Collins and Lawrence
[2010] FMCAfam 893
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & LAWRENCE | [2010] FMCAfam 893 |
| FAMILY LAW – Interim arrangements for parenting of children aged 7 & 5 – unilateral relocation – mother has moved children’s place of residence 75 kilometres in rural South Australia – mother has moved for employment reasons – father seeks return of children to locale where he lives – is this a situation of emergency – best interests – consideration of applicable section 60CC factors. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC93-286 MRR v GR [2010] HCA4 C & S [1998] FamCA 66 Morgan & Miles [2007] FamCA 1230 D and S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 |
| Applicant: | MR COLLINS |
| Respondent: | MS LAWRENCE |
| File Number: | ADC 2718 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 16 August 2010 |
| Date of Last Submission: | 16 August 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Collins - in person |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | Andrew B Thiele & Co |
ORDERS
UNTIL FURTHER OR OTHER ORDER:
The children [X] born in 2003 and [Y] born in 2005 live with the mother.
The father spend time with the children at times to be agreed between the parties and failing agreement:
(a)On alternate weekends during school terms from after school on Friday until 6:00pm the following Sunday commencing Friday 20 August 2010;
(b)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half of each holiday; and
(c)At other times to be agreed between the parties.
The father collect the children at the beginning of each such period referred to in order (2) hereof at their school or such other location as agreed between the parties and the mother collect the children from the father at the end of each such period at the [K] Post Office or such other location as agreed between the parties.
The matter is fixed for final hearing before Federal Magistrate Brown on 16 & 17 December 2010 at 10:00am NOTING 2 days allowed.
That on or before 2 December 2010 the applicant father do pay the setting down fee or file an exemption certificate in respect thereof.
That the applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 November 2010.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 11 November 2010.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
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
Introduction
Mr Collins “the father” and Ms Lawrence “the mother” are the parents of [X] born in 2003 and [Y] born in 2005. This case concerns interim arrangements for their care.
The parties have never been married. They did however have a committed relationship with one another and lived together, in [K] (a town north-northwest of Adelaide), from sometime in either 1998 or 2000 until they separated in early 2007.
There have been proceedings on foot, for some time, in the District Court at Adelaide, regarding the division of their property pursuant to the applicable de-facto relationships legislation. A major component of their property is two houses owned by them, in [K]. The de-facto property proceedings are scheduled for trial next month.
There have been no formal orders in place regulating arrangements for the care of [X] and [Y] since the parties separated. This does not seem to be reflective of the parties having an easy and trusting parenting relationship with one another. To the contrary, their relationship seems to be a conflicted one, a situation exacerbated by the long running de-facto property proceedings.
It is common ground between the parties that, until very recently, [X] and [Y] were parented in what is commonly called a shared parenting regime, living with their father on Monday and Tuesday of each school week and for one alternate weekend. This amounts to six days a fortnight. They lived with their mother for the remainder of the fortnight.
The mother’s position is that this arrangement is not working for the children and they are emotionally stressed by it. She is also critical of the father for his level of parenting skills and his refusal to communicate effectively with her about issues to do with the children.
However, this is not the reason why these current proceedings have been commenced. The mother is [an education worker]. Until recently, she was employed [at A].
On 15 July 2010, the mother’s solicitor wrote to Mr Collins in the following terms:
“We are writing to advise you, as a matter of courtesy, of a change of circumstances for Ms Lawrence.
Ms Lawrence received notification yesterday that she had been appointed [omitted] at [B]. We appreciate it is very short notice, however Ms Lawrence will be starting that new position on Monday, 19th July 2010 and it follows from that there will have to be a change of arrangements regarding the children.
On that basis the children will obviously be moving to [B] (a town north of Adelaide) with Ms Lawrence and will be attending school there.
We must say from the outset that this appointment is not a permanent appointment but only until the end of this year so there is every possibility (unless the position is extended) that Ms Lawrence will then be moving back to [K] at the end of the year but obviously we will keep you advised on that.”[1]
[1] See Exhibit 1 to the father’s affidavit filed 20 July 2010
On this basis, it was proposed that the children should live predominantly with the mother in [B] and spend time with the father on alternate weekends, during school terms and for half of each school holiday period.
The letter also indicated that the proposed move would advance the mother’s career and provide her with greater financial security. The writer noted the mother’s position that she was currently paying all of the children’s expenses and other joint accounts, without any assistance from Mr Collins.
