Dumarche and Killon

[2009] FamCA 827

FAMILY COURT OF AUSTRALIA

DUMARCHE & KILLON [2009] FamCA 827

FAMILY LAW – CHILDREN – Parenting – Interim orders that children live overseas with their mother in opposition to the father's views – Best interests principles – Distinction between relocation and temporary transfer

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286
Morgan & Miles (2207) FLC 93-343

APPLICANT: Ms Dumarche

RESPONDENT: Mr Killon

FILE NUMBER: MLC 489 of 2009

DATE DELIVERED: 4 SEPTEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 1 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HOULT

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MS MACMILLAN

SOLICITOR FOR THE RESPONDENT: HOLDING REDLICH

Orders

1. That paragraphs 1, 2 and 4 of the orders made 29 July 2009 are discharged.

2. These orders are deemed to be interim and not final.

3. That paragraph 3 of the orders made on 29 July 2009 is discharged AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing forthwith the names of the children J born … August 1998 and D born … February 2002 from the Watch List for all points of international departure from Australia.

4. That as and from 3 October 2009 (and not earlier), the wife be at liberty to remove the children J born … August 1998 and D born … February 2002 from the Commonwealth of Australia.

5. That the wife is permitted to have the children live with her in Kuala Lumpur, Malaysia for the period from 3 October 2009 until no later than 30 September 2010.

6. That the wife resume living in Australia with the children no later than 30 September 2010 and is restrained from changing their place of residence in Australia upon their return thereafter without further order of the Court or the written permission of the husband.

7. That upon the return of the wife to Australia, failing agreement as to the parenting arrangements about with whom the children shall live, there be liberty to both parties to apply on short notice.

8. That for the period in Kuala Lumpur from 3 October 2009 until 30 September 2010, the children spend time with the husband as follows:

   (a)unless the parties agree otherwise, for 2 weeks of each school term holidays commencing at 10 am on the Sunday after the school terms conclude until 10 am on the Sunday 2 weeks later;

   (b)for a period of one half of the long Summer holidays according to the Australian School System arrangements at times to be agreed;

   (c)for any reasonable period in Malaysia where the husband visits; and

   (d)for such further or other periods as may be agreed.

9. That for the purposes of paragraph (8), the wife:

   (a)at her expense, return the children to Australia in sufficient time to ensure that the children are available to spend the time with the husband under these orders; and

   (b)make the children available to the husband at the commencement of the relevant contact period at her residence and collect them from the husband at her residence at the conclusion of the relevant period.

10. That during the absence of the children from Australia, the wife facilitate liberal communication with the husband with the children as follows:

    (a)by telephone using a nominated land-line and mobile telephone with the husband at his expense, making the calls to that land-line or mobile telephone numbers;

    (b)by email and postal mail; and

    (c)      by “Skype”.

11. That upon arrival in Malaysia, the wife immediately do all acts and things necessary to set up a computer with all necessary technological features to enable these orders to be implemented without delay and advise the husband accordingly.

12. That at least 5 days prior to the departure of the children from Australia, the wife provide to the husband details of the proposed residence and school of the children in Malaysia.

13. That the children live with the husband for the whole of the September 2009 school holidays commencing from 6 pm on the day that school concludes until 10 am on Saturday 3 October 2009 and for that purpose, the husband collect the children from the wife’s residence at the commencement of the period and return them there at the conclusion of the period.

14. That the application in a case filed by the wife on 7 August 2009 and the response thereto filed by the husband on 17 August 2009 be otherwise dismissed.

15. That there be general liberty to apply.

16. That all applications for final orders be otherwise adjourned to a registrar’s hearing on a date to be fixed for the purposes of fixing a final hearing before a judge.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend in respect of both hearing days.

