Degman & Waldrum

Case [2020] FCCA 3426

FEDERAL CIRCUIT COURT OF AUSTRALIA

Degman & Waldrum [2020] FCCA 3426

File number(s): MLC 1643 of 2020
Judgment of: JUDGE HARLAND
Date of judgment: 16 December 2020
Catchwords: FAMILY LAW – relocation – 220 kilometres away – finely balanced case  
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2)(a), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(3)
Cases cited:

AMS & AIF (1999) 24 Fam LR 756

KB & TC (2005) FLC 93-224

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Taylor & Barker (2007) 37 Fam LR 461

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 119
Date of last submission/s: 20 November 2020
Date of hearing: 20 October 2020
Place: Melbourne
Counsel for the Applicant: Ms Bonney
Solicitor for the Applicant: Dwyer Legal City C
Counsel for the Respondent: Mr Nehmy
Solicitor for the Respondent: SWD Legal

ORDERS

MLC 1643 of 2020
BETWEEN:

MS DEGMAN

Applicant
AND:

MR WALDRUM

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

16 DECEMBER 2020

THE COURT ORDERS THAT:

1.The parties have equal share parental responsibility for X born in 2010 and Y born in 2013 (“the children”).

2.The children live with the mother.

3.The children spend time with the father during school terms:

(a)In week one from Tuesday after school until Wednesday before school; and

(b)In week two from Friday after school until Wednesday before school.

4.The children spend time with the father:

(a)For half of all school holidays as agreed between the parties in writing and failing agreement:

(i)With the father for the first half of the school holidays and the mother for the second half of the school holidays in even numbered years; and

(ii)With the father for the second half of the school holidays and the mother for the first half the school holidays in odd numbered years.

(b)On special occasions being the children’s birthdays, the father’s birthday, father’s day, Christmas and Easter as agreed between the parties in writing; and

(c)At other times as agreed between the parties in writing.

5.The initiating application filed 14 February 2020 and response filed 26 February 2020 be otherwise dismissed and the matter be removed from the pending cases list.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE HARLAND:

  1. The mother seeks to relocate with the children to Town B, 220 kilometres away from their current home in City C. The father opposes her application. There are two children of the relationship; X born in 2010, aged 10 and Y born in 2013, aged seven. The parties started living together in 2004,…

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Degman & Waldrum [2020] FCCA 3426
Case
[2020] FCCA 3426
Decision Date

CaseChat Overview and Summary

In *Degman & Waldrum*, the parties, the mother and father of two young children, were before the court concerning parenting arrangements following their separation. The central dispute involved the mother's desire to relocate with the children approximately 220 kilometres away to Town B, where her partner resided, and the father's opposition to this move. Both parties sought orders for equal shared parental responsibility.

The court was required to determine whether it was in the best interests of the children for them to live with the mother and relocate to Town B, or if the mother should relocate without the children, or if the children should remain in their current location. A secondary issue concerned the specific time the children would spend with each parent, particularly in light of the potential relocation and the mother's stated fallback positions.

Judge Harland found the case to be finely balanced. The mother's primary motivation for relocation was to live with her partner, who could not relocate to the children's current city. While the mother argued that relocation would not negatively impact the children's relationship with their father, the court noted that the proposed arrangements would significantly alter the frequency and nature of their contact. The court also considered the mother's evidence regarding her partner's inability to relocate and her fallback proposals, which were presented as less desirable options. The father's involvement in the children's lives and decision-making was also examined, with the court noting instances where he had taken initiative.

The court ultimately ordered that the parties have equal shared parental responsibility for the children. The children were to live with the mother, and specific arrangements were made for the children to spend time with the father during school terms and holidays. The initiating application and response were otherwise dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The parties have equal share parental responsibility for X born in 2010 and Y born in 2013 (“the children”).

2. The children live with the mother.

3. The children spend time with the father during school terms:

(a) In week one from Tuesday after school until Wednesday before school; and

(b) In week two from Friday after school until Wednesday before school.

4. The children spend time with the father:

(a) For half of all school holidays as agreed between the parties in writing and failing agreement:

(i) With the father for the first half of the school holidays and the mother for the second half of the school holidays in even numbered years; and

(ii) With the father for the second half of the school holidays and the mother for the first half the school holidays in odd numbered years.

(b) On special occasions being the children’s birthdays, the father’s birthday, father’s day, Christmas and Easter as agreed between the parties in writing; and

(c) At other times as agreed between the parties in writing.

5. The initiating application filed 14 February 2020 and response filed 26 February 2020 be otherwise dismissed and the matter be removed from the pending cases list.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Background

