Eagleton and Eagleton

[2018] FamCA 623

FAMILY COURT OF AUSTRALIA

EAGLETON & EAGLETON [2018] FamCA 623

FAMILY LAW – CHILDREN – Child related proceedings – Meaningful relationship – Unacceptable risk – Best interests of the children – Where the father seeks orders that the children be relocated back to their former residence – Where the father has previously sought that orders be made for the relocation of the children from one Sydney suburb to another – Where the father did not press that application at hearing – Where the mother and the children were living with the maternal grandmother – Where the mother secured independent rental accommodation – Where the father contends that the distance that he must travel to collect and return the children is unsustainable – Where the father seeks orders that the children be baptised in his faith – Where the mother opposes that the children be baptised at this time – Application dismissed – Father ordered to pay costs of the mother in relation to this application.

Commonwealth of Australia Constitution Act 1900 s. 116
Family Law Act 1975 (Cth) ss. 60CA, 60CC, 61DA, 64B, 65D, 65DA, 65DAC, 68B, 114, 117

AMS v AIF (1999) 199 CLR 160
Banks & Banks [2015] FLC 93-637
Cowling & Cowling (1998) FLC 92-801
Dundas & Blake (2013) FLC 93-552
Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123
H & E [1999] FLC 92-845
Hawkins & Roe (2012) 47 Fam LR 526
In the marriage of I & I (No. 2) (1995) FLC 92-625.
P & L[2006] FamCA 947
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544
Re G: Children’s Schooling (2000) FLC 93-025
Sampson & Hartnett (No. 10) [2007] FLC 93-350
Sayer & Radcliffe and Anor (2012) 48 Fam LR 298
Short v Crawley (No. 40) [2008] NSWSC 1302
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
VR & RR (2002) FLC 93-099
Wrensted & Eades (2016) FLC 93-697

APPLICANT: Mr Eagleton

RESPONDENT:	Ms Eagleton
FILE NUMBER:	SYC 6502 of 2015

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 28 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Watkins Tapsell Solicitors and Barristers

Orders

1. The parties shall consult with a view to reaching agreement as to what school the children should attend when they reach school age.

2. If, after a period of 28 days following the commencement of those consultations referred to in order 1 herein, the parties are unable to reach agreement as to what school the child/ren should attend, then, pending further order, the parties are to do all acts and things necessary for the child/ren to attend the public school in their designated intake area, as determined by the New South Wales Department of Education.

3. The father’s Application in a Case filed on 27 March 2018 be, otherwise, dismissed.

4. The father pay the costs of the mother in respect to his Application in a Case filed on 27 March 2018, within 28 days of those costs being agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eagleton & Eagleton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6502 of 2015

Mr Eagleton

Applicant

And

Ms Eagleton

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an interim application brought by the father in relation to the children X, born in 2013 and currently aged five years old and Y, born in 2015 and currently aged three years old (“the children”).

Applications

1. In his Application in a Case filed on 27 March 2018, the father seeks the following interim parenting orders:

   2. That by no later than 14 days from the date of these Orders the mother return the children to the children's former residence at [B Street, Suburb C] or relocate within 20kms of the mother's current workplace in [Suburb D].

   3. That the mother be restrained from thereupon removing the children from that residence unless it is with the written consent of the father or by a further Order of this Honourable Court.

   4. That each party do all acts and things and sign all documents necessary to facilitate the children's baptism on … April 2018 at the [E Church, Suburb F].

   5. That the respondent pay the applicant's costs and incidental of this Application.

2. In her Response to an Application in a Case filed on 4 May 2018, the mother seeks the following interim parenting orders:

   1. That the Respondent Mother have sole parental responsibility for decisions about the schooling of the children.

   2. That the Respondent Mother have sole responsibility for liaising with schooling authorities, school teachers and receiving school reports in relation to the children.

   3. That the Respondent Mother is otherwise free to enrol the children in the school system in which she resides, which at present is the [G School] system.

   4. That the Respondent Mother have sole parental responsibility for decisions regarding the health, medical diagnosing and medical treatment for the children.

   5. That the Respondent Mother have sole responsibility for liaising with medical providers, scheduling medical appointments and attending appointments concerning the children's medical treatment.

   6. That the Respondent Mother is otherwise free to schedule medical appointments for the children consistent with the needs and bests interests of the children as her schedule permits and without prior consultation with the Applicant Father.

   7. That the Respondent Mother provide the Applicant Father with all relevant information as to the medical treatment involving the children in writing.

   8. That the Applicant Father's Application be dismissed.

   9. That the Applicant Father pay the Respondent Mother's costs incurred as a result of this application.

Issues

1. Accordingly, there are three issues to determine in these proceedings;

   A.Should an order be made requiring the mother to relocate children’s place of residence.

   B.Should an order be made compelling the mother to facilitate the children being baptised

   C.Should orders be made giving the mother sole parental responsibility in respect to issues of either or both

   i.education, and / or

   ii.health care for the children.

Background

1. In 1976, the mother was born and is currently aged 41 years.

2. In 1986, the father was born and is currently aged 31 years.

3. In 2011, the parties were married.

4. In 2013, X was born.

5. In May 2015, the parties separated.

6. In 2015, Y was born.

7. In September 2015, the mother relocated herself and the children from the former matrimonial home at Suburb J to the home of her mother, the maternal grandmother, at Suburb C (“the Suburb C property”).  The mother and the children continued to reside at that property until they relocated to their current residence at H Street, Suburb G (“the Suburb G property”) in or about March 2017.

8. In the period following the parties’ separation, the father also relocated to the home of his parents, at Suburb F (“the Suburb F property”).

9. The former matrimonial home has, in the period subsequent to the parties’ separation, been sold.

10. On 2 October 2015, the father commenced these proceedings.

11. On 18 November 2015, interim parenting orders were made by consent.  Those orders provided for the parties to have equal shared parental responsibility, for the children to live with mother and for the children to spend specified time with the father.

12. On 20 June 2016, the father filed an Amended Application in a Case which sought orders that the mother relocate herself and the children from the Suburb C property to the Eastern Suburbs of Sydney.  At the hearing of that application, those orders were not pressed by the father.

13. On 21 June 2016, orders were made to vary the interim orders made on 18 November 2015 to provide for the mother to have sole parental responsibility for the making of decisions in relation to the children's daycare.