Mr Collins wasted no time in responding to this letter. He advised on 16 July 2010 that he strongly objected to the children leaving [K]. He raised his concern that it would be unsettling for the children to have to start at a new school and make new friends.
More importantly, he objected to the proposed interruption of the current shared parenting regime. He wrote as follows:
“Father’s generally provide a different view of the world to their children then [sic] mothers do.”
In these circumstances, he proposed that the children live predominantly with him and spend every second weekend with their mother. He refuted any suggestion that he did not contribute appropriately towards the children’s financial support.
As the wife’s solicitors letter foreshadowed, the mother moved with [X] and [Y] to [B] on the weekend prior to 19 July 2010. This led to Mr Collins commencing the current proceedings on 20 July 2010.
In his application, the father sought orders that would see the parties having equal shared parental responsibility for [X] and [Y] and for the children to live with each of their parents for essentially equal periods of time each week. Importantly, in the context of these proceedings, he sought an order that the children return forthwith to the [Primary School A] to resume their primary education.
As requested by him, the father’s application was listed urgently on
28 July 2010. The mother responded to the application on 26 July 2010. She sought interim orders that, if made, would see the children living predominantly with her, by necessary implication, in [B].
Her application was silent in respect of the presumption of equal shared parental responsibility. It has subsequently become apparent that it is the mother’s position it would not be appropriate or in the children’s best interests for the presumption to be applied to [X] and [Y]’s circumstances.
It is [omitted] a drive of around one hour between [K] and [B]. From Mr Collins’s perspective, it is a significant distance and an onerous drive, particularly for children of the ages of [X] and [Y]. He is also concerned about the possible expense arising from such a trip.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives, both in terms of spending time with them and in respect of the making of important decisions regarding their children.[2]
[2] See Goode & Goode (2006) FLC93-286 at 80,901
One important decision, potentially pertaining to a child, is a change to that child’s living arrangements, which make it significantly more difficult for the child concerned to spend time with a parent [Family Law Act 1975 section 4].
Another such decision relates to a child’s education, both current and future. The father complains that he was not consulted, in any way, about the children’s change of residence to [B] and their enrolment at the primary school there.
The father is critical of the mother for attempting to foist an important decision, regarding the children and their relationship with their father, on him unilaterally. By necessary implication, he asserts that this was extremely poor parenting, on the mother’s part, and the court should not condone it.
On the other hand, the mother’s position is the presumption of equal shared parental responsibility is rebutted in this case and any proper consideration of [X] and [Y]’s best interests, even at this interim stage, dictates that they should live predominantly with her in [B].
Given the distance between [B] and [K], a short one when the magnitude of continental Australia is considered, the mother asserts that the children will be able to maintain a sufficiently meaningful level of relationship with their father, if they see him regularly on weekends and for extended periods of time during school holidays.
These proceedings are designed to resolve this dispute between the parties at an interim or interlocutory stage. Necessarily, given the nature of the proceedings, the outcome is a provisional one, which is subject to possible change at final hearing.
The legal principles to be applied
The service of [X] and [Y]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their children’s best interests.
The provisions, in the Family Law Act1975, 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 [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 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 court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
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)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The Full Court of the Family Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, even at the interim stage, make findings about them [see Goode & Goode (supra) at 80,903].
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 [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.[3]
[3] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
Given the structure of Part VII of the Family Law Act, 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.
On the other hand, pursuant to the principles contained in the Family Law Act, 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. It has been said that relocation cases need careful analysis.[4]
[4] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
It has been pointed out that it is artificial, in the extreme, to determine whether a case involves issues of relocation on the basis of distance alone. Rather, what is important is the consequences of the move or proposed move for any child affected by it.[5]
[5] See Morgan & Miles [2007] FamCA 1230 at paragraph 91
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned. For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many 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.[6] As Kay J pointed out in Godfrey v Saunders[7] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[6] See D and S V (2003) FLC 93-137 at 78, 280
[7] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a 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. High rates of divorce are also an incident of modern Australian life.
