Collins and Lawrence
[2011] FMCAfam 29
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & LAWRENCE | [2011] FMCAfam 29 |
| FAMILY LAW – Children – final arrangements for parenting of children aged 7 & 5 – relocation – presumption of equal shared parental responsibility – father seeks equal time arrangement – father lives in [K] – mother lives in [B] – locations separated by 78 kilometres – best interests – nature of the parties’ parenting relationship – assessment of respective level of parental competence – what is reasonably practical – reality of familial situation. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC; 61DA; 65DAA, 65DAC, 65DAE |
| Collins & Lawrence [2010] FMCAfam 893 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR COLLINS |
| Respondent: | MS LAWRENCE |
| File Number: | ADC 2718 of 2010 |
| Judgment of: | Brown FM |
| Hearing dates: | 16 & 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Collins – in person |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | Andrew B Thiele & Co |
ORDERS
The parties will have equal shared parental responsibility for the children of the relationship [X] born [in] 2003 and [Y] born [in] 2005 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The children live with the mother in [B] in the State of South Australia.
The children spend time with the father as follows:
(a)During school terms on alternate weekends from the conclusion of school on Friday (or 3.00pm if it is a pupil free day) until 5:00pm on the following Sunday or 5.00 pm the following Monday , in the event that Monday is a public holiday;
(b)For one half of each short school holiday period, the halves to be agreed between the parties and failing agreement to be the first half of each such holiday;
(c)For one half of each end of year school holiday period, on a week about basis, subject to the arrangements stipulated by these orders in respect of Christmas Day and Boxing Day in each year; and
(d)At other times and at any other occasions as may be agreed between the parties.
The children be exchanged wherever possible at their school but otherwise at the respective homes of the parents’ or such other locations as they agree from time to time.
For the purposes of any calculation necessary to implement these orders all school holidays are deemed to commence at 9.00 am on the first Saturday after school has ended for the term and to conclude at 9.00 am on the last Sunday of each such holiday period; the middle of each short school holiday will be 6.00 pm on the second Sunday after school has concluded in the preceding term; and all weeks during the end of year school holiday will commence and conclude at 9.00 am Saturday or 9.00 am on the day prior to school recommencing in the event of a part week.
For the purposes of calculating the week about arrangement during each end of year school holiday the following provisions will apply:
(a)The father will have the second week of such holiday period and each alternate week, or part of week, thereafter prior to the conclusion of the holiday period, subject to the periods specified in orders (16) to (19) hereof in the event the children are in his care on the last weekend prior to the conclusion of the school year; and
(b)The father will have the second week of such school holiday period and each alternate week or part of week thereafter prior to the conclusion of the holiday period subject to the periods specified in orders (16) to (19) in the event the children are in his care on the penultimate weekend prior to the conclusion of the school year.
The father’s time with the children, during school terms will recommence on the weekend following the recommencement of school in each term in the event that the children have spent the first half of the preceding school holiday with him and on the second weekend following the recommencement of school in the event that the father has spent the second half of the preceding school holiday with the children.
If Father’s Day does not fall on a weekend that the children are otherwise living with the father pursuant to these orders the father spend time with the children from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day.
If Mother’s Day does not fall on a weekend that the children are otherwise living with the mother pursuant to these orders the mother spend time with the children from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day.
The children spend time with the father from 5:00pm on 24 December 2012 until 3:00pm on 25 December 2010 and each even ending year thereafter.
The children spend time with the mother from 3:00pm on 25 December 2012 until 5:00pm on 26 December 2012 and each even ending year thereafter.
The children spend time with the mother from 5:00pm on 24 December 2011 until 3:00pm on 25 December 2011 and each odd ending year thereafter.
The children spend time with the father from 3:00pm on 25 December 2011 until 5:00pm on 26 December 2011 and each odd ending year thereafter.
The children spend time with the father from 9:00am on Good Friday in 2011 until 3:00pm on Easter Sunday in 2011 and each alternate year thereafter.
The children spend time with the mother from 3:00pm on Easter Sunday in 2011 until 5:00pm on Easter Monday in 2011 and each alternate year thereafter.
The children spend time with the mother from 9:00am on Good Friday in 2012 until 3:00pm on Easter Sunday in 2012 and each alternate year thereafter.
The children spend time with the father from 3:00pm on Easter Sunday in 2012 until 5:00pm on Easter Monday in 2012 and each alternate year thereafter.
On each of the children’s birthday the parent with whom the children are not living pursuant to these orders spend a period of three (3) hours with the children at times to be agreed between the parties, bearing the mother’s working hours, and failing agreement to be between 4:00pm and 7:00pm.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Lawrence is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2718 of 2010
| MR COLLINS |
Applicant
And
| MS LAWRENCE |
Respondent
REASONS FOR JUDGMENT
Background
This is a relocation case. Mr Collins “the father” and Ms Lawrence “the mother” are the parents of [X] born [in] 2003 and [Y] born [in] 2005.
The parties have never been married. They did however have a committed relationship with one another and lived together, in [K], from January 1999 until they separated in early 2007.
The father commenced these proceedings on 20 July 2010. The background to his application is set out in earlier reasons for judgment which were delivered on 20 August 2010.[1]
[1] See Collins & Lawrence [2010] FMCAfam 893
The mother is a [occupation omitted]. During the parties’ relationship and afterward, she worked at [W], which is near [K]. [X] and [Y] attended [W] school. After the parties separated, the two children concerned were parented in a split week shared care arrangement, moving between their parents’ two homes in [K], so that they spent six days each fortnight with their father and eight days with their mother.
In early July of 2010, the mother was offered a temporary six month position as [omitted], commencing at the start of term 3 in 2010. She took up the position. This meant she had to move from [K] to live in [B]. She took [X] and [Y] with her. She did so at short notice and effectively delivered Mr Collins with a fait accompli.
It is seventy-eight kilometres or a drive of about one hour between [B] and [K]. It is not a huge drive but it rendered impractical the pre-existing shared care regime. Clearly the children could not attend two primary schools, during the school week and needed to live more in one parent’s household than the others.
At this stage, it was the mother’s position that the shared care regime was not working well for the children, particularly [X], who was exhibiting signs of emotional stress because of it. It was also her case that the parties’ parenting relationship was marked by extreme conflict and communication difficulties, which rendered an equal time regime impractical and problematic.
The father did not agree. He was concerned that he had not been properly consulted by the mother about the important decision involved in the children moving to live in [B]. He characterised this decision as a unilateral one, made only by Ms Lawrence and, as such, ipso facto poor parenting on her part.
It was also his case that the children’s best interests would not be well served by the move because of the level of disruption it would create in respect of the children’s relationships with their various friends in [K], as well as their schooling and extramural activities in the town, but above all in terms of their maintaining a strong and on-going relationship with him, which he believed would inevitably be much reduced as a result of the move.
For reasons, which I provided to the parties on 20 August 2010, I determined that the children’s best interests would be served if they lived in [B], with their mother and spent time with their father on alternate weekends and during school holidays, pending the final outcome of the parties’ competing applications. In these circumstances, I appointed the earliest final hearing open to me, which was on 16 & 17 December 2010.
The chief benefit of these dates was that it would enable the children to complete the school year at [B]. I also hoped that the mother’s future employment position would be clearer by this stage. I also considered that the father and children would be able to maintain their relationship with one another satisfactorily, pursuant to the interim arrangement put in place, given the distance between [K] and [B].
In order to prepare the matter for final hearing, I ordered that a family report be prepared pursuant to section 62G of the Family Law Act 1975. The report was released to the parties on 16 November 2010. The report was prepared by Ms B, a social worker. Mr Collins did not take part in the interviews and observations leading up to the release of Ms B’s report.
Ms B recommended that the parties should have equal shared parental responsibility for [X] and [Y]; the children should continue to live with their mother; spend alternating weekends, during school terms, from after school on Friday until the following Sunday evening with their father; as well as half of each school holiday period and times to be agreed on special occasions.
There have been on-going proceedings, between the parties, in the District Court at Adelaide, regarding the division of property relating to their de facto relationship. At the time of the interim hearing, I was told these proceedings would proceed to trial in the forthcoming September. The trial did not eventuate due to judge unavailability. The trial has been re-scheduled for April of 2011.
