DOWEY & MCLAUGHLIN

[2015] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWEY & MCLAUGHLIN [2015] FCCA 361

Catchwords:
FAMILY LAW – Interim parenting – children relocated from (omitted) to Adelaide – where they should live pending final order – what time they should spend with the other parent.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346
Morgan & Miles (2007) FLC 93-343

Applicant: MR DOWEY

Respondent: MS MCLAUGHLIN

File Number: WOC 1068 of 2014

Judgment of: Judge Altobelli

Hearing date: 5 February 2015

Date of Last Submission: 5 February 2015

Delivered at: Wollongong

Delivered on: 10 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Dribbus Kovacevic Lawyers

Solicitors for the Respondent: Westside Lawyers

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS THAT:

CHILDREN

(1)The parties shall have equal shared parental responsibility for the children, namely X (“X”) (DOB: (omitted)) and Y (“Y”) (DOB: (omitted)) in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:

1.1the education of the children – both current and future;

1.2the religion of the children;

1.3the health of the children; and

1.4any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.

(2)The children live with the Mother in Adelaide.

(3)The Mother be permitted to relocate to Adelaide. DELETED

(4)The Mother shall have sole responsibility for making decisions about the child’s day-to-day care, welfare and development during times the child live with or spend time with the Mother.

(5)The Father shall have sole responsibility for making decisions about the child’s day-to-day care, welfare and development during times the child live with or spend time with the Father.

FATHER’S TIME WITH THE CHILDREN

(6)PROVIDED THAT X does not miss school more than 2 days each calendar month, the children live with and spend time with the Father each calendar month for a minimum of 4 consecutive days nominated by the Father 28 days in advance coinciding with the Father’s work roster either;

(a)In the (omitted); or

(b)In Adelaide – (in the event that the Mother is for an unforseen circumstance not able to travel to facilitate contact in the (omitted)); and

(c)At such other times as agreed.

(7)That in order to facilitate Order 6, the Father is to provide to the Mother a copy of his roster annually, clearly marking the days he is available to spend time with the children.

(8)That the Mother shall accompany the children on the flight to Sydney Airport to facilitate the children spending time with the Father as set out in Order 6(a) and that such time is to coincide with the Father’s work roster.

(9)That if the Mother is not able to accompany the children on the flight to Sydney Airport to spend time with the Father as set out in Order’s 6a, 8 and 11, then the Father will (at his own expense) spend time with the children in Adelaide on days coinciding with his 5 consecutive rostered days off.

(10)That in order to facilitate Order 6, 9 and 16.2 the Mother will book and pay for the flights to and from Adelaide at least 1 month in advance of the Father’s time with the children and shall provide the Father with a copy of the flight itinerary and ticket (return) purchased by her. The Father is to reimburse the Mother half of this cost no later than 14 days before the departure date.

(11)That in order to facilitate Order’s 6a, 8 and 16.2 the Mother will be responsible for the cost of the airfare from Adelaide to Sydney and return, for herself and the children, in addition to other transport costs to and from the airports. DELETED

(12)That the Father shall communicate with the children when they are with the Mother via telephone, SKYPE or email at a minimum every second day from 6.30pm to 7.00pm.

(13)That in order to facilitate Order 12, the Mother shall encourage and facilitate such communication and ensure that her mobile telephone is charged and switched on.

(14)That in order to facilitate Order 12, the Mother shall ensure that she maintains an internet plan and SKYPE and email account, to ensure that the children and Father can communicate via SKYPE or email.

(15)The parties agree that school holidays commence the last day of school term and end the day before school resumes.

(16)SPECIAL OCCASIONS (Father);

16.1 “Children’s birthday” – That if the children are not already spending time with the Father on their birthdays, then the Father will celebrate the children’s birthdays with them, either the week before or the week after their birthdays. Such time will continue with the time he is to spend time with the children as per Order 5.

