent earlier in these short reasons for judgment and have nothing to add.
ii) other persons (including any grandparent or other relative of the child);
The evidence establishes that both children have a good relationship with the paternal grandparents and the maternal grandmother.
c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
On one interpretation, the mother could be criticised for her primary wish to relocate the children to Adelaide which would have resulted in the father and his family having extremely limited time with them and which would greatly affect the quality of the relationship with their father.
Ms Lojszczyk commented that [Y], in particular, had established a good relationship with her father due to the frequent time she has had with him over the last six months.
Against that, the father’s initial proposal was that the mother would be required to remain living in [P] and for the children to spend equal time with each parent.
To that extent, each parent could be criticised for their initial proposals but having adopted the reality of the mother remaining in [P] for a period of two years, I am satisfied that each of the parents are both willing and able to ensure the children spend time with each parent in accordance with the orders made on 23 September 2009.
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
This consideration is central to the present dispute between the parents although is ameliorated by the mother’s willingness to remain in [P] for two years. I am satisfied on the evidence that provided the father continues to see the children in accordance with the orders of September 2009, then his relationship with each of them will be well established by the time the mother moves to Adelaide toward the end of 2011 such that that significant change, when it occurs, will not affect adversely the relationship of either of them with their father provided that he continues to see them and spend time with them and communicate with them in accordance with those orders.
ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no other relevant child to be taken into account.
The children will be able to continue to enjoy their present relationship with the paternal grandparents, especially the paternal grandmother whilst they remain living in [P] and the more limited relationship with the maternal grandmother but upon moving to Adelaide will be able to increase the amount of time they spend with the maternal grandmother but enjoy less time with the paternal grandparents. It is to be hoped that the paternal grandparents will ensure they spend time with the children when they are spending time with their father after the end of 2011.
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;
This will not present any practical difficulty prior to the mother moving to Adelaide with the children, and upon the mother moving to Adelaide I am satisfied on the balance of probabilities that the father will be able to meet the cost of transporting the children.
Whilst the father seeks an order from the end of 2011 the mother pay, in effect, one half of the costs of the children travelling between Adelaide and [P] or Sydney and return, I am satisfied on the present financial evidence of the parents that the mother does not have the capacity to meet that cost irrespective of what it may be. It is however appropriate that she make a contribution toward the cost and pay one half of the children’s economy airfares once she is in full time paid employment, but I do not propose to make an Order to that effect as it is not known when that will occur.
f) the capacity of:
i) each of the child's parents;
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;
I am satisfied on the evidence before me and for reasons I have given that the mother is able to provide for the day to day physical needs of the children and each of their emotional and intellectual needs subject to ensuring that [X]’s attachment to her does not continue to be one of anxiety and that the mother ensures that [X] does not feel the need to be responsible for [Y], especially when they are both spending time with their father.
To this extent, the father must also bear some responsibility for ensuring that [X] is relieved from any such anxiety.
I am equally satisfied on the evidence before me that the father is able to provide for each of the children’s day to day physical needs and their emotional and intellectual needs, provided, for reasons I have given, that he ensures he spends time with them and is committed to developing the relationship, and, for example, does not leave the children at short notice to be cared for by a relative virtually unknown to them, as he did in Sydney in April this year when he spent overnight time with [Y] for the first time but left her in the care, with [X], for a number of hours of his sister.
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 a young girl who on the evidence before me is well settled into her school and is described by her school principal as a serious child and who is finding the conflict between her parents very distressing. At times she is reluctant to spend time with her father, is apparently mature for her age and will benefit significantly from the cessation of the conflict between her parents.
[Y] has particular needs to which I have referred earlier in these reason which are being met by the mother and which the father will be able to assist consequent upon the orders made on 23 September 2009.
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;
On the evidence before me this has no application
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have referred earlier in these reasons for judgment to the attitude of both parents and to their lack of insight as to the consequences of their behaviour and the consequent effect upon both children, particularly for [X].