It is common ground between the parties that the property issues have been a source of great friction between them. Relevant to the proceedings are two properties in [K]. The father lives in one of these properties, which was the parties’ former family home. The father also operates a business as a metal fabricator from these premises. The business is his sole source of income. Until July of 2010, the mother lived in the other property concerned. It is now rented out.
Both parties assert that the other is motivated by thoughts of financial advantage in these proceedings. The father has deposed that the mother is “greedy” and wants the children to live more with her than him, so that she can receive a greater share of the property concerned.
The mother asserts that the previous shared care arrangement suited the father because it resulted in her having to pay child support to the father for [X] and [Y]. She is a PAYG taxpayer. As such her level of income is readily ascertainable by the Child Support Agency “the CSA”. She earns approximately $73,000 per annum. On the other hand the father is self employed. His level of income has been modest in recent years. In the 2009/2010 tax year his income was said to be $20,000.00.
One of the mother’s major reasons for wanting to take up the [B] position was that it would result in her receiving a higher salary. It is her case that she found it difficult to make ends meet, whilst she lived in [K]. She believes the father arranges his affairs to ensure that he is not liable to provide her with any financial support for the children. It is my finding that financial issues between the parties represent a great source of friction between them.
Accordingly the current relationship between the parties is a poor and mistrustful one. These difficulties have been exacerbated by the recent proceedings in this court, which came about because of the mother and children’s move to [B]. The circumstances surrounding this move were a source of umbrage for the father in the period since and arrangements for him to spend time with [X] and [Y] have been marked by great difficulty.
It is the mother’s position that she has been subject to unwarranted abuse from the father, particularly in the form of text messages sent by him to her mobile telephone. She asserts that the father is unwilling to prioritise his relationship with the children over his own emotional need to express his displeasure with her. She characterises Mr Collins as a violent and controlling person, who has subjected her to years of emotional and verbal abuse.
This is the background to the current proceedings. They have been made more difficult because Mr Collins, although trenchantly opposed to the children continuing to live in [B], has filed little affidavit material in the case and did not take part in the family report process. As such, it was difficult for me to assess what type of relationship he has with [X] and [Y].
In addition, he was not legally represented in the case and chose not to cross-examine Ms Lawrence about the many matters raised in her lengthy trial affidavit. Nor did he wish to ask Ms B any questions about the contents of her family report. Accordingly many of the evidentiary issues raised by the mother are unchallenged, as are the conclusions reached by Ms B.
The mother called two other witnesses. They were Ms M and Ms W, a primary school teacher and primary school counsellor respectively. Both have worked with the mother in the past and both share friendship with Ms Lawrence. They have both been professionally involved with [X] and [Y]. The main issues Mr Collins wished to raise with them was his view that they are each biased against him and part of an informal conspiracy against him, centred on the [W] School.
Accordingly, the bulk of the two day hearing was taken up with the cross-examination of Mr Collins and an examination of his conduct and motivations both before and after the mother, [X] and [Y] moved to live in [B]. My impression of Mr Collins is that he is an intelligent person but sadly an angry and frustrated one. However, I do not doubt his love for and interest in all matters to do with [X] and [Y].
On the other hand, my impression of Ms Lawrence is of a capable and focussed person, who wishes to get on with her life free from conflict and stress emanating from Mr Collins. I have no doubt that she is a highly capable parent. In this context, I asked Mr Collins to rate
Ms Lawrence’s capabilities as a parent on a scale between the worst possible parent and the worst possible. He described her as an “in between mother”.
However, after giving this somewhat damning and begrudging assessment, he conceded that she loved the children greatly; fed them properly and otherwise provided for them; attended to their health and education needs efficiently; provided them with a clean and safe home; and, as such, he could think of no concrete criticism of her, other than her move of the children to [B] had interfered with his level of access to [X] and [Y].
Ms Lawrence’s affidavit material is a litany of criticisms of Mr Collins as both a person and a parent. As previously indicated, Mr Collins chose not to challenge these criticisms, although I informed him that this would mean that the mother’s evidence would therefore likely be accepted by the court without demur.
I recognise that Mr Collins was like “a fish without water” in the courtroom setting. He described himself as being “essentially illiterate”. He had no lawyer to help him or any other support person to provide him with assistance. He had no friend or relative to give him emotional support in court.
Accordingly I accept that Mr Collins was placed at a considerable disadvantage in the proceedings before me. However, I think some of that disadvantage was of his own making. I find that he had proper notice of the family report interviews and chose not to attend when requested to do so and left it too late to reschedule, contacting the court only after the report had been completed.
In so doing, he exhibited a level of stubbornness and petulance. Essentially he refused to take part in a process which he considered would be weighted against him but about which he knew very little, if anything. It was only when the report came to his attention that he realised that, in refusing to take part, he had “shot himself in the foot”.
At the outset of the hearing on 16 December 2010, Mr Collins applied to adjourn the proceedings so that the family report could be updated with some input from him. I declined this request, forming the view that Mr Collins had been given a proper opportunity to take part in the family report process and it would be unfair to Ms Lawrence to adjourn the proceedings.
Ordinarily, given the circumstances of this case, I might have had cause to take many of the mother’s criticisms of the father “with a pinch of salt” and form the view that they had become exaggerated by reason of the court process. Having had the opportunity to observe Mr Collins at close quarters over the course of the hearing, I do not consider this to be the case. My impression of Mr Collins is that he is peevish and querulous, particularly when he does not get his own way.
The mother’s temporary placement, as [occupation omitted], has come to an end. It will not be renewed for the 2011 school year, as
Ms Lawrence had originally anticipated. The reason for this is that [workplaces omitted] are to be amalgamated and the person for whom Ms Lawrence was [acting] has decided to resume her position.
Ms Lawrence’s “substantive” position at [W] remains open to her. She does not wish to return to it. In these circumstances, Mr Collins was fearful that the mother and children’s move to [B] might be a prelude to a move to a location much further away from [K], which might impact even more on his capacity to spend time with the children.
However, a few days prior to the commencement of the hearing before me, Ms Lawrence was informed that she had been offered another [omitted] position at [B], working four days a week. It is a permanent position and she wants to take it up, although it would have been her preference to have been confirmed in the [omitted] role.
One of the several factors motivating the mother’s move to [B] in mid 2010 was her desire to assume a “leadership role” in [occupation omitted]. Such roles are hard to come by, particularly in rural areas of the State. Mr Collins remains concerned at the prospect of
Ms Lawrence moving again to take up such a position.
It is Mr Collins’s position that the mother’s current job at [B] is essentially the same as her old and secure job at [W]. He wants the mother to return to this position and resume living in the house which is available to her in [K]. He categorises Ms Lawrence as being absorbed with her own needs, rather than those of [X] and [Y], in wanting to stay in [B], particularly given there is no great practical impediment standing in the way of her returning to [K].
It is his case that it is largely axiomatic that the best outcome for [X] and [Y] is one where they are parented in an equal time arrangement, so that they may have an equal level of relationship with both their father and their mother. It is also his case that the children need stability, which can best be provided by a return to the status quo which existed prior to June of 2010.
This parenting status quo was provided to the children in [K], an environment with which they are comfortable and familiar and where their friends live. Above all, it is where he and the mother have lived for many years and where the children were jointly parented, until the mother’s unilateral actions brought the arrangement to an end.
Mr Collins has no wish and no plans to leave [K], where he is happy and well established. It is his case that [X] and [Y] need both their parents and for them to see their father only once per fortnight, as the mother proposes, is simply “not enough”. It is also his case that such an outcome is contrary to the principles contained in the Family Law Act 1975.
Ms Lawrence has no wish to return to live in [K], where she says she was often unhappy and anxious, largely as a result of the behaviour of Mr Collins towards her. She wants to stay in [B] and get on with the life of her choosing, rather than the one Mr Collins wishes her to lead.
It is also her position that [X] and [Y] are now satisfactorily established in [B] and are happier and more emotionally secure there than they were when they live in [K] and were parented in the equal time regime. She continues to have grave reservations about the father’s capacity as a parent and his attitude towards her.
