DUNBAR & PACKARD
[2013] FCCA 2390
•17 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUNBAR & PACKARD | [2013] FCCA 2390 |
| Catchwords: FAMILY LAW – Costs – where ICL seeks father pay one half of costs based on his financial circumstances – where order for costs made. |
| Legislation: Family Law Act 1975, ss.60CC, 65DA, 117 |
| MRR & GR [2010] HCA 4 Goode & Goode [2006] FamCA 1346 Cowley & Mendoza [2010] FamCA 597 Collu & Rinaldo [2010] FamCAFC 53 Heath & Hemming (No.2) [2011] FamCA 749 Telfer & Telfer (1996) FLC 92-688 Re David (No.2) Re Costs (1998) FLC 92-809 |
| Applicant: | MR DUNBAR |
| Respondent: | MS PACKARD |
| File Number: | BRC 7200 of 2012 |
| Judgment of: | Judge Purdon-Sully |
| Hearing dates: | 9 & 17 December 2013 |
| Date of Last Submission: | 17 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 17 December 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Ms C Dart |
| Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous orders and parenting plans be discharged.
That the child, X born (omitted) 2003 (“the child”) live with the mother.
That the parents have equal shared parental responsibility for the major long term issues of the child.
That the parents are to consult with each other about long term decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's school; relocating the residence of the child so that existing parenting arrangement become impracticable; or a significant medical intervention for the child.
That except in the event of an emergency, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility on the following basis:
(a)The parent proposing to make a decision (“originating parent”) will give the other parent details of the decision that needs to be made, what decision they propose to make and the reasons why they propose the decision be made in a particular way;
(b)The other parent will respond to the originating parent, if they wish to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)The originating parent will consider any feedback given by the other parent by reference to the best interests of the child; and
(d)If the parents are not able to come to a joint decision, they shall participate in family dispute resolution as soon as practicable thereafter, with the originating parent to initiate such process within seven (7) days by nominating a panel of three (3) possible family dispute resolution practitioners (“FDRP”). If the other parent fails to choose one (1) FDRP within seven (7) days, the originating parent may choose one.
That the child spend time with the father at all times as may be agreed between the parties, but failing agreement, each alternate weekend from 4.00pm Friday until 4.00pm Sunday.
That the child live with the mother and the father for school holiday periods as follows:
(a)The first half of the gazetted Queensland school holidays in even numbered years with the mother and in odd numbered years with the father; and
(b)The second half of the gazetted Queensland school holidays in odd numbered years with the mother and in even numbered years with the father.
That for the purposes of these Orders, school holiday time shall commence:
(a)when the child’s time with a parent falls in the first half of the holidays from 10.00am on the day after school term finishes and concludes at 5.00pm on the day calculated to be half of the holidays;
(b)when the child’s time with a parent falls in the second half of the holidays from 5.00pm on the day calculated to be half of the holidays when spending time shall end at 5.00pm on the day before the school term recommences;
(c)school holidays shall be deemed to commence at 10.00am on the day after the school term finishes and concludes at 5.00pm on the day before the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
Special days
That the parent whom the child spends time with in the second half of the Christmas school holiday period shall have the child in their care from 5.00pm Christmas Eve until 12.00pm Christmas Day.
That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:
(a)On the child’s birthday with the parent he is not already living with on that day:
(i)If a school day, from after school until 7.00pm;
(ii)If a non-school day, from 12.00pm until 5.00pm;
(iii)With that parent to be responsible to collect and return the child.
(b)With the father on Father’s Day weekend from 4.00pm Friday until 4.00pm Sunday and if that is a weekend that the father would not ordinarily have the child in his care, then the father shall forego the next weekend of time;
(c)With the mother on Mother’s Day weekend from 4.00pm Friday until 4.00pm Sunday and if that is a weekend that the mother would not ordinarily have the child in her care, then the mother shall forego the next weekend of time.
That the child shall communicate with the mother when he is with the father during school holidays each Tuesday and Thursday at 7.00pm, with the mother to initiate the telephone call.
That otherwise, the child shall communicate with the father at times that are agreed between the parents and failing agreement as follows:
(a)By telephone between 7.00pm and 7.30pm on each Tuesday, with the father to initiate the call;
(b)By webcam or Skype at least once a fortnight at a time suitable to the child;
(c)By email at all reasonable times; and
(d)By regular mail.
That the child be permitted to call the parent he is not living with at all reasonable times and the parent whom he is with shall assist him to make any calls he requests.
That when the child is communicating with the other parent each parent shall:
(a)ensure that the child is available to receive the telephone call;
(b)arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and
(c)ensure that the child has privacy during his communication with the other parent.
That should either parent be unable to care for the child as is provided for in these Orders, or as may otherwise be agreed between the parties, that parent be responsible for making the appropriate alternate arrangements for the child to be cared for.
That in the event that the child is scheduled to live with or spend time with a parent and that parent is unavailable to care for the child (for example due to work or other unforseen commitments), it is the responsibility of the parent who is scheduled to have care of the child to make appropriate arrangements for the care of the child during the period of their unavailability.
That neither party is to denigrate or insult the other party or their family in the presence or hearing of the child and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the child and shall remove the child from any environment where same is occurring.