16.2 “School Holidays” – That the children shall spend half of each Adelaide Gazetted School Holiday with the Father if the Father is not rostered to work, as agreed but failing agreement for the first half of each school holiday in even numbered years and for the second half of each school holiday in odd numbered years.

16.3 “Christmas” – As follows;

(i)    If the Father is not rostered to work, that the children shall spend Christmas with the Father from 10am Christmas Eve until 6pm Christmas Day; and

(ii)If the Father is rostered to work, the Father shall spend time with the children the week before Christmas on days as agreed for a period of not less than 32 hours.

16.4 “Easter” – As follows:

(iii)If Easter falls during the school holidays and the Father is not rostered to work, then the children shall spend time with the Father from 10am Easter Saturday until 6pm Easter Sunday;

(iv)If the Father is rostered to work, the Father shall spend time with the children the week before Easter on days as agreed for a period of not less than 32 hours.

(17)Both parents shall encourage the children’s relationship with the other parent.

(18)That neither party shall denigrate the other party or their family in the presence of or within the hearing of the child and will use their best endeavours to ensure that no third party does so.

(19)That the parties shall treat each other with respect at all times during changeover and throughout all communication.

(20)That each parent shall keep the other informed of his or her current residential address and contact telephone numbers and will advise the other party in writing of any change to these details no less than 48 hours prior to any change of residential address and within seven days of any change of the contact telephone numbers.

(21)That both parties are authorised by these Orders to receive directly from the children’s pre/school a copy of the children’s pre/school reports, school photos (at that party’s cost), school newsletters and any other written notification from the children’s pre/school.

(22)That each parent be entitled to attend all events involving the children, including but not limited to:

(a)sporting fixtures;

(b)extra-curricular activities that allow for parental attendance or participation;

(c)any organisation or club which the child/ren is a member;

(d)school functions and events, parent/teacher interviews, school concerts and assemblies, canteen duties, swimming, athletics and sporting carnivals, and

(e)Other functions held at or organised by the school that allow for parental attendance or participation.

(23)That the parties shall keep each informed as soon as is reasonably practicable of:

(a)Any medical problems or illness suffered by the children, whilst in their care;

(b)Any medication that has been prescribed for the children;

(c)Any medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(d)Any social, school or religious functions which the children are to attend;

(e)Any contact telephone number;

(f)Any other matter relevant to the welfare of the children.

(24)The matter be transferred to the Federal Circuit Court of Adelaide for mention on 28 April 2015 at 10:00am before Judge Kelly.

THE COURT NOTES THAT:

A.These orders are made in a context where it is necessary to make orders urgently for the purpose of providing stability for the children as well as a regime for the Father to spend time and communicate with them.  However, not all the relevant evidence was before the Court and thus it may be necessary to revisit these orders at some future time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 1068 of 2014

MR DOWEY

Applicant

And

MS MCLAUGHLIN

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The matter before me concerns X, who was born on (omitted) 2010 and is, therefore, four, nearly five;  and Y, born (omitted) 2011, who is three.  The matter was argued before me on 5 February.

2. The Applicant in this case is the children’s father.  He is 48 and describes himself as a (occupation omitted).  He lives in (omitted), which is in the (omitted), but works in (omitted).  I think whilst he’s not technically a fly-in-fly-out worker, the shift work that he undertakes makes it impracticable for him to return home at the end of each shift, which is described as five days on and five days off.  The Respondent in these proceedings is the children’s Mother.  She is 40 years old, describes herself as an employee of the (employer omitted) and lives with the children in Adelaide.

3. I provide the following chronology that appears largely to be uncontentious.  In August 2014 the Mother went to Adelaide for four nights.  On 21 August the parties separated, albeit under the same roof.  On 23 September 2014 the parents attended a mediation.  An agreement was reached, or purportedly reached, the terms of which is in contention.  Indeed one must query whether there was an agreement at all.  In any event, on 13 October 2014 the Mother signed a residential tenancy agreement in Adelaide.  On 26 October the Mother and the children flew to Adelaide.  On 21 November 2014 the Mother applied for an Intervention Order in a court at Port Adelaide, allegedly based on an incident involving the Father that occurred on 12 July 2014.