AND IT IS NOTED BY THE COURT THAT whilst these orders are intended to cover the period of 12 months absence, the wife has assured the Court though her counsel that if she is able to finish her contractual obligations prior to the 12 months period, she will do so and return to live with the children in Australia.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 489  of 2009

MS DUMARCHE

Applicant

And

MR KILLON

Respondent

REASONS FOR JUDGMENT

1. This is an interim parenting dispute about whether Ms Dumarche (“the wife’) can take 11 year old J and 7 year old D to live with her in Malaysia for up to a year whilst she is employed there.  Mr Killon (“the husband”) objects to the move.  There is urgency about the matter in the sense that the wife proposes the move in three weeks time.

2. The background to the dispute is that the parties married in 1996 but lived together before then for some years.  They separated in October 2008.  Since then, the children have lived predominantly with the wife.

3. The wife is 46 years of age and an employee of X Company which recently won a tender for a Malaysian project.

4. The husband is 43 years of age and a company director.

5. J was born in August 1998.  D was born in February 2002.  There are no existing parenting orders.

6. The wife said that the Malaysian work was part of her contract.  That is supported by her employer.  The wife is accustomed to overseas travel as part of her work.  This contract may be for between 9 and 12 months.  When the overseas travel occurs normally, the children have either a nanny care for them or assistance from their grandparents.

7. The husband says this move is unnecessary as well as inappropriate because he wants to spend more time with the children rather than less. 

8. The wife filed her application on 7 August 2009 and sought relevantly that until further order, the children live with her and that she be permitted to temporarily relocate the children to Kuala Lumpar for a period not exceeding 12 months commencing on about 25 September 2009.  She also sought some other consequential orders.  There was a proposed holiday trip to China but the wife’s counsel said that that had been abandoned.  The wife relied upon three affidavits filed 7 August and 21 August respectively and one by the company’s managing director filed 7 August 2009.

9. The husband filed a response on 17 August 2009 and relevantly sought that the children live with him during each alternate week from after school Wednesday to the commencement of school on the following Monday in one week and from after school on Wednesday until the commencement of school on the following day in the other week.  The husband also sought some other consequential orders.  The husband proposed as an alternative that if the children did go to live in Malaysia, he would seek interim orders including significant holiday time.  The husband relied upon his affidavit filed 17 August 2009. 

10. There are difficulties in deciding a case such as this where the ramifications are great for the children let alone the adults.  There is not sufficient time to test the evidence and there are a number of disputed facts.  The parties accepted that I could not make findings about their disputed facts.  That does not mean that the decision focuses less on what is in the best interests of the children but rather it means that the Court has less evidence upon which to decide the case.

11. As with all cases, the provisions of s 140 of the Evidence Act 1995 (Cth) apply. The decision is made on the balance of probabilities.

12. Although this is a parenting case where I am endeavouring to subjectively find the solution that will best promote the interests of children, the onus of proof lies with the applicant.

13. The unusual feature of this case is that each party has sought interim orders which are a significant departure from the status quo.  Thus, each needs to prove that their proposals will best advance the interests of the children.  Each also needs to understand that the Court is not bound by their proposals and that this is not simply a choice between the two proposals.

14. The wife’s proposal was that the husband be at liberty to spend two weeks with the children in each of their school holiday periods and that he was welcome to travel to Kuala Lumpar to spend time with them by prior arrangement.

15. The wife also proposed that as the children were computer literate, they could communicate by electronic means including Skype and telephone.

16. In Kuala Lumpar, the wife said that the children would have an opportunity to spend time with children and families from other backgrounds and experience the Malaysian culture and society.  She saw no detriment to the children in maintaining a meaningful relationship with the husband having regard to the time away that she was proposing.

17. The husband’s proposal was that the children live with him for five nights in one week and then one night in the next week.  He suggested that as the wife was required to travel interstate and overseas at various times, rather than what has apparently been happening, he proposed that the children stay with him during the time of the wife’s absence.  Similarly, if he was absent, he would propose that the wife look after the children.