14. On 29 November 2016, a divorce order was made.

15. On 25 January 2018, the mother wrote to the father in relation to the enrolment of X in a public school local to her current residence.  That place of residence was not identified.

16. By email dated 21 February 2018, the father notified the mother that he had organised for the children to be baptised in April 2018.

17. In late-February 2018, the mother became aware that she was entitled to access a four-bedroom home, being the Suburb G property, under a government affordable housing scheme.

18. On 15 March 2018, the father says he first learned that the mother had relocated herself and the children to the Suburb G property. 

19. On 2 May 2018, the father advised the mother that he had taken X to an open day for a private school in the Eastern Suburbs.

20. The parties have, by agreement, modified the interim orders made on 18 November 2015 so that the father currently spends the following time with each of the children:

    a)With X:

    i)From 8:00 am on Tuesdays to 9:00 am on Wednesdays; and

    ii)From 9:00 am to 5:00 pm each alternate Saturday and Sunday.

    b)With Y:

    i)From 8:00 am to 5:00 pm on Tuesdays;

    ii)From 8:00 am to 4:30 pm each alternate Thursday; and

    iii)From 9:00 am to 5:00 pm each alternate Saturday and Sunday.

Evidence

1. The father relies upon his Affidavit sworn on 27 March 2018 and filed on that date.

2. The mother relies upon the following:

   a)Her Affidavit filed on 4 May 2018;

   b)Her Affidavit filed on 3 November 2015 (paragraphs 15 and 86); and

   c)Her Affidavit filed on 20 May 2016 (paragraphs 39 to 48).

3. In addition, both parties provided a tender book of documents upon which they rely.

Limited ability to make findings of fact in interim proceedings

1. In Cowling & Cowling (1998) FLC 92-801 at 85,006, the Full Court said:

   The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

A. Relocation

Relevant facts

1. At paragraphs 20 to 21 of her Affidavit filed on 4 May 2018, the mother states:

   20. I resided with my Mother at her residence at [Suburb C] from 2015 to 2018.

   21. My Mother has expressed to me (on multiple occasions) her intention to relocate from [Suburb C] and to downsize and ultimately retire.

2. Counsel for the father submitted that the Suburb C property provided “ample accommodation” for the mother and the children and that there was nothing to suggest that the maternal grandmother’s relocation from the Suburb C property was “imminent” or that she had asked the mother to leave.

3. The mother says, at paragraph 23 of her Affidavit filed on 4 May 2018, that in late-February 2018, she became aware of the availability of a four-bedroom home in Suburb G, which she could rent under a government affordable housing scheme.  The mother states that this scheme allows for rental prices of approximately 25 per cent less than the market rate.

4. At paragraph 25 of her Affidavit filed on 4 May 2018, the mother states that her rent at the Suburb G property is $496 per week.  She estimates that similar properties in the Eastern Suburbs and Suburb C would attract rents in excess of $1,200 and $1,000 per week, respectively.  In this way, the mother states that she is “able to provide the children with far more quality of life with regard to housing in Suburb G than [she] could in the Eastern Suburbs or Suburb C areas”.

5. The father says, at paragraph 26 of his Affidavit, that, following the relocation of the mother and the children to Suburb C, he was required to travel between 45 and 70 minutes each way to spend time with the children, depending on traffic conditions.  This, he states, could result in him driving for up to four hours in a day.

6. On 15 March 2018, the father says he was notified by his lawyers that the mother had relocated with the children to the Suburb G property.  I accept the evidence of the father that this was the first time that he could have reasonably been aware of that relocation.  Counsel for the father submitted that Suburb G is a further 22.8 kilometres from Suburb C and therefore, the total distance between the parties’ homes is now 41.4 kilometres.  Counsel for the father further submitted that this has resulted in the father travelling a further half an hour each way to collect and return the children. 

7. At paragraph 35 of his Affidavit, the father estimates that he travelled for up to five hours on 20 March 2018, in order to collect the children from the Suburb G property, return to the Suburb F property, later return Y to the Suburb G property and again return to the Suburb F property.  Given that the length of time that the father spends with Y differs to that which he spends with X, the father was required to travel to and from the Suburb G property to return X the following day, 21 March 2018.  He estimates that this took two and a half hours.  The father was also required to drive back and forth between the Suburb F and Suburb G properties twice on 22 March 2018 in order to spend scheduled time with Y. He estimates this took almost three and a half hours.

8. At paragraph 39 of his Affidavit, the father states that he observed X become “incredibly restless, unsettled, frustrated and agitated in the car” after she was required to sit in her car seat for over four hours on a particular day. 

9. Counsel for the father submitted that the mother had made a unilateral decision in relocating to the Suburb G property.  That action, he contended, was contrary to the current interim orders for the parties to have equal shared parental responsibility in respect to matters other than the children’s daycare.  Counsel for the father submitted that, despite the mother’s evidence that she only discovered that the Suburb G property was available in late-February 2018, it can reasonably be inferred that she deliberately withheld her intention to relocate from the father.

10. Counsel for the father submitted that the mother’s relocation to Suburb G caused the children to be uprooted from the daycare that they had become settled at, since relocating to Suburb C.  This was in circumstances where, at paragraph 31 of his Affidavit, the father expresses concern that X has attended four daycares in three years.

11. The mother says that the father has displayed a “chronic tardiness” in collecting and returning the children at the commencement and completion of their time with him.  Counsel for the father submitted that the father acknowledges that “he has had some delays, some lateness in trying to get to the mother’s home to pick up or return a child”.  Counsel for the father further submitted that the mother has amplified this issue by relocating further away from the residence of the father.   

12. Annexure “G” to the mother’s Affidavit filed on 4 May 2018 is a Child Support Assessment for the period 12 July 2016 to 11 October 2017.  That Assessment saw the father liable to pay no child support.  The mother also receives no spousal maintenance from the father.  There has since been a review of the father’s child support obligation.  At present, the father is assessed as being obligated to pay child support of $2,780 per annum.  At the hearing, he was in arrears of approximately $1,000 in relation to those payments.