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 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.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one. As one of the components of a child’s best interest 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 any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[8]
The evidence
[8] See C & S [1998] FamCA 66
a) The father’s case
The father relies on a brief handwritten affidavit of himself. In this affidavit, he emphasises the longstanding nature of the arrangement for [X] and [Y] to live in [K] and attend the [Primary School A]. He deposed as follows:
“The children have been relocated away for their principal place of residence, their school, their friends, their father without any prior process of consultation or discussion regarding this matter and their welfare and interests. And all this disruption on the basis of a temporary relocation to which I strongly object.”[9]
[9] See father’s affidavit at paragraph 12
In addition, the father has tendered a letter purportedly written by [X], in which she allegedly indicates that she is missing her friends in [W] (a town north-northwest of Adelaide) and wishes to return there. The letter has been typed, although apparently personally signed by [X] herself.
The mother is suspicious of the provenance of this letter. She is also concerned that Mr Collins has been apparently willing to involve [X] in the dispute between her parents. She doubts that the letter is a spontaneous expression of [X]’s views.
The father has acted on his own behalf throughout these proceedings to date and has prepared his own affidavit material. As such, he is at a disadvantage so far as the mother is concerned, as she has been legally represented. He has not formally responded to the wife’s more compendious affidavit material.
Mr Collins’s application first came before the court on 28 July 2010. On this occasion, I was concerned that the parties had not attended any process of family dispute resolution. As a result, I referred the parties to a conference with a family consultant, at the court, on 4 August 2010. This conference failed to assist the parties to reach agreement in respect of any issues in dispute between them.
Since the first listing of Mr Collins’s application, the mother has filed more affidavit material. The tenor of much of this material is highly critical of Mr Collins, particularly his attitude towards the responsibilities of being a parent and his prior behaviour towards the mother.
The father has not formally responded to the many formal criticisms made of him. These criticisms extend to his behaviour throughout almost all of the parties' relationship. To his credit, the father indicated to me that he had no specific criticisms of Ms Lawrence, apart from how she had handled the relocation issue, and he otherwise regards her as a “good mum”, who takes appropriate care of [X] and [Y] and loves them very much.
b) The mother’s evidence
The mother relies on the following documents:
i)An affidavit of herself filed 26 July 2010;
ii)A further affidavit of herself filed 12 August 2010;
iii)An affidavit of Ms M filed 12 August 2010; and
iv)An affidavit of Ms W filed 12 August 2010.
The last two witnesses are respectively a [occupation omitted] employed at the [A] (Ms M) and a [occupation omitted], who has worked with the mother both at [A] and now at [B] (Ms W). Mr Collins regards both witnesses as being partisan towards the mother because they are her work colleagues. Given the untested nature of each of their evidence, there is significant substance to Mr Collins’s warning.
The mother’s case is that she has been, until recently, under a great deal of financial pressure. Mr Collins is a self employed [tradesman], apparently earning a modest income. She was employed four days per week at [W] earning about $1,000 gross per week.
As a result of the discrepancy in the parties’ income and care arrangements for [X] and [Y], the mother was assessed to pay child support to the father. Mr Collins has been living in the former family home. The parties’ other property has been leased and the rent received used to pay the mortgage on the property occupied by the father.
In addition, the mother has deposed that she has been paying other of the parties’ joint expenses, particularly the rates on the two properties concerned. She also asserts that she pays the majority of the children’s education expenses, particularly [Y]’s childcare costs. She had been living in rented accommodation in [K].
On 25 June 2010, the position [at B] was advertised. The mother applied for the position and was advised she had been successful on 14 July, commencing the following Monday, 19 July. It is a temporary position with the possibility of becoming permanent from the start of 2011.
The chief advantage of the position is that it will provide the mother with an extra $5,000.00 in salary for the remainder of the year. From the wife’s perspective, it is also a good opportunity, as it will allow her to improve her [omitted] skills and take on a leadership role in a [workplace omitted], something she says does not happen very often in the rural areas of South Australia. Accordingly, from Ms Lawrence’s perspective, the position was too good to refuse.
The mother was entitled to apply for the position. I accept that the turn around between advertising, offer and acceptance was short. This is not the mother’s fault. She can perhaps be criticised for accepting the job, without prior reference to the father, particularly in terms of the implications of the job for how the parties cared for their two children.
The mother has now rented new accommodation for herself in [B]. It is also her case, given she has accepted the [B] position, that the Education Department has now filled her previous position in [K] and she has no job to return to in the short term.
Accordingly, the mother characterises the situation confronting her as being one of emergency, which justifies her current application to the court. No doubt, the father would say the emergency is of the mother’s own creation and she should not have applied for the job in the first place.