18. Ultimately however, it was proposed that if the wife was insistent on complying with her contractual arrangements with her employer and live in Malaysia, he said the children could live with him.  Counsel for the wife was quick to say that if the children could not go to Malaysia then the wife would not go either.

19. The wife’s proposal, if accepted, would be something of a temporary measure for the children.  They would go about their daily activities as usual such as school.  The major distinction from their current existence is that they would not have personal face to face involvement with their father for periods of about 10 weeks or so at a time.  That of course is on the assumption that the husband did not make a trip to Kuala Lumpar during the school term.  It would otherwise seem that the children would enjoy their father’s company for significant periods of their holiday time if they returned to Australia.

20. The impact upon the children of the 10 week period is therefore important.  There is a significant factual dispute between the parties as to what time the husband has been spending with the children since separation in October 2008.  That issue makes a significant difference in this case. 

21. It seems on the wife’s evidence, presupposing the school term is about 10 to 12 weeks although she suggested 8 weeks, the husband would only miss out on a few days in each term.  On the husband’s evidence, he would miss out on face to face time with the children for up to 30 days in each term.

22. The wife’s evidence is that the husband’s relationship with the children can be continued by the electronic means to which I have referred.  The determination of that issue depends on whether the relationship between the children and the husband would suffer.  How would the children cope with the physical absence of their father if he did not make trips to Kuala Lumpar during school term and the only contact with him would be by electronic means?

23. If the husband’s proposal was accepted, there would also be a temporary arrangement for the children different from what they currently enjoy pending final determination of the parenting issues.  That arises because the husband said that he has until now resisted pursuing the orders he has now sought because of his perception of the reaction of the wife and its impact on the children.  The husband argued that as things have progressed since separation, it is now time for a significant change for the children. 

24. Unfortunately, most of the evidence in this case which would enable me to comprehensibly understand what is happening in the children’s lives and their respective relationships with their parents is shrouded in controversy.

25. Because the facts cannot be comprehensively tested, it is not appropriate that I do more than put in place some orders that will provide for the needs and interests of the children pending the final determination of the matters.  However, as was pointed out in Goode and Goode (2006) FLC 93-286, the pathway is not that simple.

The wife’s evidence

1. The wife said that there was an agreement subsequent to separation that the husband spend one night per fortnight with the children usually a Saturday night.  She said the husband had not sought to spend any additional or midweek time with the children since separation save for the months of February and March 2009 where he sought a few mid-week dinners and some Friday nights.  That seems consistent with what the husband said.  However, the husband’s explanation as to why that was so cannot be explored.

2. The wife said that subsequent to separation and notwithstanding the agreement to which I have just referred, there were “numerous” occasions when the husband cancelled or varied the arrangements at short notice.  She gave an example of that during the 2009 June term holidays when as a result of the husband cancelling his time, she cancelled her business trip and organised three days of holiday program for the children.  The wife’s explanation which is inconsistent with what the husband said was that on the occasions of the cancellations or variations, the husband told her that he had commitments or that he was away from Melbourne.

3. One thing is clear however, the wife has been the person primarily responsible for their daily care and she has managed to structure her work arrangements around the children.

4. The wife said that when she was required to travel overseas or interstate for work prior to separation, a nanny was engaged and the nanny fed and bathed the children.

5. Since separation, the wife said that she had been solely responsible for travelling to and from school with the children, organising their extra-curriculum activities and attending to all of their school needs.

6. Part of the involvement in the daily activities of the children means attending to such things as speech activities as D has some problems.  On the evidence, it seems that the wife has been responsible for all his speech activities as well as attending upon a doctor for some physical problems.  In addition, according to the wife, J has not coped well with the breakdown of the marriage and required attendance upon a school counsellor.  The wife said that J would now prefer to talk over his problems with her rather than a counsellor as the school counsellor recently left the school.

The husband’s evidence

1. The husband asserted that prior to separation he was actively and substantially involved in the lives of the children.  He confirmed the assistance of the nanny and when the wife was away for extended periods overseas, he took full responsibility for the care of the children.