Changeovers
That changeovers for the purposes of the child’s time with the father shall occur as follows:
(a)Changeovers before and after school shall occur at the child’s school and shall include any after school hours care that the child attends and/or extra curricular activities that the child may attend;
(b)All other changeovers at the (omitted) service station.
Health and schooling
That the child continue to be enrolled with and attend (omitted) Primary School.
That the parties share equally the costs of any additional school expenses for the child, including but not limited to school uniforms, school books, camps and excursions.
That father be forthwith listed as a parent and emergency contact with any school and/or any other care provider for the child.
That the parties shall keep the other informed of any school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and the option to purchase school photographs and this order shall serve as such authority.
That the parents shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
That each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent.
Parenting orders program
That within twenty eight (28) days of the date of these Orders the mother and the father complete a Parenting Orders Program with Relationships Australia (telephone (omitted)) or Foundations (telephone (omitted)) or such other organisation that offers a similar program.
That the mother and the father provide to each other their certificate of completion within seven (7) days of receiving same from the parenting orders program provider.
Other
That by way of contribution to the legal costs of and disbursements incurred by the Independent Children’s Lawyer, the father pay the sum of $3,825.50 to Legal Aid Queensland by no later than 4.00pm on 17 June 2014.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That Orders 1 to 5, 12 to 15 and 19 to 25 inclusive were made by the consent of the parties.
B.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Dunbar & Packard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 7200 of 2012
| MR DUNBAR |
Applicant
And
| MS PACKARD |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
These proceedings relate to competing parenting applications under Part VII of the Family Law Act 1975 as amended (“the Act”), involving X, born on (omitted) 2003 (10 years and nine months of age).
X is the only child of the Applicant father, Mr Dunbar and the Respondent mother, Ms Packard.
X is separately represented in these proceedings by Ms de Simone.
The father instituted the current proceedings by way of Initiating Application on 13 August 2012 following the mother’s unilateral relocation with X to Adelaide in South Australia.
At the time of that relocation, X was living on the (omitted) in the primary care of his mother, attending the (omitted) State School and spending regular time with his father.
It is unchallenged evidence before the court that the mother’s relocation was without the consent of the father.
By order of this court made on 13 September 2012 (“the September Orders”) the mother was ordered to return X to Queensland by the commencement of the Queensland school term for term four in 2012. Further orders were made to assist her in relation to her resettlement costs by the father paying a bond in the amount of $1,500.00 to the mother within two weeks of the date of the Order. Orders were made on an interim basis that the child live with the mother and spend time with the father as set out in Order 5 of the September Orders which I do not propose to detail, save that that order was made that in the event that the mother resided within the (omitted) metropolitan region, X would be re-enrolled at the (omitted) State School and the father would spend the time as set out in Order 5 and, in the event that she resided within 100 kilometres of the father’s residence, then the father’s time would be as set out in Order 6, and that is, in fact, what happened.
The mother returned to Queensland and took up residence at (omitted), with X attending the (omitted) Primary School.
In accordance with Order 6 of the September Orders, the father has been spending each alternate weekend from 5.00pm Friday to 5.00pm Sunday with X and he also has four weeks of the Christmas school holiday period. There is also provision for phone time and changeover arrangements.
Further orders were made by consent on a final basis on 1 October 2013 (“the October Orders”) which provided that X would live with the Respondent mother, with the parents to equally share responsibility for the major term issues to do with X. The October Orders also provided for some phone time and the regularising of that, and there were some fairly standard specific issue orders in relation to health and schooling and the exchange of information.
The October Orders also provided for the time that X would spend with his parents over the Christmas school holiday period.
The mother is now in part-time employment after endeavouring, on her evidence, to obtain work for over 12 months.
The father is in full-time employment on the (omitted) which appears to be secure employment.
The mother has not re-partnered. She resides in shared accommodation in the (omitted) area.
The father resides in a property that he owns on the (omitted) which he previously shared with his former partner. Their relationship ended last year.
Proposals
There is no issue that X will continue to live with the mother. The issue is whether he can live with her in Adelaide where she wishes to relocate, or whether X should continue to attend his current school and spend regular time with his father in accordance with the current regime of time, that is, each alternate weekend and during the school holidays, which is the proposal of the father and the proposal of the Independent Children’s Lawyer (“ICL”).
Whilst the father was originally seeking an equal time regime and that X be re-enrolled in his former school, the (omitted) State School on the (omitted), he abandoned that proposal at the end of the trial, sensibly, given the evidence in relation to the mother’s employment and the practical difficulties that his proposal would pose for the mother and X, including a change of schooling.
The orders sought by the ICL, supported by the father, are set out in a minute of orders handed to the court. If I made those orders, then the September Orders would be discharged.
The orders sought by the ICL, supported by the father, concern X’s time with his father and provide that he will spend each alternate weekend from 4.00pm Friday to 4.00pm Sunday which is roughly the current arrangement and that the parents would equally share the school holiday periods.
There is also provision for special occasion time such as Christmas, birthdays and on Father’s and Mother’s Day. There are orders for communication between the parent with whom the child is not living during school holidays. There are orders for changeover arrangements.
The orders sought by the mother are detailed in [87] et seq. in her trial Affidavit filed on 3 September 2013. If I made those orders, then she would be permitted to relocate X’s residence to South Australia and X would thereafter have some phone time with his father.