She believes that the previous care arrangements were unsettling and unsatisfactory for [X] and [Y]. It is her case that she and Mr Collins do not have compatible parenting or communication skills and so have no capacity to implement successfully a shared care parenting arrangement.
As such, she believes it would be contrary to the children’s best interests for the equal time regime to be reimposed, particularly given that such an outcome could only come about by restricting her entitlement to live how and where she chooses and by, in effect, compelling her to live in a location where she will be unhappy.
There can be no outcome in this case, which will be satisfactory to both the parties involved and to all those who will be affected by the outcome. The various options available to the court, in the outcome of this case, cannot be manipulated, like the surface of a Rubik’s Cube, to reach a perfect result.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom and be unduly restrictive.
These proceedings are directed to resolving this dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both "a delicate interplay of concepts" as well as "an imbroglio of principles."[2] The level of complexity is intensified by the fact that the Commonwealth parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
[2] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1
The Evidence
The parties and Ms M and Ms W were the only witnesses who gave evidence in these proceedings. Neither party wished Ms B to attend at court for cross examination. Accordingly her report and its conclusions are not challenged.
I have no reason to doubt the credibility of either the mother or the two other witnesses upon whom she wished to rely. I accept the mother’s evidence and find her to be a more accurate historian than the father.
In these reasons for judgment, findings of fact are made on the balance of probability. In what follows, statements of fact constitute findings of fact.
a) Chronology
The parties met in 1995. They moved to [omitted] in 1999, when the mother began working at [W]. They separated in February of 2007. Shortly afterwards the parties, ostensibly at least, agreed on the arrangement whereby the children would live with their father from 10.00 am on Sunday until 3.00 pm the following Wednesday of each week.
The mother’s view is that she was “railroaded” into this arrangement, which the father felt was his entitlement. I accept this evidence. Much of the father’s case seemed to me to be built on his sense of entitlement. I do not consider Mr Collins to be particularly child focussed.
The mother’s position is that the father is “a very controlling man”, a characteristic he exhibited from the earliest stages of the parties’ relationship. It is also her case that the father was frequently verbally abusive and insulting of her during their relationship. In the light of text messages which the father acknowledges he sent to the mother, I accept this evidence.
Prior to the parties’ separation, the mother deposes she was primarily responsible for providing the children’s care. She also says that she and the father frequently disagreed about matters to do with the children, such as routines and discipline. Again I accept this evidence.
Ms Lawrence’s mother lives in [omitted]. She also has siblings who live in Adelaide and [omitted]. She is close to her family. Ms Lawrence has not re-partnered since the parties separated.
Mr Collins deposed that he currently lives alone. However, in the Family Report [X] indicated that her father had a partner, who was involved in domestic duties in his household. [X] reported that she got on well with this person.[3]
[3] See Family Report at paragraph 35
Mr Collins’s mother lives at [O]. In the past, she has been significantly involved in these proceedings, assisting the father with his court documents and writing letters of complaint to the Education Department about the involvement of Ms W and Ms M in the case, which she regards as unprofessional.
However Mrs C has not filed a formal affidavit in the case and did not attend at court, with her son, for the final hearing. It is the mother’s position that Mrs C and the father have had a falling out. In any event she also asserts that [X] and [Y] have not spent much time with their paternal grandmother.
Besides his mother, Mr Collins has a sister who lives in [P], who has four children; another sister who lives in Adelaide, who has one child; and a brother who lives in [O], who has six children. Accordingly [X] and [Y] have many cousins on their paternal side.
b) Post separation care of the children
The mother’s evidence is that it was clear from the earliest stages that the shared regime was unsuitable for the children. She deposes that [X] frequently wet the bed and began to exhibit signs of emotional disturbance, particularly aggressive behaviour. It is her case that handovers of the children were also highly problematic.
The mother has long held concerns about the safety of the children, whilst in their father’s care and his capacity to tend to their needs. I do not regard her as either neurotic or hyper-vigilant, as Mr Collins would have it. He describes the mother’s response to his care of the children as “it was never good enough for her”.
In August of 2008 [X] returned from her father’s care with fingermark bruises to her arm. She explained these had occurred when she had run away from her father. After this incident, the mother began a course of counselling for [X], who was upset by it.
In 2008 and again in 2009, [X] suffered from thrush, which required the application of an ointment. Mr Collins did not obtain his own supply of the ointment for [X]. The mother says that the father told her he was too embarrassed to buy the required medication. The mother is also concerned that the father does not properly supervise the children, particularly in terms of the power tools, which he uses for the business conducted from his home.
In March of 2010, [Y] suffered burns to his toes whilst in his father’s care. The mother felt compelled to seek medical treatment for the injury, which the father chose not to inform her about. [Y] later disclosed that the incident had occurred whilst he was playing with fire.
Mr Collins agrees that [Y] burnt his foot. He characterised the injury in the following terms: “kids have accidents…it was not that bad”. He says he discussed what to do about the injury with his sister in [P] and went to two chemists. He concedes he did not discuss the matter with the mother at all.
The mother has other complaints relating to the father’s failure to properly treat hair lice, which the children contracted and that he did not always ensure that the children’s toys and other possessions passed with them between their parents’ respective homes, causing [X] and [Y] to be upset.
These are common grievances in parenting cases involving shared care and are often easily dismissed. However, given my assessment of each of the parties in the case, in my view these matters cannot be regarded as trivial. Rather they are symptomatic of a deep dysfunction in the parties’ parenting relationship and demonstrative of their flawed capacity to communicate and approach the parenting of the children cooperatively and consensually.
Ms Lawrence’s evidence is that when she is emotionally distressed [X] scratches at her scalp causing scabs to appear. She believes that this behaviour is a reaction to stresses arising from the shared care regime, as this behaviour has ceased since [X] moved to [B]. It is her case that Mr Collins was dismissive of her concerns about [X].
In his evidence Mr Collins described [X] as “a worrier [who] displays her stress”. He agreed that [X] scratches her head. He also said she engaged in disruptive behaviour so that she could “annoy people”. It is Ms Lawrence’s perception that Mr Collins favours [Y] over [X].
c) Financial matters
Ms Lawrence has been in paid employment, as a PAYG taxpayer, for the vast majority of the parties’ relationship. She took paid maternity leave following [X]’s birth and returned to the workforce, for financial reasons, shortly following [Y]’s birth. She is currently earning a salary in the vicinity of $73,000.00.
Mr Collins has been self-employed during the parties’ relationship and afterwards. In the financial year ending 30 June 2009 he reported an income of $35,000.00. He anticipates that his income will fall to around $20,000.00 per annum in future. He does the books for his business.
Due to the discrepancy in the parties’ level of discernible income,
Ms Lawrence was assessment to pay child support to Mr Collins, whilst the shared care regime was in place. Since she moved to [B] and the care arrangements for the children have changed significantly, Mr Collins’s level of reported income has been such that he has not been assessed to pay any significant amount of child support for the children. In any event, regardless of any assessment, he has not paid any child support to Ms Lawrence.
[Y] was attending child care in [K] for much of 2008 with the mother paying the fees involved. In August of that year, she wrote to
Mr Collins informing him that she could no longer afford to pay all the fees involved. Mr Collins responded to this situation by withdrawing [Y] from child care and in the subsequent year from kindergarten, on the days when he ([Y]) was in his care.
The property proceedings between the parties have been outstanding for several years and are a source of great friction between them.
Ms Lawrence’s evidence, which I accept, is that she personally pays many of the outgoings relating to the property which the father occupies in [K] because these liabilities – council and water rates – are in her name. It is also her case she has paid joint credit card debts in the period since the parties separated.
Ms Lawrence’s evidence, again which I accept, is that she has historically paid for the vast majority, if not all, of the children’s needs relating to such things as child care; school and kindergarten fees; sporting expenses; and dental and medical appointments. As I have already indicated, one of the reasons the mother wished to live and work in [B] was that she would be better off financially.
The father was not represented in these proceedings. He is not regularly represented in the property proceedings, although he has attended on several lawyers, who apparently provide him with “unbundled” legal services and advice, to use the jargon, from time to time.