2. Much of the husband’s affidavit related to activities prior to separation.  The wife replied to those statements denying the extent of the activity and asserting that the husband’s role was minimal.

3. The husband’s evidence about the period subsequent to October 2008 was that “initially” the children stayed with him every second weekend on Saturday and Sunday and one night during the alternate week with him taking the children to school the next morning.  The emphasis was on the word “initially” because the husband went on to say that since separation, the wife had gradually reduced his time.  He said she objected to the children staying with him during the middle of the week because of the impact on the children in getting to school and then later changed the arrangement to one night per week but then also required the children to attend their music lessons after school so that his involvement would be limited in any event.

4. To that picture, the wife responded by saying that there had been “an average” of one night, usually a Saturday with the children per fortnight.  She said the husband had the children for an entire weekend only on four occasions since separation.  In relation to the mid-week time, she said the husband initially suggested Tuesday night in each alternate week but because of her work commitments, she suggested a change to the Wednesday.  This apparent impasse has meant that the children have not spent time during the middle of a week with the husband other than three occasions since separation when he has taken them out to dinner.  The impasse can be seen from two perspectives.  The wife said that the husband was not interested whilst the husband said that this was an indication of the wife’s intention to reduce his time.  Importantly, I am not in a position to determine the factual truth.  What I can however determine is that the husband concedes that he has not spent the time with the children that he would have liked and that has now given rise to the application that he has made.

5. To the husband’s assertion of his involvement on weekends with the children, the wife said that she often suggested that he collect the children and take them to basketball on a Saturday morning but that save for three occasions, the husband left the basketball attendance to the wife and collected the children later in the day.  The wife gave examples in March and February 2009 of specific facts.  Each of the examples given suggests that the husband was not perhaps as proactive as he could have been even if there was some substance to his assertion that the wife was trying to keep him out of the lives of the children.

6. The wife went further to assert that contrary to the picture painted by the husband, he usually returned the children between 4.00pm and 6.00pm rather than had dinner with them before returning them to her care.  She said that when she suggested that the children remain with him for dinner, he declined indicating that he either had plans for dinner or needed to work.

7. All of these subtle differences between the positions of the parties have taken place over a space of just over 10 months.  The vagueness of the husband’s evidence about what time he has spent with the children must be matched against the specific details provided by the wife.  That is not a criticism of either party but rather a comment that the picture painted by the wife seems to a very large degree, supported by the husband as to what time he has spent with the children.

8. In relation to the husband’s assertion of the wife trying to reduce his time with the children, the wife made an absolute denial.  She reiterated that it was the husband who had adopted the position of the limitation of time.

9. It will be clear therefore that from the perspective of the children, there has been a clear dichotomy of parenting.  That gives rise to the question of what is the impact upon the children of any change?  The wife said that she did not see a problem for the relationship between the husband and the children if they lived in Kuala Lumpar.  She said her office was located nearby to the school and she would be able to attend the various activities including at short notice, if one of the children was unexpectedly ill. 

1. The wife proposed to return to the former matrimonial home during the school holidays and the long summer holidays and the husband could spend time with the children then.  She pointed to the fact that the husband had sufficient financial resources to be able to travel internationally and was self-employed so he had the requisite flexibility.  Those assertions seem consistent with the husband’s position because he promoted his proposals on the basis that he had the time and the financial resources to look after the children.

The wife’s employment position

1. The wife set out her current employment position and her financial arrangements.  That was very much supported by her employer.  The husband complained that he first became aware of the arrangements by correspondence through lawyers.  In a letter dated 28 July 2009, the husband through his lawyers expressed concerns about the proposals.

The husband’s concerns about the impact on the children of a move to Kuala Lumpar

1. The husband said that during the first weekend in August when the children were with him, they discussed the proposed relocation to Kuala Lumpar.  He said that J told him what the wife had said but that he understood it was only for about six to eight weeks.  He said that when he explained to J that it would be from 9 to 12 months, J burst into tears and remained upset for the weekend.  D on the other hand did not want to discuss the issue and said he would just think about it.