The mother sets out at [90] the contact he would have in Adelaide, namely, on the giving of two weeks notice by the father, X would be able to spend time with his father for a weekend with either the father to fly down to South Australia and stay within 50 kilometres of the mother’s residence or the child could be flown to the (omitted) or Brisbane to stay with his father.
In terms of school holidays, the father would spend, on the mother’s proposal, some school holidays as set out in [91] of her Affidavit and that would either be within 50 kilometres of the mother’s residence or on the (omitted) at the father’s residence. Christmas holidays would be shared equally as set out in [92] and [93] of her Affidavit.
The mother then goes on to set out the changeover arrangements in relation to facilitating X’s flights between Adelaide and the (omitted) and/or Brisbane. I do not propose to go into those in any detail.
Further at [102], the mother provides for the opportunity for the father, on notice, to spend some time with X for a weekend halfway during the gazetted school term and with respect to school holidays, the mother goes on to provide for the holidays other than Christmas and that would be that X would spend time with his father at Easter, July and September/October school holiday periods, however if the father is not able to take off time from his work, then she sets out what the arrangements will be.
The mother then goes on to provide at [106] and thereafter what the arrangements would be in the event that the court did not permit X to reside with her in Adelaide and, in those circumstances, the mother is seeking that she be permitted to live within 200 kilometres of the (omitted). She sets out the time that X would spend with the father, which would be from 6.00pm Friday to 6.00pm Sunday on the weekends that the father is rostered off. However, those proposals were prepared at a time that the father was engaging in some work away from the (omitted).
The mother then proposes that the father would have some holiday time which she sets out in [110] and thereafter, which is essentially half the school holidays as I understand it.
There are some other specific issue orders that the mother seeks that I do not need to detail.
Material relied upon
The father relies upon:
a)Initiating Application filed on 13 August 2012;
b)Affidavit of the father filed in support on that date;
c)Affidavit of Ms R his former de-facto partner filed on 13 August 2012;
d)Affidavit of Ms C, the paternal grandmother filed on 13 August 2012; and
e)Further Affidavit of the father filed on 25 September 2013.
The mother relies upon:
a)Response document filed on 7 September 2012;
b)Affidavit of mother filed on 3 September 2013;
c)Affidavit of her sister, Ms E filed on the same date;
d)Affidavit of Mr D, her father filed on the same date;
e)Affidavit of Ms S filed on 3 September 2013;
f)Affidavit of the mother filed on 3 September 2013;
g)Affidavit of the maternal grandmother, Ms M filed on 3 September 2013; and
h)Affidavit in reply filed on 17 September 2013.
The ICL relies upon two reports of Mr S. The first was filed on 3 September 2013. The other report which was released on 23 November 2012 and was admitted into evidence and made Exhibit 5.
I have also considered the exhibited material.
The evidence
I have had the opportunity to consider the tested evidence.
I do not intend to make any general comments about the evidence other than to observe that, to the credit of both parents, X appears to be a delightful young boy.
This is not a case about the parents not having the capacity to appropriately meet his day-to-day needs.
This is not a case about the parents not loving X and their love not being returned by him. Mr S, who had the privilege of interviewing X, reported him to be a delightful child. Both parents have evidenced a strong wish to be involved in his life.
The case is about which proposal will serve X’s best interests given that the mother’s primary proposal will effect a significant change for X and will reduce the amount of time that he spends with his father at a time when X is keen to continue that time, if not increase it.
Mr S prepared two reports for the assistance of the court. I propose to rely upon Mr S’s evaluation and recommendations to which I accord significant weight, together with the expanded oral evidence at trial as an evidentiary basis for the findings I propose to make with respect to the parenting issues and upon the opinions expressed by him to inform and explain those findings.
There has been a significant change since Mr S prepared his second report filed on 3 September 2013 in that the father is no longer engaged in work away from the (omitted). At the time that Mr S expressed his conclusions and recommendations in that report, Mr Dunbar had moved to work in the (employer omitted), thereby altering the current arrangements with X which Mr S, in the context of his recommendations, viewed as significant at that time.
I accept the father’s evidence that the move away from the (omitted) was a temporary move for the purpose of enabling him to earn some good money in the (employer omitted) and to get his financial position on a surer footing as a consequence of the breakdown in his relationship with his former partner.
Some background
In terms of the background to this matter, I rely upon the matters set out in the Case Outline document filed by the ICL.
Briefly, the parties commenced a relationship in 2001. X was born on (omitted) 2003. In May 2003, the parties moved to a unit at (omitted) on the (omitted). They separated a few months later in June/July 2003.
Proceedings were initiated by the father in the Southport Magistrates Court in September 2003. However, the parties were able to reach agreement and they filed consent orders at that time that provided for X to remain in the primary care of his mother and to spend some alternate weekends with his father and some school holiday time.
In October 2003 the mother unsuccessfully applied for a Domestic Violence Order.
In March 2004 the parents were reconciled and for a period of time lived in (omitted).
Final separation occurred in November 2004 when the mother and X moved in with the maternal grandmother.
It appears to be unchallenged that the members of the mother’s family were at the time living on the (omitted), save that the maternal grandfather had moved to Adelaide a month before the parents’ final separation.
The mother’s parents are separated, however she maintains contact with her family. She has two sisters, Ms I and Ms S. Ms I moved to Adelaide in 2005 or thereabouts and Ms S then moved to Adelaide in 2007, with the maternal grandmother then moving to Adelaide in (omitted) 2011, which meant that all of the mother’s family were then residing in Adelaide or in the Adelaide vicinity.