The mother’s evidence is that she is currently significantly indebt, in respect of legal fees, because of what she regards as the father’s unreasonable and intransigent position in respect of the property proceedings. She regards the father’s behaviour as being a further example of his oppression of her. During the course of the proceedings before me, I was struck by Mr Collins’s capacity for stubbornness.
d) Care arrangements following the children’s move
The interim decision regarding arrangements for the children was handed down on 20 August 2010. The orders I made envisaged the children spending alternate weekends, during school terms, starting from the conclusion of school on the Friday of that weekend.
The first weekend was specified to be the weekend starting 20 August. Mr Collins was to collect the children from their school and
Ms Lawrence was to receive them back into her care the following Sunday afternoon at the [K] Post Office or such other location at the parties agreed.
I also ordered that the school holidays were to be shared equally between the parties. I did not provide an exact formula as to how this division was to be calculated other than I stipulated that which half of the holidays each parent was to have was to be as they agreed and failing agreement the father was to have the first half of each school holiday.
Unfortunately these orders, which I thought were comparatively straightforward, have not proven easy to put into operation by the parties. Mr Collins was not able to collect the children from school on the first weekend and so Ms Lawrence drove them to [K], so that they could spend the weekend with their father.
The next weekend concerned started on a pupil free day (3 September) for the children and so they were at home on the Friday in question. Ms Lawrence suggested that the father collect the children from her home. A proposal to which Mr Collins agreed. However Ms Lawrence complains that he arrived much earlier than agreed, which “sent [X] into a spin”.
When Ms Lawrence collected the children the following Sunday (5 September), she says she and Mr Collins discussed arrangements for the forthcoming end of third term holidays which were due to commence on Friday 24 September 2010. Ms Lawrence deposes it was agreed that Mr Collins would have the children from the Sunday of the first weekend (26 September) until the Sunday of the middle weekend of the holidays, which would have satisfied the orders made by me.
Mr Collins’s next weekend with the children was scheduled for Friday 17 September. On the prior Wednesday, he informed Ms Lawrence that he would not be able to have the children due to a work commitment. In his evidence, Mr Collins indicated that he had had to go to Sydney to pick up some machinery. He described the commitment as a “spur of the moment thing”.
Mr Collins did not collect the children on 26 September, as both the mother and children were expecting. Ms Lawrence says in response to her inquiry as to whether she should give the children tea before they went to their father, she got a text message, from Mr Collins, at the last moment, indicating that she should keep the children.
It is Ms Lawrence’s evidence, which I accept, that both children, but particularly [X] were very distressed that their father did not arrive as planned. Ms Lawrence says she texted Mr Collins to ask him to telephone the children and explain what was happening to them.
Mr Collins declined to do this. Rather he chose to send an abusive text message to Ms Lawrence. This does him no credit and causes me to seriously question his ability to differentiate between his own emotional need to display his anger and his responsibility to be available for the children.
The message read as follows:
“You have fuck my relationship with your fucking lies I hate u and the kids will 2 you are some pice (sic) of work”
In my view, Ms Lawrence replied in measured terms, considering it was she alone who had had to deal with the children’s distress at the father’s unavailability to spend time with them, about which she had learnt at the last possible minute. She texted as follows:
“Oh so this about u not the kids!”[4]
[4] See Exhibit A
This led to Mr Collins requesting that he have the children for the second half of the school holidays from 3 October until the following Sunday. Ms Lawrence replied, by text, that this did not suit, as she had arranged “family stuff” for that week. This response, which I consider neither unreasonable nor provocative, precipitated a further abusive text message from Mr Collins.
Mr Collins did not spend time with the children on the first few weekends of the fourth school term. This period coincided with the appointments which had been arranged for the preparation of the Family Report. He resumed spending time with the children on the weekend commencing 12 November, when he collected them from their school without incident.
This followed a further exchange of abusive text messages emanating from the father on 4 November, when he demanded the children spend time with him on the following weekend, which was not his weekend according to the mother’s interpretation of the court order. As such she was not prepared to allow the children to go to their father.
From the mother’s perspective, this was the last straw and she applied to the [P] Magistrates Court for a restraining order against the father. Although given the opportunity to contest the making of a final order, Mr Collins did not attend at the Magistrate Court and a final restraining order was made, in the mother’s favour, on 7 December 2010.
The mother’s evidence, supported by Ms W and Ms B, is that the children love their father and are distressed when he does not arrive to spend time with them, as they expect. Ms Lawrence deposes that it is her perception that the children, but particularly [X], feel rejected by their father and this causes them to act out their feelings in an angry and sad manner.
I accept the mother’s evidence in this regard. I can also find little to justify Mr Collins’s behaviour between early September and mid-November of 2010, when he did not spend any time with the children. In my view, it is infantile for him to blame the mother for this state of affairs.
It is also indicative, I think, that he does not always have the best interests of [X] and [Y] to the forefront of his mind. Rather he prefers to vent his anger for the mother. I do not accept his assertion that the mother wishes to either sabotage his relationship with [X] and [Y] or is otherwise unwilling to support it. To the contrary, in my view, he is not always willing to put himself out to spend time with them.
e) Ms W’s evidence
Ms W has been a primary school teacher for 33 years. She worked at [W] School from January 2007 and moved to [B] at the same time as Ms Lawrence did. She knows [X] and [Y] well. She has counselled [X] on around five occasions.
Ms W described herself as both a colleague and friend of the mother. I regard her as an objective witness, who although obviously not well disposed towards the father, was able to give useful evidence to the court about how [X] and [Y] are currently faring.
It is Ms W’s evidence that both children have settled in well at [B] School and are doing better there than they were at [W] School. She describes both children as smiling and happy at their current school. This was not her experience of [X] at [W], where her behaviour was found to be frequently disruptive.
Although she is not formally qualified as a counsellor, Ms W’s many years of experience of working with children have led her to perform the role of counsellor in the setting of rural primary schools. She counselled [X] following the disruption to her relationship with her father which occurred from September 2010 onwards.
Ms W describes [X] as being teary and distressed in this period and of missing her dad. She said she loved her dad and was upset when he did not come and get her. Ms W has also had some involvement with [Y], but he was less forthcoming than his older sister.
f) Ms M’s evidence
The affidavit of Ms M was before me at the time of the interim hearing on 16 August 2010. I reported her as then untested evidence as follows:
“Ms Lawrence asserts that [X] has been having difficulties at school, particularly so far as her literacy is concerned. She attributes these difficulties, in part, to the extent of time [X] has been spending with her father. In this regard, she is supported by the evidence of Ms M.
Ms M has tutored [X] in reading over the last eighteen months or so. She describes [X] as being very difficult to tutor and having regressed in her literacy skills, after she has spent time with her father. However, when she comes to Ms M, after being in her mother’s care, she (Ms M) describes a confident and better behaved child.”
In her affidavit, Ms M deposed as follows:
Each week, however due to this disruption [X] had to struggle to retain information and was not interested in learning new skills, at the beginning of each week. She came from her father’s in a very negative frame of mind and seemed to have blocks in her which literally stopped her learning.
When asked about her time at her father’s she would rarely elaborate on her time there simply stating ‘I stayed at dads.’
When asked about her time at her mother’s, she would launch into descriptive conversation that was lengthy and animated and full of information about her home life. She regularly needed to be guided back on task. Her reading ability presented at a normal rate by the end of each week. These are massive interruptions for a child of [X]’s age to go through so regularly.
As a teacher with vast experience in teaching Junior Primary students from 5 to 8 year olds I believe that [X] was negatively impacted when staying with her father – particularly throughout the school week.
Large sores slowly emerged on [X]’s scalp the size of which increased over time when questioned on this she did not wish to discuss it. I discussed the issue with her mother and found that it had been investigated and was likely to be due to stress.
After observing [X] and her changing mood and skill ability, I believe this is yet another obvious sign that the care arrangements she was involved in were not working for her and were becoming more and more detrimental to her wellbeing.”[5]
[5] See Ms M’s affidavit at paragraphs 10-15
Mr Collins does not accept Ms M’s evidence and regards her as a crony of the mother, whose views about [X] are skewed because of her long-standing association with Ms Lawrence. When challenged, Ms M simply said she “saw what she saw” which had been reported in her affidavit. I do not consider Ms M to be either biased or lacking in objectivity. I found her evidence helpful as being indicative of the level of emotional stress, which the shared care regime produced for [X].