2. The wife said that she had not been secretive about the travel commitments for work.  There is some substance in that having regard to the fact that the wife has always travelled and had the benefit of the use of a nanny.

3. In respect of the particular trip planned for Malaysia, the wife denied that the children were aware of the details prior to the husband being informed.  She denied having directed the children not to discuss the proposal with the husband.  She said that she told them on or about 5 August which was only days before the weekend that the husband referred to.  She said she suggested that they talk to the husband about it.

4. The wife said that on the conclusion of the weekend to which I have just referred, D told her that the husband had asked them lots of questions and that J had been very distressed and cried.  When the wife raised the question with J, he told her that the husband said that the period was 9 to 12 months.  That statement was obviously consistent with what the husband said.  However, on the wife’s evidence, what the children had not been told was that they would be returning home at the end of each term.  The absence of time with their father and with Australia according to the wife was a period of about 8 weeks but I have earlier referred, it might be 10 to 12 weeks depending upon the length of the relevant term.  According to the wife, having explained that to J, he expressed a desire to go and D seemed happy anyway.

5. The wife also said that the children came back indicating that they would not be able to make friends in Kuala Lumpar and there were terrorists in Malaysia who targeted Australians.

Discussion

1. It is apparent on the evidence that the proposed period of time in the lives of these children is modestly short.  This is not a parenting dispute in the context of a relocation of children under which there will be substantial absence of their father in their lives.  All of the indicators are that save for the experience that the children will have of being in a different environment, life will go on as normal but their parents will need to make an extra effort to ensure that connections with Australia are not lost if the move occurs.

2. It is significant in my view that the children are not moving away permanently.  There are no suggestions of any concern about their return.  It is significant that there are going to be opportunities for the children to continue the relationship they have already formed with their father.  The move may place some pressure on the husband to travel to Kuala Lumpar but having regard to the financial position of both parties and the capacity to be flexible in their work life, that does not seem to be a problem.  It is also significant that modern technology including things such as Skype enables children to have good and frequent communication with absent parents in ways that a telephone call or an email could not replace.

3. That leaves the one question about which I was troubled.  I expressed to both counsel my concern about the impact on the children of being absent from their father if they went to Malaysia.  That concern arose out of the fact that the wife said that the relationship with the children and the husband was just beginning to blossom.  An adverse impact on that blossoming relationship may have serious consequences in both the short term and long term for these children. 

4. Pursuant to an order that I made, the parties and the children attended upon Family Consultant Mr S. The purpose of the exercise was to enable me to have some expert evidence about how the children would deal with a number of scenarios as well as to get some insight into how the parties and the children would approach the Malaysia trip one way or the other.

5. One striking feature of the evidence of Mr S was the positive nature of the position adopted by each party. Whilst their respective affidavit evidence was shrouded in negativity about the other person’s parenting role, Mr S said that each was polite, focussed and positive. That augurs well for whatever order is made by the Court.

6. Mr S interviewed J. He described him as a bright, quiet and introspective child.  He did not want to make any decision that would hurt his parents. His view was that he would “go with the flow”. He was hesitant about the overseas trip but felt that once there, he would enjoy it. He said he would miss his father if away from him but would equally miss his mother if he lived with his father. Rather poignantly, he pointed to the problem of having to get up early to go to school if he lived with his father.

7. Mr S interviewed D. This child is much younger than J but he was described as extroverted. He was a confident and outgoing child. He was more positive than J about going to Malaysia saying that it would be fun. As with J, he said he would miss either parent if away from them.

8. To the parties’ credit as parents, each boy declined to provide a message about their views. That must indicate that the children not only have a strong love for each of them but also each accepts that it is the role of their parents to make decisions for them. It also sadly means that the children know that their parents are embroiled in a dispute of which they do not wish to be a part. That message should be carefully heard.