13. Further, the mother says, at paragraphs 17(f) to 17(k) of her Affidavit filed on 4 May 2018, that during the parties’ relationship, she had the use of a motor vehicle owned by the husband’s business.  On 30 August 2016, the mother says that she parked the vehicle at Suburb L Railway Station before catching a train to work.  The mother says that when she returned to retrieve her car, it was not there and that in the meantime, the father had sent her a text message indicating that he had collected the car.  The mother says that the father has not responded to her solicitor's correspondence in relation to this matter.  Since that time, the mother has borrowed her mother’s car.

14. As noted above, it is difficult to make findings of fact in interim proceedings. There was an element of discourtesy in the mother’s failure to notify the father of her intention to relocate to the Suburb G property for a period of approximately two weeks after she became aware of the availability of that residence.  I do not, however, in these interim proceedings infer an intention on the part of the mother to conceal the fact that she was relocating or that she intended to mislead the father as to her address.  This is in circumstances where, in accordance with current parenting arrangements, the father regularly travels to the mother’s home to collect the children.

The law

1. In H & E [1999] FLC 92-845, the Full Court said at 85,887:

   Without exploring the extent of [the] power, it would appear that when dealing with a child whose parents have never been married to each other, the power to place a restraint upon movement of the child appears to be found in the Court's power to make a parenting order under s.65D or grant an injunction under s.68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s.114 of the Family Law Act 1975.  [Emphasis added].

2. Relevantly, s 65D(1) of the Act empowers the Court to “make such parenting order as it thinks proper”.

3. By virtue of s 64B of the Act, a parenting order is one which may deal with one or more of a number of matters, which are as follows:

   (a) the person or persons with whom a child is to live;

   (b) the time a child is to spend with another person or other persons;

   (c) the allocation of parental responsibility for a child;

   (d) if two or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   (e) the communication a child is to have with another person or other persons;

   (f) maintenance of a child;

   (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

   (i) a child to whom the order relates; or

   (ii) the parties to the proceedings in which the order is made;

   (h) the process to be used for resolving disputes about the terms or operation of the order;

   (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

4. It is to be noted that order 2 of the orders sought by the father does not specifically require the mother to relocate to Suburb C or to a location within 20 kilometres of her place of employment at Suburb D, but rather, requires the mother to relocate the residence of the children.  As such, the order is a parenting order.

1. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. At the same time, insofar as the proposed order imposes an obligation on the mother, namely to change the children’s place of residence, both parties acknowledged that the primary relief sought by the father is in the nature of a mandatory injunction requiring the mother to undertake a positive course of action that is, to relocate the children’s residence.  The power to make such an order is found in s 68B of the Act, which relevantly provides:

   (1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a) an injunction for the personal protection of the child; or

   (b) an injunction for the personal protection of:

   (i)  a parent of the child; or

   (ii)  a person with whom the child is to live under a parenting order; or

   (iii)  a person with whom the child is to spend time under a parenting order; or

   (iv)  a person with whom the child is to communicate under a parenting order; or

   (v)  a person who has parental responsibility for the child; or

   (c) an injunction restraining a person from entering or remaining in:

   (i)  a place of residence, employment or education of the child; or

   (ii)  a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d) an injunction restraining a person from entering or remaining in:

   (i)  a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)  a specified area that contains a place of a kind referred to in subparagraph (i).

   (2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

3. As noted in H & E (supra) at 85,887, another potential source of power for the Court to make such orders is found in s 114(3) of the Act, which provides:

   (3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

4. In Sampson & Hartnett (No. 10) [2007] FLC 93-350, the Full Court said at 82,013:

   Perhaps obviously, in a parenting issues case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders.

5. Similar considerations apply in respect to the application of s 68B(1) of the Act, which requires the Court to be satisfied that the proposed order is “appropriate for the welfare of the children”.

6. In summary, on any approach, a central issue to the making of the proposed relocation order is the obligation on the Court to consider, as the paramount consideration, the best interests of the children.  However, as noted by the Full Court in Sampson & Hartnett (supra), the practical effect of an order, which, as proposed in this case would require the mother to relocate the children, is that the mother, as the children’s primary carer would, herself, in all likelihood, also relocate.  In those circumstances, the Full Court said, in Sampson & Hartnett, that while there is a power under s 114(3) of the Act to make such an order, any such injunction should be “no more than is necessary to secure the best interests of a child”.

7. The issue for determination, therefore, becomes whether it is in the best interests of the children for the Court to make such an order.

Determining the best interests of the children

1. Section 60CC of the Act sets out the matters that the Court must consider in determining what is in the children’s best interests.  The primary considerations are set out in s 60CC(2).  Those considerations are:

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

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

2. In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

Additional considerations

1. The additional considerations for determining what is in the best interests of the children are set out in s 60CC(3) of the Act.  Those considerations can conveniently be grouped under into following topics:

   a)Issues relating to the children – their views, level of maturity, culture and relationships;

   b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;

   c)Issues of family violence;

   d)Effect of change;

   e)Practical difficulty of implementation of orders;

   f)Avoiding further proceedings; and

   g)Other relevant matters.        

2. While there are a range of factors set out in s 60CC, adopting a common sense approach, in Banks & Banks [2015] FLC 93-637, the Full Court said at 80,116:

   It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant.  By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the [children], require determination prior to a proper determination at a trial.

3. In this matter, to ensure that all section 60CC considerations are taken into account, as best can be done in these interim proceedings, it is appropriate to address the additional considerations set out in section 60CC(3) prior to addressing the primary considerations set out in section 60CC(2).

Issues relating to the child – their views, level of maturity, culture and relationships

Any views expressed by the child

1. Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

2. These are interim proceedings and the children have not been interviewed by a person with social science qualifications in order to ascertain their views. 

3. However, the mother states that she and the children love their new home at the Suburb G property and that “the children seemed genuinely happy”.  The mother’s description of the Suburb G property, to which I will subsequently refer, suggests that it is a comfortable home for the children and, while the mother’s account of the children’s views is based on her unqualified opinion, as these are parenting proceedings, I am entitled to give some weight to that opinion. 

4. The father, on the other hand, states that the children find the travelling time between the Suburb G and Suburb F properties to be onerous.  Similarly, I am entitled to give some weight to that opinion.

The nature of the relationship of the child with each of the child’s parents and other persons

1. Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

2. These are interim proceedings and it is not possible to explore the full extent of the children’s relationship with each of their parents and, indeed, the broader paternal and maternal families.