The mother’s evidence is that [X]’s scratching at the top of her head became worse in May of 2009 and was so severe that the Principal of the [W] School became concerned. However, as both Ms B and Ms W report, this behaviour has received more targeted help at the [B] School, since [X] was enrolled there.[6] As previously indicated
Mr Collins confirmed this behaviour, on [X]’s part. The mother’s opinion is that it is an indicator of stress.
[6] See Family Report at paragraph 59
g) The family report
Ms B reported as follows as to why Mr Collins had not taken part in the family report:
“Mr Collins did not notify or attend the Family Report interview scheduled for 21 October 2010. Consequently he was not interviewed or observed with the children. The report writer made numerous attempts to contact him on the day but was unsuccessful. On 22 October 2010, the report writer finally made contact with Mr Collins and offered another interview time during the week or over the weekend. Mr Collins did not take up the offer.”[7]
[7] Ibid at paragraph 10
Ms B described the mother as being “calm, rational and articulate”. This accorded with my own impression of her. She recounted to Ms B her concerns about what she considered to be Mr Collins’s heavy handed discipline of the children and his lax parenting style.
In interview, [X] presented to Ms B as “sad, stressed and teary” particularly because she had not, at the time of the report, seen her father for some time. It was clear to Ms B that [X] had a significant level of relationship with each of her parents but there was some ambivalence in her relationship with her father. Notably [X] expressed what was described as a “strong preference” to return to live in [K] and the life and parenting she had known there.[8]
[8] Ibid at paragraphs 35-36
[Y] was described as having “an easy disposition”. He was also reported as being “very clear in his wishes and views” in spite of his tender years. He reported a desire to return to the previous arrangements pursuant to which he had lived in [K] and had a shared care arrangement with both parents. He too indicated he was missing his father and was confused as to why he had not seen him for a period approaching eight weeks.
The observed interaction between Ms Lawrence and the children was a happy and spontaneous one. Ms B had no concerns about the children interacted with one anther or with their mother.
However Ms B was impliedly critical of Ms Lawrence’s actions in moving the children away from [K] and their father, so she could pursue career options in [B]. Ms B was also concerned that
Ms Lawrence’s position at [workplace omitted] might not be a permanent one and she might choose to relocate further away “thus entrenching the difficulties of Mr Collins having a significant and meaningful relationship with the children.”[9]
[9] Ibid at paragraph 57
Ms B opined that if this outcome occurred, the issue of the mother’s move away, with the children, from [K] and their father would become a more significant issue for [X] and [Y], particularly in terms of limitations it would place on the nature of their relationship with their father. In these circumstances, she did not rule out the desirability of the mother returning to live in [K] and the previous care arrangements being reinstated.
The uncertainty surrounding where Ms Lawrence will be employed next year has now been resolved. She will remain at [B], although not in the position of [omitted]. Ms Lawrence has also made it clear that she has no wish to return either to live in [K] or to work at [W]. I accept her evidence that she now intends to stay in [B] for the foreseeable future. Although it is somewhat speculative, I consider that this evidence would have quietened some of Ms B’s concerns.
In the evaluation section of the family report, Ms B reported as follows:
“The children both report a clear desire to return to the familiar surroundings of [K]. This is understandable given their young age and maturity where routine; familiarity and stability are benchmarks for healthy development. Notwithstanding these considerations, young children are highly adaptable to their environment and the Court should give minimal weight to their wishes and views. It is noteworthy however despite
Ms Lawrence’s concerns regarding Mr Collins’s parenting practices both children were missing their father and wished contact to resume.
…
Mr Collins has done himself a great injustice to his proposal by not having had anytime or communication with the children over the last number of weeks. The children clearly love and need their father in their lives however such unexplained absences only confuses them and gives rise to them being unsettled needlessly. Without knowing why no contact has occurred it is difficult to fathom what could have motivated this. Without good reason for his absence then Ms Lawrence’s proposal appears to offer the stability and workability needed for the ongoing care of the children.”[10]
[10] Ibid at paragraphs 58 & 61
This was the basis of her recommendation that [X] and [Y] should continue to live predominantly with their mother and spend time with their father on alternate weekends, during school terms and for half of each school holiday. She recommended that Mr Collins spend time with the children on special occasions “subject to negotiation providing he confirms his availability to care”. Ms B also recommended that the parties have equal shared parental responsibility for [X] and [Y].
Accordingly, by necessary implication, it is the position that Ms B is not directly critical of the mother’s capacity to support the children’s relationship with their father or that she suggests Ms Lawrence is likely to work actively to exclude Mr Collins from important aspects of the children’s lives. No doubt, in part, this was the basis of her recommendation of equal shared parental responsibility.
Certainly, although she did not meet Mr Collins, Ms B recognises that he is a very important factor in the children’s lives, both currently and in the future. The children obviously love and miss their father. Most importantly however, Ms B is very critical of Mr Collins’s lackadaisical approach to the children, as exhibited by his unwillingness to see them for a period of around two months.
Although I did not hear Ms B’s view of the matter, I would imagine she would consider that [X] and [Y] were at a stage in their lives, in September and October of last year, when they would most be at need of reassurance from their father of his love and interest in them.
Essentially, because of his pique for the mother, brought about because of his inability to stick to arrangements, Mr Collins absented himself from the children’s lives, when they needed him. This shows a limited insight into the responsibilities of being a parent.
Legal principles applicable
The service of [X] and [Y]’s best interests is the most important consideration in this case [section 60CA]. This is the paramountcy principle. [X] and [Y]’s best interests are the paramount or most important consideration in this case.
The provisions, in the Family Law Act 1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act 1975 [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The mother’s position is that she should have sole parental responsibility for [X] and [Y]. In addition, she seeks an injunction that would restrain the father from denigrating her to or in the presence of the children.
It is her position that the parties’ parenting relationship is simply too compromised to enable her and Mr Collins to exercise parental responsibility consensually and so such an order will not be in the best interest of [X] and [Y]. She has also raised some issues of family violence, but this does not seem to be the main thrust of her case.
Mr Collins’s position is that the presumption should be applied. This is the basis for his preferred outcome that the mother and children return to live in [K] and the previous shared care regime should be reimposed. It has always been his position that this is the best outcome for [X] and [Y].
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
This last consideration is particularly important in the circumstances of the current matter. It is clear that Ms Lawrence did not consult extensively, if at all, with Mr Collins about her plans to relocate [X] and [Y] to [B] in the middle of 2010.
Ms B has raised concerns, as has Mr Collins, about the possibility of Ms Lawrence moving further afield from [B] in search of other advancement in [occupation omitted]. If the parties exercised equal shared parental responsibility her entitlement to move the children further, following the outcome of this case, is constrained.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[11]
[11] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
Given the structure of Part VII of the Family Law Act 1975, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
On the other hand, pursuant to the principles contained in the Family Law Act 1975, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[12]
[12] See C & S [1998] FamCA 66
This requirement for careful analysis flows from the fact that a parents’ entitlement to freedom of movement, as a citizen, is frequently difficult to reconcile with the entitlement which children have, pursuant to the Family Law Act 1975, to maintain and develop relationships within their family, particularly with a parent, which are likely to be significant to them, both in the short and long term.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations as to where and how he or she proposes to live in future is something which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[13] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[13] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
AMS was determined prior to significant legislative amendments to the Family Law Act bought into effect by the Family Law Amendment (Shared Parental Responsibility) Act. These amendments have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents and have changed the pathway, which the court must follow, in all cases concerning children, particularly those in which the presumption of equal shared parental responsibility has been found to apply. This pathway applies just as much to cases involving relocation, as it does to more conventional parenting cases.
Pursuant to the applicable legislation, when the presumption of equal shared parental responsibility has been found to apply, the court is directed to “to consider” firstly equal time and then secondly “substantial and significant” time between a parent and child. It has been held that this requirement applies just as much in relocation cases as it does in other cases pertaining to children.
The Full Court in Goode & Goode[14] has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[14] See Goode & Goode (2006) FLC 92-286
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
In Taylor & Barker[15] the Full Court of the Family Court said as follows:
… [the approach] which we have endorsed, does require that 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. However 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”.