Background to the litigation

Factually, there is little in dispute. The parties, the mother’s partner and the family consultant were cross-examined. Neither parent raises any concern about risk.BACKGROUND Both parties describe themselves as taking on “traditional roles” during the marriage, with the father being the primary income earner and the mother the primary caretaker for the children. When the parties separated X was four and Y was 15 months old. For the first year after their separation the father spent regular daytime periods with the children on alternate Saturdays and Sundays, and the children spent Wednesdays with the paternal grandmother as the children did not have school or kinder. The father started spending overnight time with the children when they were two and a half and six years old. Currently, the parties live approximately 15 minutes’ drive from each other. The mother says that whilst the children have a close bond with the father she has always been the primary carer and it would not be in the children’s best interests for them to live with their father should she not be permitted to relocate with the children.THE PARTIES’ POSITIONS The parties’ case outlines were prepared on the premise that the competing positions of the parties were that either the mother and children relocate to Town B and spend regular time with the father on weekends and school holidays or the mother relocates to Town B without the children and the children spend regular time with the mother on weekends and school holidays. However, the mother’s case was presented somewhat differently at trial. The mother stated that she would not relocate without the children. This is very much a fall-back position for her and not a proposal. She was very clear in her evidence that as her partner is not able to relocate to City C, continuing to live in separate places will place a strain on their relationship. The mother gave evidence that as a fall-back position, they would look at buying land closer to City C and building a property that would enable the children to remain at their school and for the current parenting arrangements to remain in place, which would also shorten the commute to Town B. That would take some time to find appropriate land and to build. Again, this is not a proposal of the mother’s and is very much what she referred to in oral evidence as “Plan B”. After reserving the decision and considering the evidence, I sought clarification from the parties on this point and also gave procedural fairness with respect to an order that neither party sought in the event the mother is not permitted to relocate the children’s residence. As the mother regularly travels to Town B and is able to work remotely, if orders were made for the father to spend alternate weeks with the children from after school Friday until before school Wednesday and overnight Tuesdays in the other week, the mother would be able to spend a longer block period in Town B rather than needing to return to City C on the Sunday afternoon. Alternatively, the father having the children until Monday before school would also give the mother additional time in Town B. The father said in his material that he wanted to be able to take the children to school on Monday mornings but complained the mother would not agree. Despite this comment in his material, the mother was not cross-examined about this.

Evidence

Evidence Before The Court

Both parties seek orders to exercise equal shared parental responsibility. THE MOTHER’S ORAL EVIDENCE The mother would not concede that spending less time with the father would be a negative for the children. She said if she is able to move with the children they will see their father on alternative weekends and half school holidays or more. She conceded the children’s time with the father would be configured differently. She says they will continue to share their close relationship with him. She said the children do not mention missing their father. That does not mean that they do not and will not if they see him less often. The mother would not concede that the children will miss their father if they only see him on alternate weekends and holidays. She said she was not concerned about the family consultant’s recommendations and said he did not give a reason but just said everything should stay the same. The mother was keen to get her points across and tended to speak over counsel. The father’s Counsel cross-examined the mother about paragraph 50 of her affidavit where she says her relationship with Mr J will likely break down if she is not allowed to move. She said that they will not break up but it will put a strain on their relationship as they will not be able to live the life they want to live and she does not know how long they will be able to manage a long distance relationship. She referred to the little things they will not be able to do not living in the same house. The mother said that the fall-back position of buying land and building a house somewhere closer to where the children can remain at their school and so the spend time with arrangements can remain in place would take years to achieve. The mother was cross-examined about the broad statement in her affidavit that her mental health will be negatively affected. The mother conceded when cross-examined that she told the family consultant she has no mental health issues. She is not on any medication and is not seeing a psychiatrist or psychologist. She does not have any evidence about any impact that the denial of the relocation would have on her mental health. I accept that of course the mother would be unhappy and disappointed if she were not permitted to move, but there is no evidence that this will adversely impact on her parenting capacity. The mother did not agree that the education opportunities are limited in in Town B. She says she chose M School for the children to attend in Town B as it is a Catholic school and she respects the father’s wishes in this regard. She said she has attended the school but has not had a tour and has exchanged emails with the principal but has not met her. She agreed that there are only six students in X’s year. The mother said she has looked at the NAPLAN results and conceded she was aware that it was below the national average but then contradicted herself and said “last time” it was above average. She did know about G School’s scores.

Decision

Reasons for decision

The father denied the allegation that he does not attend the children’s school activities and says he attends sports days, father’s day at school, the children’s swimming lessons and swimming competitions, skit nights and school assemblies when he is able to. When cross-examined he said he arranges his own parent teacher interviews. This is perfectly sensible considering the reasonable length of time the parties have been separated. He also said he makes sure that he attends assemblies if one of the children are to receive an award. With respect to any criticism of the father not attending all the children’s assemblies, many parents in intact relationships would not have a particular reason for doing so as typically school assemblies occur on a weekly basis. DECISION-MAKING There is a dispute between the parties as to whether the father was disinterested in decision-making for the children’s welfare and left all decision making to the mother or whether or not the mother excluded him from those decisions. The mother says she would make the majority of the decisions during the relationship including making and taking the children to various health appointments, arranging school enrolments and after school activities. She said she attempted to involve him in the decisions but that he had little interest. The mother said she has continued to be responsible for making decisions for the children’s welfare. She says she has tried to include the father in those decisions but that the father often does not acknowledge or respond to her requests. The father says that the mother tried to control his relationship with the children and would exclude him from decision-making and has continued to do so except when she sought additional financial support. He says he contributes to the costs of the children’s extracurricular activities and is involved in sports and swimming. The mother confirmed that in her view the father opted out of decision-making for the children and is not interested. She agreed during cross-examination that she had not given any examples in her affidavit material but said that she could. She then conceded that the father enrolled the children in sports one year. She then agreed that it was the father’s decision to send the children to G School as attending a Catholic school was very important to him. Again, she was reluctant to make concessions and reluctantly conceded that the father attended the children’s first day of school. Both parties seek orders to exercise equal shared parental responsibility. THE MOTHER’S ORAL EVIDENCE The mother would not concede that spending less time with the father would be a negative for the children. She said if she is able to move with the children they will see their father on alternative weekends and half school holidays or more. She conceded the children’s time with the father would be configured differently. She says they will continue to share their close relationship with him. She said the children do not mention missing their father. That does not mean that they do not and will not if they see him less often.

Ratio Decidendi

Legal Principle Established

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