In 2007 the mother commenced a relationship with Mr M and in 2007 she moved in with her mother with whom she lived with a period of time.
It was in 2007 that the father also formed a relationship with Ms R and that became a live-in relationship in 2008.
In 2010 the mother raised with the father the possibility of her moving to Adelaide. However, the father refused to allow X to move to Adelaide with her and no agreement was reached between the parties at that time.
In (omitted) 2010 the mother moved in to live with the paternal grandmother.
The following year in 2011, the maternal grandmother moved to Adelaide.
If we fast forward to (omitted) 2012 the mother moved to Adelaide and as I said earlier, at the commencement of these reasons, that was done without the father’s consent. She acknowledged that. He was told in July that she had relocated. Shortly thereafter the father initiated these proceedings.
In (omitted) 2013 following her return, the mother, after a lengthy search, obtained part-time work at (employer omitted). She continues in that employment.
The father separated from Ms R. He has however continued to reside on the (omitted) save for that period when he was working in the (employer omitted).
Legal principles and approach
In making parenting orders for children, their best interests are of paramount consideration. In considering what orders I should make in X’s best interests, I am required to follow the legislative pathway set out in the Act.
The principles that I am required to apply in informing my discretion as to what orders I should make in the best interests of X and the pathway that I am required to follow are well-known and do not bear repeating.
In the Case Outline document filed by the ICL and served upon the parties, the ICL details at Part F the authorities that she relied upon and those authorities are MRR & GR [2010] HCA 4, a High Court decision and the Full Court decisions in Goode & Goode [2006] FamCA 1346, Cowley and Mendoza [2010] FamCA 597 and Collu & Rinaldo [2010] FamCAFC 53.
Those principles and the relevant case law in relation to parenting matters including that category of cases known as “relocation” cases, has been conveniently summarised in the decision of Kent J in Heath & Hemming (No.2) [2011] FamCA 749.
In the circumstances of this case, having outlined the competing proposals, I am proposing to firstly consider and assess the relevant evidence adduced by the parties and make findings about the primary and additional considerations set out in section 60CC of the Act and then consider the issue or parental responsibility.
In relation to that, both parties agree that it is in the best interests of X that they equally share parental responsibility for long-term decisions. In that regard, there is a pathway in the Act provided by section 65DA.
Finally, I shall outline my conclusion and the orders that I intend to make in X’s best interests.
Some agreements
The parties agree that they will attend a parenting orders program. I am satisfied that that is an appropriate order that should be made given the evidence before the court.
I accept the submissions that have been made by the ICL with respect to the relevant considerations. Those submissions have been outlined in the Case Outline document filed by the ICL, but also in the oral submissions of Ms Dart, Counsel for the ICL. I propose to adopt those and shall refer to them in the course of my discussion of the relevant considerations and the findings that I intend to make in this matter.
I neglected to indicate that there were some further orders that were sought by Ms Dart, the ICL, that do not appear in her minute and those orders are that the father be listed as an emergency contact on X’s enrolment form at his school and also as a parent and she seeks a further order that each parent be responsible for arrangements to be made for X during the school holidays if, for some reason, they are still in employment at that time. Those two orders are agreed.
There is a further order that X attend (omitted), his current school. If I do not make the orders sought by the mother in her primary application, then she consents to an order that X attend (omitted). I understand that the father also agrees to that.
Discussion
As I said, this is not a case where the parents are not able to appropriately care for X. X is doing very well in their care.
There are clearly benefits to X having a meaningful relationship with both of his parents. He already has a strong relationship with his parents and it is important that that relationship continue. The development of a meaningful relationship for X is more likely to continue on the proposal of the ICL supported by the father than it is on the mother’s primary proposal which will see X separated from a loved parent for significant periods of time.
The second primary consideration is not a relevant consideration in this matter.
In relation to the additional considerations with respect to, firstly, any views expressed by the child, it is clear, from the interviews that were conducted by Mr S with X, that X evidenced a view that he is close to both of his parents.
Mr S noted at [31] of his report dated 3 September 2013 as follows:
“I am of the view however that X would miss his father immensely and unless generous time is facilitated.”
Further, the ICL submits, as set out in her Case Outline document at [23] and [24] of the same report:
“He presented as a happy boy, going easily between his parents and during a joint interview with his parents, I could hear him singing cheerfully in the background. He was relaxed and amicable and did not display any anxiety, apart from during his interview.
During this interview, X made it clear that he thought the best situation for him was one in which he got to see both parents as much as he could. He did not express any clear wishes about living in Adelaide or living in Queensland, other than to emphasise that he wanted to able to see both of his parents.
For him, the ideal situation would be living half time between them, although he was realistic that this would not occur. If he was living in Adelaide, he would like to see his father as much as he practically could there.”
I have also had regard to the matters that X raised during his interview with Mr S in the first report that was undertaken, noting that his reaction to his mother’s announcement was that he was “speechless” and “he didn’t know what to say”.
Mr S went on to note at [74] of the report as to whether he wanted to go, he said “a little bit”, referring to the fact that he had not seen his mother’s family for some time but he felt “not good” about leaving his father.