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.
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 a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[15] Taylor & Barker [2007] FamCA 1246 at paragraphs 81-83
The Full Court speaks of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
If the presumption of equal shared parental responsibility is found to apply in this case, I would be required to give active consideration to the father proposal that the children live with each of their parents in an equal time arrangement. This could only come about if Mr Collins moves to [B] – something he has said he has made no plans to do and which would be against his inclinations – or Ms Lawrence is compelled to return to [K] – an outcome to which she is disinclined and which would require the court to fetter her freedom of movement.
Accordingly, as a matter of logic, in the present case, if the presumption applies, the court is required to give active consideration to the following possible outcomes:
·The children live with the parent (Ms Lawrence) who wishes to relocate and spends time with, and communicates with, the other parent (Mr Collins);
·The children live with the non-relocating parent (Mr Collins) and spend time with, and communicates with, the other parent (Ms Lawrence) if she remains in [B];
·The children live equally with the parents concerned in the locale ([K]) where previously all concerned have lived, or live with one parent and spend substantial and significant time with the other parent in that locale;
·The non-locating parent moves to the venue chosen by the relocating parent, and the children live equally with the parents or live with one parent and spend time with the other in that locale.
However, as the High Court has pointed out, each such outcome must be examined in the context of what is reasonably practical, given the reality of the situation facing the family concerned, including, I take it, the practical consequences of the relocation either happening or not happening.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[16]
[16] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
As the child’s best interests remain the paramount consideration in the outcome of any relocation proposal and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[17] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[17] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
It is a common occurrence for a parent to move voluntarily away, from the child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[18] As Kay J pointed out in Godfrey v Saunders[19] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[18] See D and S V (2003) FLC 93-137 at 78, 280
[19] See Godfrey v Saunders (2007) 208 FLR 287at 298
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there thus is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
As a result of these considerations, I conclude that the main thrust of the enquiry, in this case, remains what outcome is likely to best serve the [X] and [Y]’s best interests. The recent amending legislation has not specifically prohibited a parent relocating with a child because such a move will have implications for the nature of the child/parent relationship with the other parent concerned nor has it imposed any special onus on the parent wishing to relocate.[20]
[20] see M & S (2007) FLC 93-313 per Dessau, J. at 81,386
The best interests of a child are ascertained by a consideration of the objects and principles contained in section 60B and the various considerations listed in section 60CC(2) and (3). Accordingly, the best interest test remains “integral” to the determination of any parenting issue, including the difficult issue of relocation.[21]
[21] ibid at 81,386
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[22], which arise from complex issues.
[22] See AMS v AIF (supra) per Kirby, J. at 86,041
However, the ultimate issue in the case is the best interests of the children concerned. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it.
As Boland J put it:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[23]
Determining [X] and [Y]’s best interests – section 60CC
[23] Morgan & Miles ibid at paragraph 74
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect any child concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of that child having a meaningful relationship with each of his or her parents.
Although the mother categorises the father as an abusive person and she has obtained a Family Violence Order against him, she does not couch her case in terms of any need to protect the children from family violence. She does not assert that the father has ever been physically violent towards her.
In addition, although the mother categorises the father as being neglectful in many aspects of his parenting, she does not seek to imposes any great restrictions on his time with the children, apart from the fact, if she, [X] and [Y] live away from [K], it will only be possible for Mr Collins to see the children on weekends and during school holidays.
Accordingly, in my view, the beneficial aspects of [X] and [Y] maintaining relations with each of their parents and the form by which this may be best achieved must be given pre-eminence by the court in its consideration of the primary criteria listed in section 60CC. This is the underpinning of Mr Collins’s case.
The rationale of the amended provisions of Part VII of the Family Law Act 1975 is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
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 bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
It is Mr Collins’s position that the most logical and practical way in which [X] and [Y] may have the most meaningful of relationship, with both him and Ms Lawrence, is if she returns to live in [K] and the previous parenting regime is reimposed, subject to the imposition of some form of injunction restraining Ms Lawrence from removing [X] and [Y] from the town in future.
At present, I am satisfied that both [X] and [Y] currently have a meaningful level of relationship with both their father and mother. Up until the middle of 2010, they spent almost equal periods of time in each of their parent’s households. Accordingly, both [X] and [Y] know their father and mother well and are very familiar with their respective parenting styles.
In addition, it is clear from Ms B’s report, particularly from her interviews with [X] and [Y], that the children love their father very much indeed. It is also clear that the children love their mother. Accordingly, one of the central questions for the court is whether the children can continue to have a sufficiently meaningful level of relationship, with their father, if Ms Lawrence’s proposal is acceded to or whether this outcome is inconsistent with the service of their best interests, as Mr Collins would have it.
Clearly, if Ms Lawrence is successful in her application, it will necessarily mean that Mr Collins’s involvement in [X] and [Y]’s lives will be significantly reduced from what occurred between the date of the parties’ separation, in early 2007 and the mother’s relocation of the children to [B] in mid-2010. Since the mother moved to [B], the children have spent only limited time with their father.
The central issue in the case is what are the likely consequences of this state of affairs continuing and whether it must necessarily mean that the children’s relationship with the father will be eroded of meaning. From Mr Collins’ point of view, he fears that he will be reduced to a minor and subsidiary role, in the children’s lives. At best, he will be an “in holiday-dad”, at worst, he will be largely a stranger to the children.
If Ms Lawrence’s application is ratified by the court, it will mean that Mr Collins cannot be involved in the daily minutiae of [X] and [Y]’s lives. He will not be able to attend readily at their school, meet their peers and teachers, seeing them play sport or being engaged in extra mural activities. Above all, he will not be able to be involved with them, in the mundane “hurly burly” of their everyday lives.
These are important considerations but it must be borne in mind that it is only seventy-eight kilometres between [K] and [B]. Mr Collins has access to a motor vehicle, the drive takes about one hour. In these circumstances, although the situation is very different to the previous one, it does not automatically prevent Mr Collins from “dropping in” on to very many aspects of the children’s lives, if they continue to live in [B].
The chief detriment of Mr Collins’s position is that it can only be achieved at the cost of compelling Ms Lawrence to return to a place where she no longer wishes to be and where she has been deeply unhappy. In addition, such an outcome will inevitably make
Ms Lawrence feel that she must be beholden, for ever, to Mr Collins, a person whom she considers to be manipulative and controlling of her.
On the basis of the evidence led before me, I am satisfied that
Mr Collins is controlling of Ms Lawrence and, in this sense, abusive of her. If Mr Collins feels frustrated or annoyed, by what he perceives to be Ms Lawrence’s unreasonable behaviour, he insults and abuses her, as is clearly established by the text messages that he sent to her in September and November of 2010. In response, Ms Lawrence’s tone was measured.
Mr Collins sees Ms Lawrence in wholly negative terms. She is “greedy”, so far as the property settlement is concerned. She wants to “control the kids”. She is a so-so parent. But the reality is that
Mr Collins provides little, if any, financial support for the children and continues to remain in self employment which, on his evidence, provided him with a diminishing and inadequate income. The property proceedings drag on, at great expense to the mother.
In these circumstances, I can understand why Ms Lawrence would have jumped at the opportunity to move to [B], as [occupation omitted]. A move which assisted her career and her finances. I can also understand why she would want to reduce Mr Collins’s level of influence in her life.
I accept Ms Lawrence’s evidence that she personally is happy living and working in [B]. As such, [B] is where she currently wants to be. [K] represents an unhappy past for her. To return to the town would represent a further element of control, in her life, wielded by
Mr Collins.
Inevitably, if Ms Lawrence is compelled to return to live in [K], against her wishes, she will be dissatisfied with her lot in life and will hold
Mr Collins responsible for it. [K] will represent a prison for her and Mr Collins will be her gaoler.
It would take an extraordinary amount magnanimity, on the mother’s part, to be anything other than ill deposed towards Mr Collins, whose actions will have resulted in her not being able to pursue her career aspirations and achieve some form of independence from him.
I am concerned that such a state of affairs will have implications for both Ms Lawrence’s and the children’s emotional wellbeing. In the past, [X] has demonstrated a “long history of oppositional behaviour.” [24] She has also been referred to a mental health nurse, in the context of her behavioural difficulties.