3. Nevertheless, there is no evidence before the Court to suggest that the children have other than a loving relationship with each of their parents and their extended paternal and maternal families and that those feelings are reciprocated.

The maturity, sex, lifestyle and background of the child and either of the child’s parents

1. Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.

2. A relevant consideration in this matter is that the children are just three and five years of age.  In that context, the father contended that the travel time between where he lives at Suburb F and Suburb G is onerous for the children.  At paragraph 35 of his Affidavit, the father provided estimates of the time it has taken for him to travel from Suburb F to Suburb G.  Those times vary between 60 minutes and 90 minutes.

The culture of the child if the child is Aboriginal or a Torres Strait Islander

1. Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.

2. This is not a relevant consideration in this matter.

Issues relating to the parents – decision making, time spent with child, fulfilled obligations, attitude, capacity and exercise of responsibility

Long term decision making, time and communication

1. Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.

2. The evidence in these interim proceedings suggests that each of the parents desires to, and has taken all reasonable opportunities to spend time with the children and participate in making decisions about major long-term issues in relation to them.  Indeed, in part, that desire on the part of each of the parties has given rise to issues in dispute between them.

3. It is strongly suggested that, if the parties wish to avoid the ongoing financial and emotional burden of litigation, they should obtain advice in respect to dispute resolution skills and available services that can assist them, in that regard.

4. Similarly, the parties’ respective legal advisers are on notice that the Court expects that they will comply with their statutory obligation to advise their clients of the desirability of achieving non-litigious resolutions for matters in dispute, rather than making the Court’s filing portal their first port of call.

The parent’s obligations to maintain the child

1. Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

2. This is a significant issue in these proceedings.  The burden of maintaining the children has, until recently, fallen entirely upon the mother.  The father is failing in his obligation to properly maintain the children.  He has recently commenced paying a small amount of child support.  That amount is, however, inadequate to assist, in a meaningful way, with meeting the costs associated with caring for and sustaining the children.

3. The father is clearly of sound physical stature, as reflected by the fact that he provides training in a gymnasium.

4. The mother raises issues regarding the bona fides of a transaction in which the father sold a business to his parents.  The mother also questions the veracity of the father’s financial records in respect to his disclosed income.

5. In these interim proceedings, it is not possible to make a determination in respect to the mother’s contentions.  The apparent disparity between the father’s physical capabilities and his low income will clearly be a live issue if this matter progresses to a final hearing.

The capacity of each of the child's parents

1. Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

2. No issue was raised by either of the parties regarding their capacity to properly care for the children when they are in their care.

3. Relevantly, for the purpose of these proceedings, the mother contends that she is able to provide a much better standard of living for the children if they are to continue living at the Suburb G property.  That residence is a four-bedroom home, which was described as being a “relatively new build in a gated community”.

4. While these are interim proceedings, the information before the Court suggests that the Suburb G property is entirely suitable for the mother and the children to live in, with space and reasonable comfort. 

Attitude and parental responsibility

1. Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.

2. The father contends that the mother’s initial decision to relocate herself and the children to the Suburb C property was inconsistent with her parental responsibilities.  In that respect, the father contended that the mother’s decision was unilateral and resulted in the children being moved away from the Eastern Suburbs of Sydney “where their life had been taking place”.  This decision resulted in X leaving the childcare centre that she had been attending for a period of approximately five months prior to that relocation in September 2015.

3. The father further contends that the mother’s refusal to notify him of where she and the children were living, at that time, was also inconsistent with her parental responsibilities and resulted in a situation where the father did not see the children for approximately seven weeks.

4. The father contends that the mother’s subsequent unilateral decision to relocate herself and the children from the Suburb C property to the Suburb G property is similarly inconsistent with the mother’s parental responsibilities.  The father makes that contention on the basis that the relocation has increased the travelling time between where the father currently lives at Suburb F and where the children now live at Suburb G, as compared to their previous residence at Suburb C.

5. The father contends that the first time that he became aware of the mother’s decision to relocate to Suburb G was when he received a letter from the mother’s solicitors dated 15 March 2018, which stated:

   Please note that our client has relocated from her mother’s residence and is now renting a house out [H Street, Suburb G].

6. The mother contends that the father was notified of her decision to relocate to Suburb G when, in correspondence dated 25 January 2018 (Annexure “R” to her Affidavit), her solicitors advised to the solicitors for the father that it was the mother’s intention “to enrol [X] in a public school which is central to her home and the children’s childcare and activities for the 2019 school year”. 

7. However, the mother’s evidence, in that regard, is inconsistent with the evidence set out in paragraph 23 of her Affidavit filed on 4 May 2018, as follows:

   In late February 2018 I became aware of a four-bedroom home in [Suburb G] (“the [Suburb G] property”) that I was eligible to rent under the Affordable Housing Scheme.

8. That written evidence makes clear that the mother was not aware of the availability of the Suburb G property at the time of her solicitors’ correspondence to the father’s solicitors on 25 January 2018.

9. The father further contends that the mother has acted in a manner that is inconsistent with her parental responsibilities in that, as a result of her having relocated to the Suburb G property, X is now attending her fourth daycare facility in a period of “just 3 years”.  Having proffered that the mother is irresponsible, in that respect, the father contends that the mother and the children should be required to again relocate, which, presumably, would result in yet a further change of daycare for X.

Issues of family violence

Any family violence involving a child or a member of the child’s family

1. Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.

2. Fortunately, this is not a relevant consideration in this matter.

Whether any family violence order has or continues to apply

1. Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.

2. This is not a relevant consideration in this matter.

Effect of change

1. Section 60CC(3)(d) requires the Court to consider 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 or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

2. The effect of an order requiring the mother to relocate the children away from their current residence would be disruptive.

3. Again, while these are interim proceedings, the mother’s evidence has not been challenged that the children enjoy living at their current residence, where they have a backyard, access to a pool and are in close proximity to friends and relatives.

4. The alternative arrangements proposed by the father are for the mother and the children to either reside with the maternal grandmother or to move into accommodation in the nature of that detailed in photocopies of online advertisements included in the father’s tender bundle.  As I discuss below, seven of those nine identified properties are unsuitable as result of being unfenced.  Requiring the children to change residence to those properties would be inappropriate.

5. Requiring the mother to incur additional expense in moving into one or other of the properties that have been identified by the father as being potentially appropriate would impose an additional financial impost on the mother in circumstances where she is currently bearing the substantial financial burden of caring for and sustaining the children. 