4. The Mother’s central contention is that the Father agreed for her and the children to relocate to Adelaide and, hence, that this is not what is technically described as a unilateral relocation case.  The Father’s central contention is that there was no such concluded agreement and that, in fact, the relocation was a unilateral one.  Obviously, the issue for the Court to determine, and to determine quickly in order to provide these children with some stability, is where the children should live and what spends-time-with arrangement there should be with each of their parents.

The Parties’ Proposals

1. The competing proposals were as follows.  The orders sought by the Father on an interim basis are contained in his Application filed 19 December 2014.  In effect – and putting aside the orders that are not relevant to the present Application – he seeks orders for equal shared parental responsibility, for the children to live with the Mother in the (omitted) area and to spend time with him each month for a minimum of four consecutive days coinciding with his roster.  There are a number of ancillary orders, including recovery orders and other things, that are not pertinent.

2. The Mother’s proposal is contained in her Response that was filed on 4 February 2015.  She seeks an order that the children live with her in Adelaide and spend time with the Father in a manner that I will describe shortly.  In addition, she seeks a number of ancillary orders as well. 

The Evidence

1. The evidence before the Court consisted of the Affidavits of the Father.  There are two of those.  There is a lengthy Affidavit of the Mother of 2 February 2015.  Tendered in evidence and exhibited to the Court was a letter of 22 October 2014 from the Father’s solicitor to the Mother enclosing a set of consent orders that he asserts  represents the agreement reached at mediation.

The Applicable Law

1. The applicable law is contained in part VII of the Family Law Act 1975 (Cth). In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s. 60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the procedure to be adopted in cases such as the present one.

   68. The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

4. The Full Court, in Morgan & Miles (2007) FLC 93-343, made a number of comments relevant to these circumstances in paragraphs 82 to 88:

   82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it 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.

Discussion

1. I discuss the evidence as follows.  Whilst the issue of whether or not there was an agreement about relocation between the parents, and if so on what terms, is an important one the outcome of this issue does not necessarily determine the case.  The Court has to make a decision that is in the best interests of the children, though, of course, not necessarily to the exclusion of the interests of the parents.

2. The submissions about the alleged agreement consumed most of the time of the submissions made before the Court.  The impression formed from the scant evidence available is that the parents were certainly negotiating the terms of a relocation.  They may well have reached an agreement in principle, in the sense that the issue of relocation per se was not the outstanding or unresolved term of the agreement, but had not reached agreement about the spends-time-with arrangement.  Now, this is pivotal of course, because the Father contends that any such consent to relocation was entirely dependent on a spends-time-with arrangement that was acceptable to him.

3. There is some evidence of what he intended the spends-time-with arrangement to be.  That evidence is exhibit R1.  It is reasonably contemporaneous to their mediation. The spends-time-with arrangement that he contemplated, as set out in exhibit R1, would have meant that the children could spend time with him each calendar month for a minimum of five consecutive days, coinciding with the Father’s work roster, either in Adelaide or in the (omitted). It then contains details about travel arrangements.  By way of summary, it appeared to propose that the Mother would bear most of the burden of the travel arrangements.

4. There is no contemporaneous evidence of what the Mother’s intended spends-time-with arrangement was.  Her proposal in the present Application is contained in her Response.  To the extent that it was contended on her behalf on 5 February that the orders she seeks now represents the spends-time-with arrangement she contemplated at the time, that is, at the time of relocation, the Court rejects this out of hand. Such contention is plainly implausible.  And, indeed, I would go so far as to say it is far-fetched. It is simply inconceivable that the Father would agree to relocation on the terms contained in the Mother’s Response.  More significantly, however, it is inconsistent with the Mother’s own evidence at paragraphs 85 and 87 of her Affidavit.  The concerns that she expresses there were about who should pay for the cost of travel and the unworkable amount of time that the Father was proposing to spend with the children, particularly in circumstances where X started school this year.