[24] See family report at paragraph 59
I do not think that the mother’s inevitable unhappiness, at the prospect of her personal plans being deferred, at Mr Collins’s instigation, can assist Ms Lawrence to parent the children to the full extent of her capacity. I except that it is axiomatic, that a happy and satisfied parent is a good parent.
If Ms Lawrence is bitter and miserable, at being compelled to live in [K], I have no doubt that this can only be detrimental for [X] and [Y]. In my view, this is potentially too high a price to be paid in order to achieve for [X] and [Y] the prospect of having the maximum level of meaning in their relationship with the father.
In any event, the distance between [K] and [B] is not so great and the logistical difficulties not so extreme that, if the father lives in the former and the children live in the latter, the relationship between them will be inevitably leached of all meaning, particularly if Mr Collins pulls his weight so far as remaining an active presence in the children’s lives is concerned.
[X] is around eight years of age. [Y] is six and a half. The children have spent extended periods of time, with their father, from the date of their respective births. As such, the children know and love their father well.
Neither child is of an age and the relationship which they each hold with their father is not so rudimentary that they will either forget their father or the significance of their paternal bond with him will inevitably diminish, if the children remain in [B] and are only able to see their father during school holidays and on alternate weekends. In this context, I am satisfied that, if Mr Collins remains living in [K] and the children remain living in [B], the children will continue to have a meaningful relationship with their father.
In this context, I bear in mind what Kay J said in Godfrey v Sanders,[25] the applicable legislation is directed to promote meaningful parental relationships, not the optimal possible level of such relationships. Relocations of children, both intra and interstate, are a frequent occurrence in Australian society, which is a highly mobile one.
[25] See Godfrey v Sanders (supra) at page 298
In these circumstances, children are frequently able to maintain an acceptable level of relationship with both of their parents, through regular periods of holiday time spent with the distant parent, augmented by telephone and electronic communication.
Most Australians live in urban centres, particularly on the eastern seaboard capital. Rates of divorce remain high. Many separated parents, in Sydney, Melbourne and Brisbane in particular, would think that the prospect of an hour long drive, along an uncluttered highway, to be a luxury in terms of spending time with a child. The reality of many such parents, who live on opposite side of these large cities, is very different.
In these cases, the kilometres to be negotiated may be modest in numerical terms but the practical difficulties caused by crowded roads and the cost of housing great. In such circumstances, the court must be careful about dictating to a parent the suburb in which he or she is to live.
It may thus be impracticable for a parent, who lives only a modest distance away from the other parent concerned, to have any thing other than weekend time with the child during school terms. In my view, such parental relationships can retain meaning nonetheless.
In all cases involving a relocation element, it is necessary to balance the pros and cons of the move, from the perspective of the children concerned. However, this exercise cannot take place in a vacuum, ignoring the rights and entitlements of a parent. Ms Lawrence’s reasons for wanting to remain in [B] are reasonable and well considered. Her proposal cannot be considered capricious in any way.
Mr Collins’s case is based on the assumption that the legislatively mandated preferred option, for the parenting of children following separation (if the presumption of equal shared parental responsibility applies), is an equal time arrangement or a substantial and significant time arrangement. These are the outcomes to which he aspires. Necessarily, he asserts that the previous regime can be easily reinstated upon Ms Lawrence resuming her position at [W].
I think that the father is either naïve or deluding himself if he considers that the previous share care arrangement can be seamlessly reinstated. The parties’ parenting relationship is historically poor. It has deteriorated in the period since the mother and children moved to [B]. The price of reinstating the shared parenting regime would be the frustration of Ms Lawrence’s aspirations and her perception that Mr Collins has reinstated his control over her.
It seems self apparent to me that the best chance for a shared arrangement to be successfully implemented is if it comes about organically and with the acquiescence of each of the parents concerned. That certainly would not be the case in this matter if such a regime was imposed upon the mother by, in effect, preventing her living where she would prefer.
In MRR & GR, the High Court indicated that section 65DAA is concerned “with the reality of the situation of the parents and child”[26], not with what is theoretically desirable. Inevitably there will be some parental relationships, whose individual features render them unsuitable for either a shared care regime or a substantial and significant time, no matter how much any child concerned may potentially benefit from such an outcome.
[26] MRR & GR [2010] HCA4 at [15]
In this regard, the fact that a shared time regime (or a substantial and significant time regime) can only be founded by restraining a parent’s freedom of movement, may be such a feature. However, every case will depend on its own particular circumstances and a careful balancing of the various section 60CC factors concerned.
Additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[27]
[27] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[28]
[28] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[29]
[29] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
It is notable, in this case, that both [X] and [Y] indicated to Ms B a strong preference to return to their previous living arrangements in [K]. This factor, for obvious reasons, favours Mr Collins’s position. However, given the immaturity of the children concerned, I must approach their ostensible views with caution.
All family reports must be regarded as analogous to a family snapshot, which has been taken in artificial circumstances and become frozen in time. If conducted on another day and in different circumstances, the report, like the photograph, is likely to be different. In this particular case, I must pay special regard to the likely factors at play on [X] and [Y], when they spoke to Ms B.
By the time of the family report, the children had been living in [B] for around three months, during the latter eight weeks of that period they had no contact with their father and were pining for him. This would have heightened their sense of insecurity and no doubt increased their yearning to return to what was familiar. I also note the ambivalence which [X] expressed about her father to Ms B.
In these circumstances, it was appropriate for Ms B to caution the court about placing too much emphasis on the children’s ostensible views. Accordingly, I do not think the children’s views are a determinative consideration in this matter.
b) The nature of the children’s relationship with each of their parents and significant others
It is not in dispute that [X] and [Y] have a close and loving relationship with each of their parents. It seems that their relationship, of late, with their father, has been somewhat disrupted. This has as a result of
Mr Collins’s attitude.
I know little about the children’s level of relationship with members of their wider family. However, it would seem likely that they have many relatives, on both their maternal and paternal aspects, who are deeply interested in their welfare and so wanting to spend regular periods of time with them. It seems unlikely that these relationships will be significantly changed if the children continue to live in [B] or return to [K].
As I have already indicated, the children’s move to [B], cannot, of itself, result in the total severance of the children’s relationship with their father and other members of their paternal family. The children will be able to see their father, paternal grandmother, uncle, aunts and cousins regularly both during the school year and school holidays.
c) The willingness and the ability of the parties to encourage a close and continuing relationship between the children and the other parent
The legislation requires me to consider the extent to which both parties have fulfilled or failed to fulfil their responsibilities as parents [Family Law Act, section 60CC(4)]. One of these responsibilities is the facilitation of a meaningful relationship between any child concerned and the other of his or her parents.
One of the themes of Mr Collins’s case is that Ms Lawrence wishes to “control” the children by unduly restricting the level of their relationship with him. I do not accept that this is the case. After all, perhaps against her better judgment, the mother agreed to an equal time regime, when the children, particularly [Y] were quite young.
This regime persisted for several years, in spite of the mother perceiving significant difficulties in respect of it, until the time of her job offer in [B]. Accordingly, [X] and [Y] were able to develop and maintain a close and loving relationship, with their father, between the date of separation and mid 2010, as a result of Ms Lawrence’s actions.
It is my view that Ms Lawrence has attempted to support the children’s relationship with their father, in somewhat difficult circumstances, in the period since she and they moved to [B]. She drove the children to [K] on the first scheduled weekend for contact. She attempted to organise the third term school holiday period. It has been Mr Collins who has not been co-operative in this regard. It was he who derailed the contact arrangements from September until November of 2010.
As such, I am satisfied that Mr Collins has failed to fulfil some of the responsibilities incumbent on being the parent. He has not made himself available to [X] and [Y], which has caused the children to be unhappy and unsettled. He has placed his own needs before those of the children.
On of the important responsibilities of being a parent is the duty to provide financial support for one’s children. In my view, Mr Collins has been remiss in this regard and content to leave to Ms Lawrence the responsibility of financially supporting the children in many areas, particularly in terms of their school fees and medical expenses.