Practical difficulty of implementation

1. Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

2. This consideration is very important in these proceedings.  The father contended that the mother’s initial decision to relocate the children away from the Eastern Suburbs of Sydney, to live with her mother at the Suburb C property, made travel to spend time with the children significantly more arduous.  At paragraph 26 of his Affidavit, the father describes that, depending upon traffic, the journey from the home of his parents in the Eastern Suburbs, where he currently resides, to Suburb C could take between 45 and 70 minutes each way.  This did not appear to be disputed by the mother.

3. In late-July 2017, the parties agreed to revise their parenting arrangements so that the father would collect the children one hour earlier on weekdays in order to facilitate the mother arriving at work on time.  This involved the father collecting the children at 8:00 am, rather than 9:00 am.  At paragraph 29 of his Affidavit, the father describes how collecting the children one hour earlier has resulted in the return trip from Suburb C taking an extra 30 minutes, due to increased traffic at that time.  It is my understanding of the evidence that that additional time is included overall travel time of up to 70 minutes, as assessed by the father and set out in paragraph 26 of his Affidavit.

1. The father contends that the practical difficulty of spending time with the children has been adversely affected by the mother’s decision to move from the maternal grandmother’s home at Suburb C to the suburb of Suburb G, where she now lives.  The father’s tender bundle includes a printout from the Google Maps website, depicting that the distance between the Suburb F property, where he currently lives, and the Suburb G property is approximately 41.2 kilometres.  That document states that the travelling time by car between those locations is typically between 50 and 90 minutes.  As noted, at paragraph 35 of his Affidavit, the father describes that travelling time as between 60 and 90 minutes.

2. While those travelling times were not conceded by the mother, it was accepted that the father will incur additional travelling time in travelling from Suburb F to Suburb G, as compared to Suburb C.

3. The father further contends that he has incurred additional expense as result of the road tolls that are payable in respect to travelling along the motorway for a length of that journey.  The father did not, however, provide evidence of options he may have to seek a refund of those tolls, in circumstances where the travel is for private purposes.

4. The Court accepts that the relocation of the mother and the children to the Suburb G property has increased the practical difficulties associated with the father spending time with the children, as it has increased his travel time.

Avoiding further proceedings

1. Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

2. While these are interim proceedings and, while I would encourage the parties and their legal advisers to explore options to resolve matters in dispute, this consideration is not otherwise relevant.

Other relevant matters     

1. Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.

2. In Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 at [48], the Full Court said:

   A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider thecompeting proposalsof both parents.  [References omitted].

3. I have earlier described the mother’s proposal, which is for the children to continue to reside at the Suburb G property.  It was not suggested that that property was other than entirely suitable for the children.

4. Dealing with the first aspect of the father’s proposal, it would be inappropriate to make orders compelling the mother to return the children and, by practical effect herself, to live with the maternal grandmother.  In AMS v AIF (1999) 199 CLR 160, Kirby J observed at 145:

   One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court.  [References omitted].

5. Following the parties’ separation, the mother is entitled to move on with her life, including, for example, choosing her place of residence and possibly re-partnering.  Requiring the mother to return to live with her mother would not be conducive to that possibility.

6. In respect to the father’s second proposal, that the children be relocated to within 20 kilometres of the mother’s workplace at Suburb D, the father has not presented evidence of potentially available accommodation for the mother and the children in or around that area.

7. The father contends, however, that there are suitable rental accommodation properties available in the vicinity of Suburb C that can be accessed by the mother at a rental of approximately $400 to $500 per week.  In that respect, the father refers to the advertisements for nine properties included in his tender bundle.  Those advertisements identify that each of the properties is available to be rented for between $400 and $650 per week.  In each case, the required bond is the equivalent of four weeks’ rent.

8. Of the nine properties identified, eight are freestanding dwellings and one is a three-bedroom apartment.

9. Of the eight freestanding dwellings, seven do not have front fences and, as I have noted, for that reason, would be entirely unsuitable for children who are three and five years of age.

10. The one freestanding dwelling with a front fence is advertised at a rental of $650 per week.  This is $156 per week greater than the mother is currently paying for the Suburb G property.

11. The apartment included in the advertisements is available for rent at $600 per week, which is $104 per week more than the mother is currently paying.  If the mother and the children resided at that property, the children would not have the benefit of a backyard, to which the mother has referred as being an attraction of the Suburb G property.

12. In summary, only two of the advertised properties proffered by the father as being appropriate for the mother and the children are potentially suitable for the children.  The cost of those properties is, in one case, $100 in excess of the current weekly amount being paid by the mother for the Suburb G property and in the other case, it is $150 greater.  This is not insignificant in circumstances where the father was assessed by the Child Support Agency as being required to pay no child support in respect to the period 12 July 2016 until 11 October 2017 and has subsequently been assessed as being required to pay just $2,780 per year in respect to the children.  The wife was not challenged on her evidence that, even in respect to that extremely small contribution, the husband is approximately $1,000 in arrears.

13. As I have noted, not only will the wife be required to meet the additional rental cost, she would also be required to meet the cost of the required bond.  In the case of the suitable dwellings to which I have referred, those bonds are $2,400 for the apartment and $2,600 for the house.  Those amounts are marginally less than the totality of the child support that the mother receives for the entire year, assuming that it is actually paid by the father.  As noted, that assumption is unsafe in circumstances where, even in respect to that modest amount, the father is $1,000 in arrears.

Primary considerations

Meaningful relationship

1. In this matter, both parties acknowledge that it is in the children’s best interests to have a meaningful relationship with both of their parents, in terms of s 60CC(2)(a) of the Act.  I accept that to be the case.

2. In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, citing Mazorski & Albright [2007] FamCA 520 at [26], confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.

3. The father contends that the amount of time that the children spend travelling with him between the Suburb F and Suburb G properties “risks compromising the meaningful relationship that he has with the children”.  Specifically, it was contended that that travel time means that there is less time for the father to engage in activities with the children at his home.  I accept that the amount of travelling time that the father is required to undertake is less than ideal.

4. The father has not presented evidence in relation to the possibility of him moving to a residence in closer proximity to the wife and the children.  In that respect, in U v U (2002) 211 CLR 238 at [175], Hayne J, with the concurrence of Gleeson CJ and McHugh J, said:

   When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined.