9. Mr S turned his attention to the impact of a move on the boys. The success of the children’s psychological development depended very much upon how the parents approached the parenting role after separation. It does not take an expert to tell us that respect, trust and co-operation in parenting protects a child’s psychological development. Children are more likely to be happy when they are not embroiled in or subjected to the conflict of their parents.

10. Developmentally, for these children at their respective ages, the attachment should already have been formed. If it had not, according to Mr S, it was now too late. Here, that relationship is seen to exist. Mr S said that the separation was not going to affect either the bonding or the development of the relationship. In his view, the impact would be minimal. He thought the “danger period” had passed. That does not mean that the boys would not miss their father or conversely, he them. However, much depends upon how the continuation of the relationship is fostered by each party.

11. Mr S thought on the limited snapshot that he saw, that the wife would foster the relationship between the boys and their father. That was evident by her indication of flying the children back at the end of terms. I also draw that same conclusion from the offer of communication during school terms. Mr S thought that the husband would not undermine the position of the wife and he felt there was no reason to think that the husband would not keep up the contact with the children.

12. The major reservation of Mr S was about the duration of the trip. He thought 6 months was better than 12. He was unable to be unequivocal about the impact in the long term. With that I agree but much also depends upon the extent of the involvement between all parties and the children in the intervening period. The gaps between face to face physical contact are what is important and the consistency of other forms of communication outside of those times. On the evidence as it stands, whilst there may be a quantum argument, it may be that the quality of the relationship between the husband and the children will improve.

13. I conclude from what Mr S said that the temporary nature of the move makes all the difference. This is not a “relocation” in the sense of the word used to connote some permanent restructuring of parent and child relationship. It is simply a case of reorganising the way in which the husband and the children continue their existing relationship.

14. I also conclude from the evidence of Mr S that if I was contemplating a shared care arrangement or a change for the children to live with their father if the wife went to Malaysia without them, it may not be in the best interests of the children because of a number of matters. Those include the husband’s capacity to carry out the daily activities of the children, the change in residential environment which might impact on schooling and just how damaging (if at all) the absence of their mother might be. Each of those three matters needs substantial evidence and for it to be tested before I would contemplate the alternate position proffered by the husband.

15. Counsel for the husband drew to my attention Morgan & Miles (2007) FLC 93-343. That was a decision of Boland J sitting as a Full Court on an appeal from a Federal Magistrate. Her Honour there canvassed the issue of relocation and looked at how the law had changed as a result of the 2006 amendments to the Act.

16. Boland J discussed whether different considerations applied between relocations which were intrastate, interstate, international or local. Her Honour said (at para 91) :

    The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32).  This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move.   The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.  Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered. 

    Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves.  Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests. (emphasis mine)

17. Morgan is distinguishable on a number of grounds. First, it was a move of 144 km by a parent. Secondly, the move was proposed as permanent. Thirdly, there was no argument put before her Honour about whether an international relocation was different in some way to a local move. Fourthly, the appeal was against a discretionary judgment.

18. Having said that, I adopt the views of her Honour set out above as being relevant in any case in which any move will have an impact of the relationship between parent and child.

19. Thus, for the purpose of determining what the impact will be on the children in this case, there are a number of questions to be asked.  What is the state of the respective attachments and in particular that between the children and the parent wishing to move away even for a modest period of time? What are the economic factors at play which would make a substantial difference to the face-to-face contact but also how are the electronic communications to be implemented? What time has history shown would be lost between the children and the parent remaining behind? Having regard to the ages of the children and their emotional development, will they understand the time concept of their absence (for example) during school terms? Could the Court be confident that the parent leaving the area would make a conscious effort to not only ensure that the electronic communication was maintained but also that there were sufficient reminders for the children that they have an absent parent? In essence, can the proposed arrangements ensure the child’s relationship with the parent remaining would be maintained and also fostered?