In Morgan v Miles,[10] Boland J said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
[10] Morgan v Miles [2007] Fam CA 1230
Essentially, it is the mother’s case that she was faced with a situation of growing financial emergency, in [K], to which the father’s actions contributed. It is her case that her decision to move, with the children, to [B] was a reasonable and proportionate response to the crisis confronting her, particularly given that the distance between [B] and [K] is not particularly great and will not necessarily terminate all forms of relationship between the children and their father.
The reasonableness of her decision is also posited on the basis of her assertion that she has been the children’s primary provider of care, in the past, and a proper consideration of the relevant section 60CC factors will indicate that the children’s interests will be best served if they live predominantly with her, necessarily as a result of her current circumstances, in [B]. It is also her case that the presumption of equal shared parental responsibility is rebutted.
The mother characterises the father as an emotionally abusive and controlling person. It is her case that he will not communicate with her, at all, in respect of the care of the two children concerned. It is also her case that the extreme level of tension and dysfunction in the relationship between her and Mr Collins has resulted in both children, but particularly [X], displaying signs of emotional stress.
The mother has deposed that, in August of 2008, [X] returned from her father with finger mark bruises on her arms and thereafter began to behave in an agitated manner. This resulted in the mother seeking professional advice for [X] from a mental health counsellor. I have been provided with an inconclusive patient note in respect of this counselling. I note however there were six counselling sessions before [X] was referred back to her treating general medical practitioner.
From May of 2009, the mother says [X] began scratching at the top of her head, causing sores to appear, which did not heal because of [X]’s continual scratching. The principal at [Primary School A] was concerned about this behaviour. The mother believes this behaviour is as a result of emotional stress.
The mother also characterises the father’s parenting as being marked by lapses of attention. In particular, she says [Y] burnt his toes, whilst with his father, in late May of 2010. He required medical treatment. The mother is critical of the father for not telling her about the circumstances in which [Y] sustained this injury.
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.”[11]
[11] See Ms M’s affidavit at paragraphs 10-15
Ms Lawrence describes the children as being confused about their current relationship with their father. She says at times they want to see their father and at other times they are unwilling to do so. It is her evidence that the children always return excitedly to her. The mother also deposes that the father has discussed the parties’ property proceedings with the children, in a way which will encourage the children to have a negative view of her.
Assessment of section 60CC factors
a) The primary considerations
The mother does not specifically state that the father has been abusive to either child. However, it is clearly her position that both children have been injured, whilst in their father’s care and he has been unwilling to provide her with any account of how these injuries happened. In addition, it is her position that she left the relationship because of the father’s controlling and disparaging attitude towards her.
At this stage, I am unable to resolve definitively these significant issues, which the father has not specifically denied, perhaps because he initiated these proceedings and has not filed any further evidentiary material. However, the allegations remain serious ones, which are concerning to me.
It is clear to me that the children currently have a meaningful relationship with their mother. They spend the majority of their time in her care. She is also an active presence in their lives, largely because she works at [omitted].
The children also spend a great deal of time in their father’s care. The mother’s evidence is that the children’s relationship with their father is somewhat problematic. At this stage, I am unable to resolve this issue. However, it would appear likely that the children have a significant relationship with their father. Certainly, this is Mr Collins’s position.
If the mother and children live in [B], [omitted] I am satisfied that the children could maintain a meaningful level of relationship with their father, if they see him regularly on weekends and during school holidays. This might not be the most perfect arrangement, so far as the father is concerned, but the children are unlikely to forget their father between such visits and the relationship will remain strong for each of them.
b) The additional considerations
The children are too young for their views to be central in this case. I have some concerns that the letter allegedly written by [X] can be said to be a spontaneous demonstration of her preference. On balance, given the evidence of Ms M and Ms W, I think it more likely that she is a troubled and torn child. This view is also supported by the fact that [X] has had a course of six counselling visits.
Ms Lawrence asserts that she has been the children’s primary carer. She deposes as follows:
“During the relationship I was responsible for the everyday needs of the children. I would give them breakfast, dress them, play with them, do their washing, feed them, bottle feed them, bathe them, read to them and get up to them at night. I also worked part time during this time and as well as doing the above I got things ready for child care and did the drop offs as well as the pick ups. I did play softball during that time but as soon as I came home I was basically back on duty again. If I required anytime to do something of a personal interest then I relied on family friends to baby sit the children.”[12]
[12] See paragraph 8 of the mother’s affidavit filed 26 July 2010
As previously indicated, the father does not criticise the level of care provided by the mother to the children. In these circumstances, it would seem highly probable that each of the children has a very close relationship with their mother, although I am not in a position to conclude definitively that she is what is usually described, in social science terms, as their primary carer. I am satisfied however that their relationship is a close and loving one.