To this extent, each of their reactions to each other has reflected poorly upon their joint responsibilities as parents and has impeded their ability to make significant progress in improving their communication with each other which clearly is essential for them both to be able to parent effectively and upon which Ms Lojszczyk places a lot of emphasis.
j) any family violence involving the child or a member of the child's family;
I have referred to this earlier in these reasons for judgment and no further observation or finding is necessary.
k) any family violence order that applies to the child or a member of the child's family, if:
i) the order is a final order; or
ii) the making of the order was contested by a person;
On the evidence before me, there is no final current family violence order in force but there is the interim order and the provisions of that order.
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;
I am hopeful that the Orders are least likely to lead to the institution of further proceedings even though this case has been before the Court on a number of occasions.
m) any other fact or circumstance that the court thinks is relevant.
This subsection has no application on the evidence before me.
Section 61DA
When making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility subject to the presumption not applying or being rebutted under circumstances provided in that section. In this case both parents proposed equal shared parental responsibility. Whilst that by itself is not a reason to make such an order, and I was hesitant to make such an order given the very poor level of communication and lack of trust, I took some comfort in some indications of a shift in the parents approach to their present dispute and find therefore it is appropriate to make such an order.
My reasoning is that each parent now recognises the need to put aside any continuing personal issues about the long term interests of both their children, particularly in relation to [Y]’s continuing medical and other support, and with the orders of 23 September 2009 providing a sharing of information and joint consultation, I am confident that the parents will discuss the major issues identified in the orders and explore the various issues with a view to reaching consensus.
I was left with the distinct impression that the mother wanted the father to be more actively involved in the decision making process and that the father felt precluded and that he was not sufficiently informed. The orders now in place should prevent these difficulties reoccurring.
To assist the parents, I have set out the matters about which they are required to consult with each other so there is no doubt about their reciprocal obligations.
Whilst the litigation between the parents has not come to an end, with their property proceedings yet to be heard, I am hopeful with the cessation of the litigation concerning the children that the parents will be able to focus on [X]’s and [Y]’s future needs and be aware of the very real need for them to be able to communicate more successfully. Failure to do so will cause their children unnecessary distress, and it is for the parents to assume the responsibility jointly for this occurring.
Section 65DAA
Consequent upon making an order for equal shared parental responsibility, the Court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances. Section 65DAA(5) provides that in determining whether it is reasonably practical for a child to spend equal time or substantial and significant time with each of the child's parents the Court must have regard to (a) how far apart the parents live from each other; (b) the parents' current and future capacity to implement and arrange for the child spending time or substantial and significant time with each of the parents; and (c) the parents' current and future capacity to communicate with each other and to resolve difficulties that may arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on a child; and (e) such other matters as the Court considers relevant.
In the first instance whilst the mother remains in [P], this is not a matter where, on the evidence before me, it was appropriate or in the children’s best interests for the children to spend equal time with each parent. It was however appropriate to consider substantial and significant time and that essentially became the father’s application.
Conclusion
I conclude therefore that it is in the interests of both children to live predominately with their mother and spend substantial and significant time with their father prior to the mother moving to Adelaide.
Relocation – advantages and disadvantages
It is unnecessary for me to refer to these in detail in these reasons. They are appropriately and fully set out in the two family reports and no further comment is necessary.
Final conclusion
When I compare the evidence of Ms Lojszczyk, which I accept was embodied in the proposal of the Independent Children’s Lawyer, and the proposals put by the parties, I concluded that the proposal of the Independent Children’s Lawyer met the children’s best interests.
As to implementation, and whilst the father would have preferred a public venue during the currency of the interim apprehended violence order, I conclude that it is preferable, given the very close proximity of the parents’ places of residence that implementation takes place either at school or between the parents’ homes. It would otherwise be an unnecessary burden, in my view, upon both parents to travel to Coles supermarket or indeed any other place. Unless the weather is particularly inclement the children can walk between the present homes almost within the sight of each parent. I could not be confident that Coles supermarket or any other public place would give the father the comfort that he thought would flow by utilising such a place. The parents could behave poorly toward each other wherever they were and that seemed to have not been an impediment in the past.
For these reasons, I made the orders on 23 September 2009.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: J Manners
Date: 6 November 2009
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