20. There is no question however that the structure of Part VII of the Act makes Parliament’s intention clear. As Boland J said in Morgan (para 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.

    Whilst any decision must be made on the understanding that the best interests of the children are the paramount considerations, they are not the only considerations.

21. Boland J also pointed out (para 81):

    What the legislation now requires is:

    ·consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

    ·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility

    but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority.  It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

Section 60CC factors

1. I turn then first to the criteria in s 60CC and secondly to the presumption of equal shared parental responsibility.

2. On the limited evidence, I am satisfied that both children are sufficiently attached to the husband and enjoy their time with him so that they are currently benefiting from that meaningful relationship. I do not consider there is a likelihood that the overseas move will affect the benefit the children currently enjoy. There is a very obvious distinction between being able to touch and enjoy the affections of a parent’s company but with the history of the relationship since separation, acknowledged by the husband, it would appear that the children will still benefit from the relationship with their father and it will be meaningful even though they are apart.

3. There is no suggestion in this case that either child is in need of protection from being subjected to, or exposed to, abuse, neglect or family violence.

4. The children have distinctly different relationships with each parent. It is apparent on the material that the wife has been the major carer of the children particularly since the parties separated. On the basis that the children went to Malaysia, nothing would change there. If they were not able to go and I contemplated the proposal put by the husband, I would have to find at this stage that there is not sufficient evidence on an interim basis to warrant any significant change.

5. There is a dispute between the parties about who is and who is not promoting the relationship of the children with the other parent. Without the evidence being properly tested, I could not make any finding on that issue.

6. I can find on the evidence that because of the duration of the trip and the proposed interaction, the children will adapt to the change away from seeing their father.

7. On the basis of the preliminary findings about capacity as parents, I find that the wife has done the bulk of the role and that I am unsure of the extent of the husband’s desire or involvement. On an interim basis therefore, there would be little reason to change the existing roles.

8. Section 60CA provides that when making a particular parenting order, the Court must regard the best interests of the children as the paramount consideration.  Thus, when contemplating the welfare of the children against the desires of the wife to pursue her employment options, any clash must mean that the interests and welfare of the children prevail.  A significant interest for the children is in having a strong and meaningful relationship with both parents but there are other considerations that must be balanced.  In determining what is in the children’s best interests, Parliament has required the Court to look at the factors in s 60CC to assist in making the decision.  I have considered all of the factors and in this truncated hearing, endeavoured to apply all of those factors to the facts provided to me.

9. Having regard to all of those facts, I find it would be in the best interests of these children if they continued to live with the wife and including for a period of up to 12 months in Malaysia.  I find it would be in the children’s best interests to go to Malaysia notwithstanding the separation from their father on the basis that their relationship will not be adversely affected because of the orders I propose to make about contact and communication in the period of that 12 months.

10. Accordingly, I find that the interim orders set out at the start of these reasons are in the best interests of the children.

The presumption of equal shared parental responsibility

1. Having said that, Part VII requires a court to follow a pathway. In my view, that begins with the presumption of equal shared parental responsibility.

2. As I do intend to make parenting orders, s 61DA requires that I apply the 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. This exercise needs to be undertaken before the determination of what parenting order should be otherwise made.

3. Section 61DA(1) provides:

   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.

4. An exception to the application of the presumption is where the matter is an interim hearing. Section 61DA(3) says:

   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.

5. Whilst the intention of Parliament is clear and interim orders should not simply be made brushing aside the provisions of the Act, this is a case where I could not make sufficient findings to enable a decision to be made about the future decision-making processes for these parents.

1. I accept on the evidence of Mr S that the parties will be positive and pro-active about supporting the relationship of the other with the children and as such, the temporary nature of this trip overseas will not adversely affect the children but it is also clear that the communication between the parties over the last 10 months has not been good if not acrimonious.  As such, it is not appropriate that I apply a presumption that the parties have equal shared parental responsibility at this stage.

I certify that the preceding Eighty Four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 September 2009