At [79] of the same report, X described to the report writer the following:
“He had found it a bit difficult being in Adelaide. He said one of his cousins annoyed him a lot. He didn’t like the school ‘because it wasn’t a good school’. He liked living down there because it was ‘a lot cheaper for Mum’. He saw his grandmother and grandfather down there, describing his grandfather as ‘a good old man’.
I place significant weight on X’s views. The evidence of Mr S was that the views expressed by X were that he wanted as much time as possible with his parents and Mr S’s evidence was that that was a reliable indication of his views and he saw no reason that X should not be afforded the opportunity to spend as much time as possible with both his parents.
I find that the weight that I attribute to those views supports the proposal of the ICL, supported by the father.
Clearly, X is going to spend more time with his father on the proposal of the father than he is on the mother’s primary proposal which would see him relocate a significant distance away from his father.
In terms of the nature of X’s relationships with parents and others, I find that X has strong bonds with each of his parents and has positive views about them.
The evidence of Mr S, in his first report, was that X was wanting to spend more time with his father and I have canvassed at some length his views.
X also has a strong relationship with his paternal grandmother and step-grandfather with whom he has spent a considerable period of time whilst he has been living in Queensland, and the paternal grandmother has assisted in his care.
X also seems to have a positive relationship with members of his maternal family who reside down in Adelaide. There is no suggestion that he is not able to continue that relationship with them on the proposal of the father and the ICL. Clearly, as a consequence of his historical care arrangements, which have seen him reside primarily on the (omitted), and his care arrangements and the involvement of the paternal grandparents in that, he has stronger attachments, I am able to conclude, with members of the father’s family than possibly members of the mother’s family. That is not to suggest that those relationships are not important, but there is no evidence on the father’s proposal or the ICL’s proposal that those relationships cannot be nurtured given the regular contact, on the evidence of the mother and also her mother, that he has with them.
On the evidence of the maternal grandmother, it is nightly telephone calls and there are also some visits from time to time and the mother has ensured that there are annual visits for X and her to Adelaide to spend time with her maternal family. I accept the submission of Ms Dart that there is no indication that the maternal family cannot continue to travel and/or maintain the contact that they have in recent years since they relocated at various stages to Adelaide.
In relation to the extent to which each of X’s parents have taken or failed to take the opportunity to participate in decisions to do with his long-term issues and to spend time and communicate with him, I accept the submissions of Ms Dart for the ICL. The father has spent regular time with X and he has been involved in his life. Whilst he may not have been involved in attending parent-teacher nights, in my view, when the evidence is considered over all, nothing significant turns on that. The evidence is that he has been involved in decision-making in relation to the school and he has been significantly involved in extra-curricular activities for X, as has his parents and there is no evidence to suggest that he is not, overall, a devoted father who is very keen to participate fully in decisions and the arrangements for X and to spend regular time with him.
Further, the evidence is that the father pays assessed child support. The evidence is that prior to him paying assessed child support, whilst there were some issues that the mother raised on her evidence, the parties seem to have had an informal arrangement and that has now been formalised through the Child Support Agency. There is no evidence that the father has not met his obligations in that regard.
In the orders that were previously made, the father complied with those orders in relation to providing the mother with the funds to enable her to return with X to Queensland and, in the context of some suggestions that were put to the father today during the course of evidence in relation to what financial support he may be able to assist her in maintaining regular time with her family, he did not flinch when he was invited to provide some contribution.
Section 60CC(3)(d) is a significant issue in this matter and that is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or other persons, including grandparents.
The effect of the proposal of the mother is to alter a settled arrangement in circumstances where things were not settled for this child when the mother relocated to South Australia.
It is the impact of the mother’s proposal which is the significant issue here because it will, on her primary proposal, involve a change of schooling for this child. The mother accepted it would be the fourth change for X in the past 12 months at a time when he has some educational challenges to which his parents are responding by way of private tuition.
It will mean another change in residence for him and it will importantly mean that his time with his father will be reduced at a time when he is anxious or has evidenced a desire to increase that time with his father and I refer, in that regard, to [81] of Mr S’s report where he clearly indicated that he would like to have more time with his Dad and there is no suggestion in the updated report that those views have changed.
That change will be effected at a time when there is no evidence from the mother to support the basis upon which she seeks to relocate, that is, to provide her with a career, with better employment prospects and improve her financial situation. There is no evidence to support her evidence in that regard.
There is also no evidence to suggest that if I refuse the mother’s primary application that she would relocate in any event. Her evidence today was that she would never leave X.
I accept the submission of Ms Dart that if X relocated then he would miss his father immensely. He would also miss his paternal grandmother in particular, and step-grandfather who have been involved in his life.
I accept the submission of Ms Dart that it is a concern for the court that following the mother’s return to Brisbane the paternal grandmother’s time had been reduced. The mother was not able to provide any satisfactory explanation, certainly an explanation that the court would be prepared to accept, as to why that has happened.
It is difficult for me to accept that she was not able to return telephone calls. I accept that that evidenced some lack of insight in relation to the importance of ensuring that X continued regular communication with a person with whom he has a positive relationship. It must be remembered in the context of the history of this matter that for a significant period of time the mother lived in the household with the paternal grandmother and so X was having regular time with her.
I also accept that the evidence in relation to the mobile phone in the toy box is an unusual explanation and an explanation in the end that is difficult for the court to accept. It is hoped that the mother would be more proactive, in future, in ensuring that telephone calls are returned and that X is afforded every opportunity to maintain regular contact with his paternal grandmother.