I have very little evidence about the nature of the children’s relationship with their father, apart from the evidence provided by the mother herself and those associated with her. I appreciate that neither Ms Lawrence nor her colleagues can be described as either dispassionate or disinterested witnesses. However, I believe that I would be imprudent to dismiss their evidence, particularly that of Ms M, who has extensive experience of working with children, in an educational setting.
The tone of the mother’s evidence is that she has wanted the children to have a close and loving relationship with their father and, as such, she has been supportive and encouraging of the children seeing their father regularly. However, it is her case, that over time she has had more and more concerns about such an arrangement. It is also the flavour of her case that Mr Collins has imposed his will on her, as to what he thinks is the best arrangement for the children, particularly because it has suited his own emotional needs.
Ordinarily, I would easily reach the view that the mother’s decision to change the children’s place of residence and schooling was symptomatic of an impaired ability, on her part, to support the children having a relationship with their father.
However, I do not think that this is necessarily the case here. I accept that the mother was genuinely confronted with an emergency situation, when the [omitted] position came up at [B]. I accept that it would be financially difficult for the mother to pass up the opportunity in [B].
Prior to mid-July of 2010, it cannot be said that the mother has stood in the way of the children maintaining their relationship with the father. Both children have spent frequent and extended periods in the father’s care. Accordingly I do not believe that the mother’s acceptance of the position in [B] was a pretext, on her part, to disrupt the children’s relationship with their father.
By necessary implication, it is the father’s position that it will have a deleterious effect on [X] and [Y], if they continue to live in [B], with the mother and the six/eight night per fortnight regime is brought to a close.
I acknowledge that this represents a change in the children’s circumstances, but it does seem likely to me that [X] and [Y] derive a considerable component of their emotional sustenance from their mother. This will be available to them whether they live with their mother in either [K] or [B].
In addition and more importantly, the children will be able to see their father regularly, whatever is the outcome of these proceedings. What will change will be the extent of time involved. In my view, it will still be open to the father to have a qualitatively meaningful relationship with the children, through seeing them regularly on weekends and during school holidays
It is the mother’s case that it will be very difficult for her to return to [K], in the short term, because her [omitted] position there has been filled [omitted] until the end of the year. Accordingly, if I accede to the father’s position, it will deepen the level of financial crisis currently confronting the mother.
This cannot be a good thing for either [X] or [Y], as it is the position that, up to this stage, the mother has been providing more of the children’s financial needs than the father. It will also intensify the mother’s antipathy for the father, as she will inevitably conclude that his actions have imperilled her and the children’s financial security.
During the course of the hearing, Mr Collins indicated that he would pay one half of the amount lost to the mother’s salary, if she was unable to keep the [omitted] position at [B], as a result of the outcome of these interim proceedings.
With the greatest respect to Mr Collins, I do not think that this proposition was thought through and I doubt its validity, particularly if the mother’s evidence is to be accepted that she has paid more of the parties’ joint expenses, in the period since separation, than the father has.
I accept that the mother acted precipitately in accepting the position at [B]. However, once this decision was made by her, it is hard to see how it can be unmade without serious consequences for the best interests of [X] and [Y] and without complete disregard for Ms Lawrence’s own interests, particularly her financial security.
In my view, an appropriate response to the mother’s action is to fix an expedited final hearing of the parties’ competing applications. If this can be coordinated with the time at which her temporary placement at [B] will conclude, it may provide an opportunity for the court to revisit the current situation, if the children’s best interests demand it, particularly when more evidence is likely to be to hand. If the proceedings are fixed for hearing in December, this will mean that the current arrangements will be in place for around eighteen weeks until final hearing.
It takes about an hour to drive between [B] and [K]. Parents living in the large metropolitan centres of Australia are not likely to cavil at drives of this duration to spend quality time with their children. In this context, I must be careful not to unduly place restrictions on the mobility of a parent, particularly if I find that the various factors detailed in section 60CC favour that parent to be the main residence providing parent for any children concerned.