5. In this matter, the father, who according to the undisputed assertion of the mother, claimed an adjusted taxable income of just $16,298 for the financial year ended 30 June 2017, has not explained why he has been incapable of obtaining more remunerative employment, including work in closer proximity to where the mother and his children now reside.

Unacceptable risk

1. Neither party has raised the issue of unacceptable risk as being relevant to my consideration of the parties’ respective applications.  There is no evidence before me that suggests that the children are at an unacceptable risk in either of the parties’ care or that the orders sought in these proceedings would present an unacceptable risk to the children.

Application for relocation dismissed

1. For these reasons, I dismiss the father’s application to require the mother to abandon the Suburb G property and relocate herself and the children to either the Suburb C or Suburb D area.

2. As I do not make that order sought by the father, it follows that I dismiss the husband’s application that the mother be restrained from relocating from those suburbs.

B. Baptism

1. The father seeks further orders for the children to be baptised in his faith.  The father states at paragraph 51 of his Affidavit that the parties had spoken in the past of their intention to baptise the children.  The father says that he practices his faith and that the mother is of the same faith, but not practising. 

2. The father says that, on 21 February 2018, he emailed the mother notifying her that he had scheduled the children’s baptism for April 2018, selected godparents for them and made arrangements in relation to candles and outfits for the event.  He also requested that the mother select one godparent for each of the children.  On 23 February 2018, the mother responded to that email, stating:

   Whilst I agree to the idea of [the children] being baptised, I am not agreeing to proceed because there has been no discussion with me, or agreement from me prior to your unilateral decision to go ahead and arrange the baptism.

3. The father also states that the mother told him that she would not agree to the children being baptised until after the conclusion of these proceedings.  The father’s Counsel submitted that these proceedings have no relevance to whether or not the children are baptised and that the mother has advanced no reasons in relation to the children’s welfare as to why she would not want them baptised, at this time.

4. At paragraph 18 of her Affidavit filed on 4 May 2018, the mother says that she has never known the father to be practicing his faith and as far as she is aware, X has only been to church on one occasion, with the paternal grandmother.

5. The mother says that at paragraph 19:

   I objected to [the father’s] plan, as it was done entirely without my input, consent or approval.  Additionally, I do not feel it is appropriate to baptise the children jointly when there is so much conflict and animosity from [the father] to me.  I am open to the idea of possibly baptising the children at some stage after the conclusion of these proceedings.

6. The father contended that the orders sought by him should be made on the basis that there is no dispute between the parties that the children should be baptised into, and bought up in, his faith.  The mother did not challenge the father’ contention regarding the children’s religious upbringing, but maintained that she did not wish for the children to be baptised at this time, given the current level of disputation between the parties and the less than pleasant environment that would likely exist at such a baptism, on what would, otherwise, be a day of celebration.  The mother’s position, in the circumstances of this litigation, is perfectly understandable.

7. In the absence of evidence or contentions by the father as to why such an order is in the best interests of the children, and in the face of opposition by the mother, I dismiss the father’s application for orders compelling the mother to facilitate the children being baptised.

8. For completeness, I note there is doubt as to whether the Court has power to make such an order.

9. Section 116 of the Commonwealth of Australia Constitution Act 1900 (“the Constitution”) relevantly provides:

   Commonwealth not to legislate in respect of religion

   The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.  [Emphasis added].

10. That prohibition on the Parliament of Australia enacting any legislation that would impose religious observance necessarily applies to enacting legislation that would empower any other body, including a court or tribunal, to make an order imposing religious observance.

11. In P & L [2006] FamCA 947, the Full Court said at 125:

    The father correctly identified the effect of s 116 of the Constitution by reference to the discussion by Latham CJ in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth[1943] HCA 12; (1943) 67 CLR 116 where his Honour, having noted that ‘s. 116 is an express prohibition of any law which falls within its terms’ said, ‘[a]ccordingly no law can escape the application of s. 116 simply because it is a law which can be justified under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s. 116 imposes’ further said ‘[t]he prohibition in s. 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance’.

12. At 127, the Full Court said:

    The principles emerging from the cases are conveniently summarised by Dickey in Family Law (Sydney: LawBook Co, 4^th ed, 2002) at 419 as follows:

    ‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing for a child to a non religious upbringing. What may weigh heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion.’  [Emphasis added].

13. It is common for the Court to make orders giving one parent responsibility to make decisions in relation to a child’s religion.  The father’s application is not, however, for such and order.  The father’s application seeks an order in the nature of a mandatory injunction, requiring the mother to “do all acts and things and sign all documents necessary to facilitate the children's baptism in [his] faith”.  As such, the proposed order would impose upon the mother an obligation to participate in a religious observance, namely the baptism of the children.

14. As such, while I have rejected the father’s application on the basis of his failure to establish why such an order is in the best interests of the children, it is also my view that the order he seeks is beyond the power of the Court.

C. Parental responsibility

1. At present, both parties are seeking final orders for equal shared parental responsibility.

2. Section 61DA of the Act relevantly provides:

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

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

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

   b. family violence.

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

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

3. In Dundas & Blake (2013) FLC 93-552, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that it would not be in the interests of the children for that presumption to apply. In that context, at 87,399, the Full Court said:

   In our view, the mandatory requirement to apply the presumption unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.

4. In VR & RR (2002) FLC 93-099 at 88,937, the Full Court said:

   In our view, it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made.

5. At the same time, it needs to be appreciated that sub-sections 65DAC(2) and (3) provide that, in the event of an order being made for parents to have shared parental responsibility, in circumstances where that responsibility requires that a decision about a major long-term issue in relation to the child be made:

   (2) The order is taken to require the decision to be made jointly by those persons.

   …

   (3) The order is taken to require each of those persons:

   (a) to consult the other person in relation to the decision to be made about that issue; and

   (b) to make a genuine effort to come to a joint decision about that issue.

6. While these are interim proceedings, on the basis of the evidence before me, I am satisfied that each of the parties has been somewhat arrogant and discourteous in making or attempting to make decisions in respect to the children without consulting the other party.  It may well be that, as result of the parties’ poor communication, at a final hearing, it will be necessary to make orders giving one or other of them sole parental responsibility, at least in respect to certain matters concerning the children.