True it is that Ms Lawrence failed to consult with Mr Collins about her desire to move to [B] in the first place. Mr Collins was critical of
Ms Lawrence for it. The incident has done a great deal of damage to the parties’ fractious relationships.
The circumstances of how Ms Lawrence came to know of the job and to apply for it are set out in the interim decision. I accept that the job came up unexpectedly and Ms Lawrence did not have a long time to consider it. Most importantly, her past experience of Mr Collins is such that it is likely that she knew there was little possibility of them having a rational and productive discussion about the issue.
In these circumstances, I do not consider that her actions in moving the children to [B] constituted a gross breach of parental responsibility, although her actions cannot be considered as being parenting “strictly according to Hoyle.”
d) The likely effect on the children of any changes in their circumstances
As a result of the orders made by me on 20 August 2010, [X] and [Y] were able to continue to live in [B] in their mother’s predominant care. They have been enrolled in the [B] School and according to Ms W, whose evidence I accept, both children are doing well at the school and are happy there.
Accordingly, the children have accommodated the transition to [B]. Ms Lawrence is a competent and caring parent. She also has professional experience of dealing with primary school children, as a result of her occupation as a [omitted]. [X] is at times a difficult and oppositional child. It seems to be the case that Ms Lawrence has the necessary attributes to assist the children with the transition from [K] to [B].
In my opinion, the transition of the children back to any shared care parenting, regime based in [K], is likely to be fraught with all manner of difficulties. For the reasons already sent out, Ms Lawrence will be bitter at having to move back to the town, which she was happy to leave. The parties conflicted relationship can only get worse.
The import of Ms M’s evidence, which I accept, is that [X] was emotionally affected at having to move between her parent’s respective households in 2009. Her distress manifested in her scratching wounds into her scalp. In these circumstances, I have grave reservations about how well [X] would accommodate a further change in her circumstances.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
It is seventy-eight kilometres between [B] and [K]. A distance which takes about one hour to drive. Both Mr Collins and Ms Lawrence have motor vehicles.
As I have already indicated, when one considers the size of continental Australia or the traffic congestion of Australia’s major cities, the time and distance involved in travelling between [B] and [K] cannot be regarded as creating an insuperable barrier in regards to the children being able to spend time regularly with their father and other relatives.
f) The capacity of the parties to provide for the children’s emotional and educational needs
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
Ms Lawrence is a [occupation omitted]. In the past, she has arranged for [X] to receive emotional counselling. More recently, both [X] and [Y] have seen Ms W for counselling.
It seems clear from Ms B’s report that Ms Lawrence is emotionally available to the children and they are happy and secure with her. Ms B was not able to fully evaluate the nature of the children’s relationship with their father because he withdrew from the children’s lives, during the period of time the family report was being prepared.
Up to this stage, the financial responsibility for providing the children’s educational needs has fallen on Ms Lawrence’s shoulders. In all the circumstances of this case, I have no difficulty in reaching the conclusion that the mother is much better placed, than the father, to provide for [X] and [Y]’s emotional and educational needs.
It also seems to me to be the case that Ms Lawrence has consistently demonstrated a better attitude to the responsibilities of being a parent. She has always been there for [X] and [Y]. I am not persuaded that this has always been the case, so far as Mr Collins is concerned, although I do not question his love for the children.
h) The children’s maturity, sex, lifestyle and background
i) Aboriginality
In the context of this case, these criteria do not appear to be specifically relevant.
j) Family violence orders
k) Any family violence order
For reasons already provided, family violence is not a consideration in this case. The mother has tired of the father’s verbal abuse and hectoring of her. In these circumstances she sought fit to obtain a Family Violence Order against Mr Collins, which he chose not to contest although it seems to be the case that he misinterpreted the police summons sent to him.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
In these circumstances, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible, for the children, which will obviate the need for any further litigation.
In my view, if I make the orders sought by Mr Collins, it will provide an inevitable prelude to further litigation between the parties. In the light of all that has happened, it is my view that a return to the previous status quo, so far as arrangements for the care of [X] and [Y] are concerned, is simply unworkable.
I consider that the best prospect of there being a reduced probability of there being further litigation between the parties is if I make orders along the lines proposed by Ms Lawrence. In reaching this conclusion, I have been strongly influenced by my view that she has been the proactive parent, so far as the care of [X] and [Y] has been concerned.
The presumption of equal shared parental responsibility
I do not consider that the presumption contained in Section 61DA should be rebutted because there are reasonable grounds to believe abuse or family violence has occurred in [X] and [Y]’s family. Accordingly, the next issue to consider is whether the presumption should be rebutted because it would not be in [X] and [Y]’s best interests for it to be applied.
I find this to be a difficult and finely balanced consideration. Notwithstanding my criticisms of Mr Collins, it is clear to me that he loves [X] and [Y] deeply and accordingly he is a parent who is deeply interested in all matters to do with their welfare and care.
In such circumstances, it would be a significant thing to strip him of parental responsibility for [X] and [Y]. Inevitably, such an outcome would send a potent message to Mr Collins that he had no significance, so far as [X] and [Y] are concerned, when the truth is otherwise.
On the other hand, Ms Lawrence also has a valid position. She characterises Mr Collins as a contrary and difficult person. This accords with my own assessment of him. As such, she asserts he is simply impossible to deal with and this reality makes it necessary to confer parental responsibility on one parent alone.
On balance and given the structure of Part VII of the Family Law Act, which emphasises the fact that parents should jointly share duties and responsibilities concerning the care, welfare and development of their children and should, wherever possible attempt to agree about the future parenting of the children, at this stage, I believe it would be premature to exclude Mr Collins from having parental responsibility for [X] and [Y].
In addition, I do not consider that such a decision would deliver an appropriate message to Mr Collins or assist him to come to terms with his responsibilities as a parent. Under the new and controversial regime, these orders will inaugurate.
What should follow from the presumption – Conclusions
Having closely considered the various section 60CC factors, I have also concluded that it would not be in [X] and [Y]’s best interests for there to be either an equal time or substantial and significant time regime so far as Mr Collins’s parenting of the children is concerned. I do not think that either such regime would be in their best interests or practical to implement, particularly if it means the mother must move back to [K].
At this stage, the children need to live predominately in one of the parent’s households and, on my estimation, Ms Lawrence is the more appropriate parent to provide this household. She has a better level of insight into the responsibilities of being a parent and, in the past, has supplied more of the children’s emotional and educational needs
If this case did not involve issues of relocation, I think I would have easily reached the conclusion that a proper consideration of the issues raised by section 65DAA(5) rendered both an equal time and a substantial and significant time regime impracticable for this family, notwithstanding that this was the arrangement for [X] and [Y], which persisted from the date of separation until mid 2010.
In my view, the evidence clearly indicates that the parties’ capacity to implement such regimes has historically been fraught with difficulties. This capacity has become more compromised, since the mother moved to [B]. As what has occurred in the period since amply demonstrates, the parties do not communicate well and have little facility to resolve the type of difficulties, which frequently arise when children have to move often between households.
Sadly, the parties actively dislike one another. As such, they have little facility to empathise with one another. Such a situation will not have a positive impact on the children, particularly [X], who is a child showing signs of psychological vulnerability and psychosomatic stress.
Importantly, the only way there can be an equal time regime (or a substantial and significant time regime) is if Ms Lawrence is compelled to return to live in [K]. In my view, given the circumstances now confronting this family, such an outcome is not reasonably practicable. It can only intensify the stresses in the family. It would negate the mother’s entitlement to live where she wishes.
In my view, none of the applicable section 60CC factors acts as bar to Ms Lawrence’s understandable wish to remain the children’s main provider of care in [B]. In summary, I find as follows:
·The mother has a better insight into the responsibilities of being a parent. This is most amply demonstrated by the fact that she has assumed significantly more of the financial burden of supporting them;
·The children are likely to be more emotionally depended on their mother and so likely to be influenced by her personal state of happiness and fulfilment;
·The children can maintain a meaningful level of relationship with their father, if they live in [B] and he lives in [K];
·The distance between [K] and [B] is not so great that it will substantially affect the children’s rights to maintain a relationship with their father.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the effective negation of a parent’s rights, as a citizen, to live how and where he or she chooses.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 21 January 2011
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