Given Mr Collins’s concessions, I have no reason to doubt the capacity of the mother to provide for [X] and [Y]’s emotional and intellectual needs. For the reasons already provided, I have some reservations about the father’s capacity in this regard.
The presumption of equal shared parental responsibility
I have endeavoured to summarise the current nature of the parties parenting relationship. I appreciate that the evidence available from Mr Collins is limited. It is clear however that he is aggrieved at the mother’s recent behaviour and she is resentful that he would attempt to frustrate her ambition to [work at B].
It is also clear to me that the relationship between the parties is currently tense and mistrustful. I have also evidence, particularly from Ms W, which leads me to conclude that the party’s difficult relationship currently has ramifications for the emotional wellbeing of the children, particularly [X].
In all these circumstances, I have come to the conclusion that it would not be appropriate to apply the presumption of equal shared parental responsibility to the parties care of [X] and [Y]. At this juncture, I do not think that the parties’ current level of parental relationship will sustain such an arrangement.
This being the case, the provisions of section 65DAA are not engaged. Rather I must consider what is likely to be the best outcome, at this interim stage, for [X] and [Y], bearing in mind the various factors, as I have outlined them, pursuant to section 60CC.
Conclusions
At this interim stage, as at the final hearing, the best interests of [X] and [Y] are the paramount but not sole consideration. Ms Lawrence has a right to move to and live wherever she wishes but that right must defer, if the welfare of any child concerned will be adversely affected. However, Ms Lawrence need not demonstrate compelling reasons, as to why she wishes to change the children’s place of residence.
Rather, what I am required to do is weigh and evaluate the competing proposals of each of the parties against the relevant provisions in the Family Law Act, particularly section 60CC and determine from that evaluation what the best outcome is for the children concerned.
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.”[13]
[13] Morgan & Miles ibid at paragraph 74
I am satisfied that the interests of [X] and [Y] will be best served if they continue to live with their mother in [B], so that she may continue in her position [at omitted] there.
I am satisfied that Ms Lawrence is a competent and devoted parent and, on balance, it is more likely to be unsettling for the children, if she is compelled to return to [K], against both her better judgment and will, than for the children to remain in her predominant care in [B].
Having considered the applicable section 60CC factors, I have come to the conclusions that [X] and [Y]’s interests will be best served if they live in the predominant care of their mother. It is impracticable for Ms Lawrence to move back to [K] in the short term. She has no means to support herself financially in the township. In addition, she has made a reasonable proposal as to how the children may maintain their relationship with their father.
It was foolish of the mother to act in the way she did, knowing the father’s likely reaction. However, the distance between [K] and [B] is not extreme. In particular, the distance is not so great that it will inevitably deprive the children of having a significant level of relationship with their father.
At this stage, I do not think it is reasonably feasible for the mother and children to live in [K] and for the six/eight nights per fortnight regime to be re-implemented. This can only occur if the court completely abrogates Ms Lawrence’s entitlement to pursue the career opportunities of her choosing.
In addition, I do not think it would serve the best interests of [X] and [Y]. Such an outcome is likely to lead to the children being exposed to more rather than less conflict between their parents. I am satisfied that there are some worrying indications that [X] is currently not coping well with this stress.
I will fix the parties competing applications for final hearing on 16 & 17 December 2010. In conjunction with this hearing, I will order that a family report be prepared. This will examine the current psychological and developmental needs of the children. It will also enable the court to conduct a more exhaustive examination of the evidence, which both parties may want to lead. The date of the hearing is around eighteen weeks away.
During this period the children will be able to spend time with their father frequently. Accordingly the move will not result in a termination of a worthwhile relationship for the children. The distance between [B] and [K] is not so great that insuperable logistical difficulties will arise from the move preventing the children seeing their father regularly.
In addition, because of the circumstances of the case, the children’s arrangements for care are amenable to being changed in due course, if the evidence at the final hearing indicates that the children should be returned to the [K] area and possibly the predominant care of their father, or some other arrangement is appropriate.
In my view, although this outcome is a provisional one, it will serve the best interests of [X] and [Y], providing them with an appropriate level of stability, as well as ensuring they maintain a meaningful level of relationship with their father. As Kay J observed the intent of the legislation is to promote a meaningful level of relationship between a parent and child, not necessarily the optimal level of relationship.
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 one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 20 August 2010