7. However, having regard to the authorities to which I have referred and s 65DA(3) of the Act, I am not satisfied that, in these interim proceedings, it would be appropriate for me to make orders, as sought by the mother, for her to have sole parental responsibility.

The children’s education

1. There is clearly a live issue between the parties concerning the children’s education and in particular, that of X, who is due to commence school in 2019.  As noted, the mother contends that she should be given parental responsibility in respect to the school that the children attend.

2. In that context, I note that on 18 November 2015, an order was made for the parties to have equal shared parental responsibility.  That order was made by consent. 

3. By order made on 21 June 2016, the mother was given sole parental responsibility for decisions regarding the children’s daycare.

4. Counsel for the mother made submissions in relation to the parties’ historical difficulties in reaching agreement in relation to the children’s daycare arrangements.  She submitted that interim orders had been made for the mother to have sole parental responsibility with respect to the children’s daycare arrangements in circumstances where the father had previously contacted a daycare centre at which the mother had made enquiries in relation to the enrolment of X, in order to advise that he did not consent to that enrolment.  As a consequence, X lost her enrolment place at that childcare centre.  This, the mother stated, caused great inconvenience at a time when she was preparing to return to the workforce following maternity leave. 

1. The mother states, as paragraph 28 of her Affidavit filed on 4 May 2018, that she put the father on notice of her intention to enrol X at G School by way of a letter addressed to his solicitors, dated 25 January 2018.  That letter, attached to the mother’s Affidavit as Annexure “R”, states:

   Please inform us by … [of the father’s] position regarding the mother enrolling [X] in school for next year.  [The mother’s] intention is to enrol [X] in a public school which is central to her home and the children’s childcare and activities for the 2019 school year. 

   …the schools proposed by the father are far out of [the mother]’s local area. 

2. The Court accepts the submission of Counsel for the father that, in the context of the father being of the understanding that the mother and the children were continuing to reside at the Suburb C property, that letter could reasonably be construed as alluding to schools in the Suburb C area, rather than the Suburb G area.  The Court does not accept that this letter amounts to the mother putting the father “on notice” of her intention to enrol X in G School.

3. After the mother received no response to that correspondence, and following her decision to relocate to Suburb G, the mother’s solicitors wrote to the father’s solicitors on 15 March 2018 advising that the mother and the children had relocated to the Suburb G property.

4. The mother says that the father has taken X to open days at private schools close to the Suburb F property, without her knowledge or consent.

5. At paragraphs 17(x) to 17(cc) of the mother’s Affidavit, she says that the father engaged in similarly difficult conduct in relation to an application for Y’s birth certificate.  The mother states that she completed a birth certificate application form with respect to Y and provided the same to the father for signature.  The mother says that, at the time of Y’s birth, she and the father had agreed that Y’s middle name would be “Z”, as this was the father’s middle name and her maiden name.  The mother says that the father unilaterally amended the application form to insert “W” as Y’s second middle name, being the name of the paternal grandfather.  In correspondence to the mother’s solicitors, the father’s solicitors contend that the parties had previously agreed to Y having the middle names “Z” and “W” and conceded that the father had, himself, included the middle name “W” on the application form, prior to sending it to the Department of Births, Deaths and Marriages.

6. As noted above, s 60CA of the Act requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order.  This includes orders relating to which school a child should attend.

7. In Re G: Children’s Schooling (2000) FLC 93-025 at 87,400, the Full Court considered the issue of a child’s schooling. The Full Court held that the object and principles set out in s 60B of the Act “are to be taken into account in the course of considering the relevant matters in s68F(2) which provide a check list to meeting the essential enquiry required by s65E”. Under the current Act, the relevant matters which were previously set out in s 68F(2), are now contained in s 60CC of the Act. Section 60CA of the Act now replaces s 65E.

8. In addition, the Full Court, in Re G (supra), noted at 87,416 that “the reality of the children residing predominantly with one parent” may be a relevant consideration.  

9. A further relevant consideration is which school is closer to the children’s residence (at 87,419).

10. For the reasons previously stated, I do not, in these interim proceedings, propose to make an order giving the mother sole parental responsibility in respect to the children’s education.  However, to avoid further resources of the parties and the Court being allocated to adjudicating this issue, I propose making an order confirming the parties’ statutory obligation to consult with each other in respect to that matter and, in the event of the parties being unable to reach agreement, the default position will be that the children will attend a public school determined by the New South Wales Department of Education to be appropriate, having regard to the children’s place of residence.

The children’s health care

1. The mother has also sought orders that she have sole parental responsibility for decisions regarding the health, medical diagnosing and medical treatment for the children, as well as for liaising with medical providers, scheduling medical appointments and attending appointments concerning the children's medical treatment.

2. Counsel for the mother submitted that the father has not worked cooperatively with the mother in relation to Y’s health concerns, which have included “difficulty with narrow airways, large adenoids and consequently, sleep apnoea”.  The mother says that, on 4 August 2016, she consulted Dr M, paediatric ENT specialist, in regards to Y.  The mother says that she contacted the father as to the outcome of that appointment and that the father subsequently cancelled Y’s scheduled surgery. 

3. The mother says that in February 2017, the father took Y to a General Practitioner and received a referral for a sleep study.  That sleep study concluded that on average Y stopped breathing 16 times per hour.  The mother says that she made appointments with Dr M to review that sleep study.  The mother says that the father cancelled those appointments.  The mother says that on 11 April 2017, the father consulted Dr K to obtain another opinion in respect of Y. 

4. On 23 May 2017, the parties attended upon Dr M and, in June 2017, Dr M performed surgery on Y.

5. The father contends that, while the mother has provided evidence, commencing at paragraph 17 of her Affidavit filed on 4 May 2018, regarding the father’s response to having been notified of Y’s health concerns, the mother neglects to state that she obtained medical advice, including in respect to Y having surgery, without notifying him that she was obtaining that advice.  The father contends that the prospect of surgery was presented to him as a “fait acompli” after it had been arranged by the mother.

6. The father contends that the prospect of a child undergoing surgery is so significant that he was entitled to be consulted and involved in the process and, as result, he sought a second opinion from Dr K.  The father notes that he invited the mother to attend that consultation and that she did so attend.  The father notes that when that second opinion also confirmed the need for surgery, it was undertaken. 