I accept the submission of Ms Dart that whilst the mother is a loving mother and she has a strong focus on ensuring that X’s day-to-day needs are met, those particular issues are more relevant in the context of an application to relocate where we have a child who is anxious to spend more time with the father and the impact of the mother’s proposal on him would reduce that time.
I accept the submission of Ms Dart that there are a number of unknowns on the mother’s proposal in terms of how it will all progress for her if she relocated to Adelaide, both in terms of accommodation, work arrangements, the impacts for X and there is no evidence or no guarantee that her circumstances will improve. I accept that there may well be negative effects for X as a consequence of that.
On one view, the mother evidenced some level of naivety, and I say that respectfully of her, but some level of naivety in relation to her plans and her level of insight into the impact that that would have on a child whose primary relationships are with her and with the father. It evidenced some level of naivety in relation to the impact for this young child of, again, moving residences, but importantly, attending his fourth school in 12 months.
In terms of the practical difficulties, obviously if the mother relocates to South Australia that will impact upon the ability of X to spend regular time with his father; certainly the amount of time that he has enjoyed to date and which the father seeks will continue on his proposals.
It will be impractical for X to spend equal or substantial and significant time with his father if he moves to Adelaide and it will be impracticable for him to spend the amount of time that he is currently spending with his father which is less than substantial and significant time.
There is also a concern about the financial issues, particularly given the financial constraints of the mother. She will, in effect, be giving up employment in the hope that she obtains other employment in Adelaide, notwithstanding the significant difficulties she outlined in her evidence in relation to her obtaining employment in Queensland. It may well be that she engages in a course of study for a period of time which will mean that she is out of the workforce for at least some period while that happens.
I accept that on her proposal there will be a cost in travelling to and from Adelaide, notwithstanding X being able to probably travel as an unaccompanied minor, given that he is 10 years of age. He will be 11 next year.
I also accept that it would be expensive for the father to travel to Adelaide and spend time with X. It would not just be a question of the airfares that he would have to fund, but also he would have to obtain accommodation whilst he is down there. Whilst he may well be in a stronger financial position than the mother, I accept that that is an expense that would need to be borne.
Further, the evidence of the father is that he has occasional work commitments on Saturday. He has a position of some responsibility. It is secure employment. It is likely that he will not be able to spend all of the time that the mother proposes with X, although on her proposal, he will be able to spend time with X in Queensland.
Further, how realistic it is for the father to be able to spend all of the holiday time as proposed by the mother is unclear, given his work commitments. That is not to suggest that he would not, during the school holidays, be able to rely upon his mother who is a support base and spend time with X before and after school hours.
On the father’s proposal and the proposal of the ICL, whilst there are some practical difficulties that present, there is not the practical difficulties that present on the mother’s primary proposal. The parties live about 45 minutes apart presently. Both work, but both have a car and the current arrangements that would continue on the father’s proposal and the proposal of the ICL have been working in the best interests of X.
So whilst I accept that the father has some capacity to contribute to costs, there is a concern about the extent of those costs and the impact that that may present for him spending as much time as possible with X on the mother’s primary proposal. The mother evidences a limited capacity to contribute to travel costs.
Section 60CC(3)(f) is not relevant here because there are no issues with respect to the capacity of either parent to provide for X. Mr S raised no issues of concern.
I have had regard to the parties’ background, lifestyle and culture in subsection (g) that may be relevant here by reference to the matters set out in the family report and also some of the issues that were raised in the context of the subpoenaed material, in particular, in relation to relevant background to do with the mother and her family and some health issues to do with the mother.
With respect to subparagraph (i), subparagraph (h) not being relevant – that is the attitude to the child and the responsibilities of parenthood, I accept the submission of the ICL with respect to the parents’ involvement of the child in these proceedings in the context of ascertaining his wishes. There is evidence before the court that notwithstanding X being described as a happy child, there was some anxiousness observed by Mr S and some evidence that he wants to please both parents. I accept the submission that there is some evidence to suggest that the parties have put him in the middle. I accept that that would not be fair to X in circumstances where he has such a close and positive relationship with both his parents.
I do find that the mother’s unilateral move to Adelaide in (omitted) of 2012 evidenced a lack of insight, particularly in relation to the impact that that would have for X, not only in terms of his removal from a familiar environment, routine and school, but also the impact that it had on him spending regular time with his father.
This must be understood in the context of the fact that X has had a lot of changes of residences in the mother’s care – on her evidence, 10 times during his life – and the mother’s actions involved him in, yet again, another move, this time, a move to South Australia in circumstances where he had spent all of his life in Queensland in the (omitted) area.
That history – the number of moves that he has been involved in in terms of his residences – must also be understood in the context of the history of the maternal family. The evidence before the court is that they have had a lot of changes, even in the period of time that they each resided in Adelaide after moving from Queensland. There are a number of unknowns in relation to whether or not they will continue to reside in their current residences given the history. That is notwithstanding the evidence, for example, of the maternal grandmother that she intended to take a lease on her unit for a further 12 months.