5. Whether the parents reached an agreement or not, and if so on what terms, in relation to relocation and spends-time-with may well be a matter for more detailed consideration at a final hearing, where the relevance of this evidence will probably extend to more than just the issue itself.  At the moment, however, what seems an uncontested fact is that the Father seems to have agreed to relocation provided the children spend five consecutive days per calendar month with him coinciding with his work roster.  He thought that that was in the children’s best interests at the time.

6. In view of this, the focus turns to a number of other considerations, including the following.  Firstly, the impact on the children of yet another upheaval in their lives is a great concern to the Court, especially as regards X, who has started school.  Even if this Court were minded to order the children back to the (omitted) it would not be before the end of term 1, by which time the children will have been in Adelaide for over six months. 

7. Secondly, whilst issues of practical difficulty and expense most certainly arise in relation to interstate spends-time-with arrangements, the concerns that the Mother had at the time, and in particular I refer to paragraph 85 of her Affidavit where she says, “I was on Centrelink benefits,” are no longer as prominent now that she is working.

8. The reality is that this Court has little information about the finances of either parent but does know that each is now working.  When that evidence is filed in due course it may well be that any issues relevant to their financial capacity may need to be revisited.  In the circumstances, however, the Court is prepared to at least tentatively conclude on an interim basis that if spends-time-with is ordered it should be on the basis of the cost being borne equally, at least for the time being.

9. The third issue is that the frequency of time should be not less than once per calendar month.  That is what the Father contemplated.  There is certainly no evidence from the Mother that she demurred from that at the relevant time. 

10. Fourthly, the length of the spends-time-with is problematic.  The only way that the Father could have five consecutive days is if X missed school.  This is disruptive to her.  But, on the other hand, X is only in reception, which I take it is the equivalent to kindergarten in New South Wales, and maintaining a long-distance relationship with her Father is also important to her.

11. For the time being, and again on an interim basis and recognising that these issues may need to be revisited again in the future, the Court is prepared to accept that missing no more than two days per calendar month adequately balances the competing considerations that have just been mentioned. 

12. Fifthly, the Court categorically rejects the Mother’s proposed spends-time-with order.  In her Response filed on 4 February she seeks orders on an interim basis that there be Skype communication weekly, that the Father spend time with the children during the school holidays and in Adelaide.

13. In circumstances where I reject her contention about the risk of harm to children, her proposal does not give these children any chance of maintaining a meaningful relationship with their father. 

14. Sixthly, I reject the Mother’s contention about family violence and risk of harm to the children because the very facts that she relies on to found those concerns were in existence at the time that she says there was an agreement to justify her relocation. 

15. To the extent that the Mother in this case seeks to portray herself as a woman fleeing violence, at an interim level she failed to convince the Court that her actions were anything other than opportunistic.  Indeed, an emerging issue in this case, and one that will no doubt form the focus of much attention at the final hearing, is her attitude as a parent, particularly in terms of fostering the children’s relationship with their father. 

16. It should be apparent that, despite my trenchant criticisism of the Mother, again, based on the limited and untested evidence before the Court, nonetheless, this Court believes that it is in the best interests of the children that they remain with their mother in Adelaide.  It must follow that this matter would be transferred to the Federal Circuit Court of Australia in Adelaide for further case management and determination. 

17. The issue becomes:  what is the basis of the spends time with arrangement with the Father?  In this regard, the Court intends to use as a template for an interim order the consent order that was proposed by the Father in exhibit R1.  The difference, however, will be as follows.  Firstly, instead of the five days per month that he proposes, it will be for a minimum of four days, provided X does not miss school more than two days each calendar month. 

18. In addition, the cost associated with travel between Adelaide and Sydney is to be borne equally.  There is to be Skype contact and there will be a number of ancillary orders that provide for special occasions, as well as school holidays.  There is no basis on the material before the Court to justify the presumption of equal shared parental responsibility being rebutted. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  9 March 2015