7. While the process that the parties engaged in in order to determine whether Y underwent surgery was protracted, it remains the case that the decision for a child to undergo surgery is a major decision that ordinarily justifies the consideration and input of both parents.

8. In these interim proceedings, I am unable to determine the merits of the parties’ respective positions.  There are indications that the father’s position may have been unreasonably stubborn, however, at the same time, there are also indications that the father’s reaction may have been in response to some discourtesy on the part of the mother in failing to consult him at an earlier point in time regarding the need for Y to undergo surgery.

9. In the circumstances, and given the potential significance of decisions impacting upon the children’s health, I determine that it would not be appropriate for the Court, in these interim proceedings and having regard to s 65DA(3) of the Act, to make an order allocating sole parental responsibility in respect to the children’s healthcare to the mother.

Costs

1. Section 117 of the Act sets out the basis upon which the Court is empowered to award costs, as follows:

   (1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)  If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.

   (2A) In considering what order (if any) should be made under subsection (2), the Court shall have regard to:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g) such other matters as the Court considers relevant.

   (3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the Court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the independent children’s lawyer in respect of the proceedings.

   (4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:

   (a) a party to the proceedings has received legal aid in respect of the proceedings; or

   (b) the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;

   the Court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.

   (4A)  If:

   (a) under section 91B, an officer intervenes in proceedings; and

   (b) the officer acts in good faith in relation to the proceedings;

   the Court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

   (5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the Court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.

2. The general rule in family law proceedings is that each party bears his or her own costs.  However, that rule yields whenever the Court finds that there are circumstances justifying the making of an order for costs: Penfold v Penfold (1980) 144 CLR 311 at 315.

3. A litigant seeking a costs order in the Family Court must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations, as set out above, before such an order is made:  Prantage & Prantage (2013) FLC 93-544 at 87,216. Although the applicant for costs must establish circumstances which would justify an order for costs, it is not the case that a costs order can only be made in what has been described as “a clear case”: Penfold v Penfold (supra).

4. The considerations set out in s 117(2A) of the Act must be taken into account in deciding whether or not to order a party to pay the costs of another: In the marriage of I & I (No. 2) (1995) FLC 92-625. However, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made: Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at 130.

5. There is some controversy as to whether a different standard applies in considering the issue of costs in respect to property proceedings, on the one hand, and parenting proceedings, on the other.  In Hawkins & Roe (2012) 47 Fam LR 526, the majority (May and Ainslie-Wallace JJ) said, at 549:

   While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

6. However, in Wrensted & Eades (2016) FLC 93-697, the Full Court expressed some concern with that analysis, if it was to be construed as establishing extra-legislative guidelines or criteria for the making of a costs order in parenting cases. In that respect, the Full Court said at 81,153:

   However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion.  [References omitted].

7. I respectfully agree with the reasoning of the Full Court in Wrensted & Eades (supra) in finding that there is no distinction in the legislative considerations that the Court is required to have regard to in respect to an application for costs in parenting proceedings, as opposed property proceedings.

8. The mother has made an application for costs in respect of this application.  Counsel for the mother submitted that, in determining that issue, the Court should have regard to the financial circumstances of the parties (s 117(2A)(a)), the conduct of the parties in relation to the proceedings (s 117(2A)(c)) and the possibility that the father may be wholly unsuccessful in his application (s 117(2A)(e)).

9. The father made, firstly, an application for costs to be reserved or, in the alternative, for costs in respect of his application.  Counsel for the father submitted that there is little information before the Court in relation to the parties’ financial circumstances and that the question of either party’s application being wholly unsuccessful would only be answered upon my judgment being handed down.

10. However, the evidence satisfies me that the mother is effectively solely responsible for the financial support of the children.  The mother states that she finds it challenging to meet her own financial commitments, as well as those incurred in supporting the children.  Until recently, she has borne that responsibility entirely herself.  She is currently receiving minimal assistance from the father.

11. In order to support herself and the children, the mother returned to the workforce and is balancing the challenge of earning an income with her responsibilities as the children’s primary carer.

12. In the context of meeting those responsibilities, she has previously confronted an application by the father seeking orders for her to relocate the children from the Suburb C property to the Eastern Suburbs.  That application was eventually not pursued by the father.  However, its discontinuance occurred at the point of the hearing, in circumstances where the mother had already incurred costs in respect to that application.

13. In these proceedings, the father has been wholly unsuccessful in respect to each of his applications. His application in respect to the relocation issue was the dominant issue in these interim proceedings and occupied the majority of the hearing and the parties’ preparation: Short v Crawley (No. 40) [2008] NSWSC 1302 at [33].

14. While the mother has not obtained the orders she sought, her applications were made in response to this matter being brought before the Court by the father.  Further, the Court has recognised that a legitimate issue was raised by the mother in respect to the need to resolve the dispute between the parties in respect to the school X is to attend next year.

15. The mother also raised the issue regarding parental responsibility in respect to healthcare.  In respect to that matter, there is clearly a dynamic involved in the parties’ interactions that creates some cause for pessimism regarding their future capacity to resolve disputes in respect to major decisions concerning the children’s healthcare.  As I have previously noted, it may well be that, at final hearing, the Court decides that it is appropriate to make orders allocating parental responsibility to one or other of the parents in order to avoid ongoing disputation between them.  In other words, a significant factor in my declining to make orders as sought by the mother in respect to parental responsibility concerning the children’s healthcare was that these are interim proceedings.

16. I accept that there is little evidence before the Court concerning the parties’ financial circumstances.  The only evidence that is available is that the father has declared an income resulting in him being required to pay child support in the sum of $2,780 per annum.

17. On the other hand, in circumstances where the mother was not challenged on her evidence that, even in respect to that small amount, the father is $1,000 in arrears, the father has taken it upon himself to engage his solicitors and to retain Counsel to make an application that I have found to be without merit.

18. In circumstances where the mother is balancing work and family commitments which are not inconsiderable, given her responsibilities as a single mother and the inadequate financial support that she receives from the father, it would be entirely inequitable for her, for a second time, to face the additional burden of having to meet legal costs in respect to yet another interim application by the father to this Court. 

19. Accordingly, for these reasons, I order the father to pay the costs of the mother in respect to this application as agreed or assessed.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland J delivered on 17 August 2018.

Associate: 

Date:              17 August 2018