I accept the submission of Ms Dart for the ICL that the whole of the evidence enables the court to conclude that the mother’s relationship with her family may not be as supportive and stable as she asserts. I have no doubt that they maintain regular contact with each other, but there have been periods of time where there have been difficulties in the mother’s relationship with various members of her family. That is not to suggest that they are not important to her and important to X, however in the context of a consideration of the impact on X and what presents as a significant change for him, it is clearly a relevant consideration for the court.
In summary, I accept Ms Dart’s submissions in relation to that consideration in their entirety.
Mr S and Ms Dart also raised some issues about the mother’s attitude to the father and what that attitude said or may say if she relocated – particularly in the context of some concerns about the mother’s preparedness to maintain the same level of contact between the child and the paternal grandmother since her return. I referred earlier to some of the issues to do with phone-time.
With respect to the issue of family violence, the mother raises issues in relation to family violence in her material, however I accept the submission of the ICL that, whilst it appears that the parents have had some problems in their relationship, issues of domestic violence, in the context of the issues that present in this case and the history in recent times, would cause the court any cause for concern.
The evidence is that notwithstanding some difficulties in communication between the parents, they have been able to negotiate their own arrangements as recently as the father obtaining different work arrangements. They have been able to communicate. They have raised the child that X is and X is progressing very well under the current regime of time. It may be that having orders in place have assisted in that regard, although I do note that there were some previous orders in place made by the Southport Magistrates Court and, notwithstanding those orders, the mother still unilaterally relocated to South Australia.
There are no family violence orders in place and, as I have said, issues that appear on the evidence in relation to historical family violence do not present as a factor in the current dispute.
It is preferable to make an order to resolve the issue of relocation, but also to ensure that arrangements in relation to X are clear, to avoid further dispute between the parents and to which X may be exposed.
There are no other relevant considerations that I need to take into account.
In summary, we have here a child who is settled, who is progressing well at the (omitted) School, who is receiving an appropriate response to some difficulties and has two loving parents who are focused on his needs.
Whilst I understand that there is a genuine difference in view and the mother is anxious to return to South Australia where she views her support base resides, the advantages to her doing so do not outweigh the disadvantages that present on her primary proposal, which would see this young child’s regular time with a loved parent significantly reduced.
In circumstances where the mother’s proposal is more a hope that things will work out with no evidence to support that, it would either place her on a surer financial foot and mark out a career for herself in circumstances where, whilst there may be benefits to her from her perspective in doing so, there are consequences – and significant consequences – for X in that relocation.
I place significant weight on the meaningful relationship that X has with his father and members of his paternal family. That needs to be supported in his best interests. The father’s proposal, and the proposal of ICL, provides the best opportunity for X to continue to derive benefits from the meaningful relationship he has with his father.
There is no evidence to suggest that if the mother is not able to relocate, then that will negatively impact upon her capacity to care and to care well for X. That has been the situation since she returned in August of last year. She has cared for him and cared well and been able to focus on his particular needs.
Indeed, in the course of her evidence, she identified a particular concern about some problems that X was having at school and the steps that she was taking to remedy that. Those steps were particular and detailed and appropriate in the circumstances, my point being that the mother has been able to obtain work and she is doing well there.
I accept that she wants to obtain her own accommodation and that may or may not happen in the near future. However, she appears to be focused and organised. There is no evidence to suggest that, if she remains here, there will be negative impacts for X or that she will not be able to continue her positive relationship with members of her family down in Adelaide, albeit from a distance, albeit possibly only with annual visits, which she has maintained in recent years, notwithstanding her constrained financial circumstances.
She also has the support of a cousin who, on her evidence she saw every couple of weeks. Whilst that cousin may be working and may not be able to assist her practically because of her own family commitments in terms of affording day-to-day assistance, X is involved in after school care. He is in a routine. The mother can also access vacation care. She is able to do so at a reduced cost in relation to the weekly after school care she is able to access.
X is settled and the advantages of him remaining in his current parenting structure outweigh, by some margin, the disadvantages to him remaining in that care structure. There are few disadvantages on the evidence, whereas the disadvantages in him relocating to Adelaide significantly outweigh the advantages of relocating with his mother to Adelaide.
In reaching these conclusions and the findings that I have made, I place significant weight on the first primary consideration, on the child’s views, on the nature of the child’s relationship with his father and the paternal members of his family and also on the effect on X of the proposals and the practical difficulties that present. There is no evidence that this child’s primary strong attachment with the mother will be impacted as a consequence of the father’s proposals.
An order for equal shared parental responsibility has been made on a final basis. That requires me to consider equal time, and if not equal time then substantial and significant time, and whether those outcomes are reasonably practicable. In this case, they are not because, on the father’s proposal, the parties will still reside at a distance, which means that the child will be spending alternate weekend time from Friday to Sunday with the father, which does not meet the definition of substantial and significant time.
Taking into account the findings I have made, it is an outcome that is in the best interests of this child, that meets this child’s needs, that will enable this child to continue the very positive relationship he has with both of his parents and also with the paternal side of his family as well as continue his positive connections with the maternal side of his family.
Conclusion
I propose to make orders in line with the proposal of the ICL supported by the father.
I am satisfied that those orders are in the best interests of X.
I propose to make the orders by consent in relation to the parties attending a post-orders parenting program and enrolling in that within 28 days of today’s date.
I also propose to make an order that the child continue to attend the (omitted) School. It would not be in the child’s best interests if his schooling arrangements were altered.
I shall make the other orders about each parent making arrangements. That is all by consent. That is appropriate to do and the father acknowledged during the course of his evidence that he needed to organise those arrangements himself. I make no criticism of him in not doing that.
It is not unusual with couples that they fall into particular patterns or particular habits in relation to who is organising what and certainly, the mother has taken more of an active role, shall we say, in organising a lot of the arrangements for this child, which would not be unusual given her historical primary care role, however I think it is appropriate in circumstances where the mother is working and is trying to place herself on a surer footing, that she not have to alter her work arrangements at late notice because the father’s work arrangements have impacted upon his ability to spend the time allocated to him with X.
His work arrangements certainly are no more important than hers. Now, I am not intending to make an order that the father make a contribution of $200 towards the mother’s costs. I will explain why shortly. I am satisfied that the mother has evidenced a capacity to meet that financial commitment, including when she was not in the workforce, and that there is no evidence to suggest that she will not be able to continue to raise the funds to make an annual trip or meet the costs of an annual trip for herself and the child to Adelaide.
In relation to the costs of some of the schooling issues, it is reasonable for me to make an order that in relation to any additional schooling costs, such as attendance on camps and the like, the father and the mother meet those costs equally. There will need to be an appropriately worded order which I shall ask Ms Dart to undertake to assist the court and discuss with the parents so that there is clarity in relation to that. There does not seem to be an issue with respect to that.
Costs
There is an application for costs by the ICL seeking that the father meet costs in the sum of $3,825.50, being one half of the costs expended by the ICL in their involvement in this matter. The overall costs are $6,381.00.
The general rule is that each party bear their own costs in these proceedings. However, the court is able to make a costs order against a party if there are justifying circumstances.
The ICL submits that the father has been assessed as being a person who is financially able to meet one half of the costs. No order is sought against the mother because she has been assessed as a person who is not in a financial position to meet the costs.
In informing the court’s discretion as to whether it should make a costs order, the court is required to consider the factors set out in section 117(2)(A) of the Act.
The court is able to make an order in favour of the Legal Aid Office of Queensland. That is clear from the provisions of section 117(3).
The case law also makes clear that it is not necessary that a costs order be grounded in one or more of the factors set out in subsection (2)(A).
Those factors include, firstly, the parties’ financial circumstances. There is no question that the father is in a stronger financial position than the mother. He has recently had some financial difficulties, which he has been able to remedy, by taking remunerative work in the (employer omitted). He has a net income of $1,800.00 per week. There is some evidence in relation to the father’s expenses per month and those expenses do not exceed his net income.
I have taken into account that he has met significant costs associated with legal proceedings. He was originally legally represented and able to meet the costs associated with engaging a private solicitor. Neither party is in receipt of Legal Aid.
The father is a person who presents with a strong work ethic. He owns his own home. He has a mortgage on that home, however he is a person in secure employment with a strong work ethic, who has responded to recent financial difficulties associated with the costs involved in these proceedings and also the break-up with his former partner.
I accept the submission of the ICL that the factors (c) to (f) are not relevant.
I must also take into account the authorities and the principles enunciated in those authorities, namely in Telfer & Telfer (1996) FLC 92-688 and Re David (No 2) Re Costs (1998) FLC 92-809.
On one view, it could be regarded as unfair for the father to pay costs in circumstances where no order is sought by the ICL against the mother and where the father is involved in these proceedings as a consequence of the mother’s actions. That is certainly a view the father would advance and I can understand that.
However, on the other hand, I must take into account that legal aid funds and the resources provided by the Legal Aid Office are not limitless. I think I can take judicial notice of the fact that in recent years there have been significant pressures on the Legal Aid office in relation to the funding that is available to litigants.
The ICL is a significant resource and this court would not be able to undertake the important work that it does in parenting matters, but for the ability of the court to appoint an ICL as appropriate, who is then in a position to gather appropriate evidence, particularly in cases where there are significant issues. This case is one involving a relocation issue with potentially significant impacts for a young child in circumstances where both parties self-act.
As a consequence of the involvement of the ICL, reports were prepared, funded by the ICL, not by the court; the court had the benefit of very experienced ICL who instructed equally experienced Counsel to assist the court in identifying the issues, to enable the court to make a wise decision in the best interests of X. That decision was a decision that the father sought in these proceedings.
I have to take into account that the funds to meet those costs are funds from the public purse.
In the end, whilst the court has a great deal of sympathy for the father’s position, it is not a question of penalising a parent who may be viewed as having acted contrary to the best interests of a child, nor is it about rewarding a parent for taking appropriate steps to respond to that.
It is a question about whether taking into account the financial circumstances of the father and the matters I have identified, whether he is in a position to make a contribution towards costs funded by the public purse. Those costs are not significant. They are not significant when one considers the excellent work that has been undertaken by the ICL in preparing this matter and ultimately making the court’s job so much easier.
For those reasons and notwithstanding the sympathy I have for the father’s position, I am satisfied that he does have the capacity to make a contribution. I am satisfied that it is not a significant contribution or a contribution that would cause the court concern in relation to his ability to meet those costs.
I am satisfied that there are justifying circumstances for the court to make an order. I make the orders sought by the ICL. I order the father pay costs in the sum of $3,825.50 to the Legal Aid Queensland within six months of today’s date.
I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Associate:
Date: 14 February 2014
Key Legal Topics
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Family Law
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Costs
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