Elia and Wilson
[2012] FMCAfam 548
•21 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELIA & WILSON | [2012] FMCAfam 548 |
| FAMILY LAW – Children – twin boys aged four years – relocation – same sex parents – relocation allowed after further period of approximately eighteen months. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Heath & Hemming (No.2) [2011] FamCA 749 U & U (2002) 211 CLR 238 |
| Applicant: | MS ELIA |
| Respondent: | MS WILSON |
| File Number: | CAC 831 of 2011 |
| Judgment of: | Cassidy FM |
| Hearing dates: | 13, 14 & 15 February 2012 |
| Date of Last Submission: | 15 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 21 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2008 (“the children”).
That the children live with the applicant.
That the applicant be at liberty to change the residence of the children to the Northern Sydney region on or after 4.00pm on 31 October 2013.
That the respondent spend time with the children while they reside in Canberra as follows:
(a)Each alternate weekend from 5.00pm or after childcare on Friday until before childcare or 9.00am on Monday;
(b)Each Wednesday from 5.00pm or after childcare until before childcare or 9.00am on Thursday;
(c)On the birthday of the children from 2.00pm until 9.00am on the following day;
(d)During 2012 on four (4) separate occasions for four (4) consecutive nights between 1 March and 30 November, with the respondent to nominate the occasions and notify the applicant in writing no less than fourteen (14) days prior to each occasion;
(e)During 2013 on four (4) separate occasions for five (5) consecutive nights between 1 January and 30 November, with the respondent to nominate the occasions and notify the applicant in writing no less than fourteen (14) days prior to each occasion;
(f)During the Christmas holidays in 2012/2013, from 3.00pm 23 December until 12noon Christmas Day;
(g)On Mother’s Day, from 2.00pm until 6.00pm; and
(h)By Skype or comparable electronic means, and for that purpose, the applicant shall establish and maintain a Skype account and shall facilitate the respondent communicating with the children at that account each Monday and Thursday at 6.00pm NSW time, with the applicant to initiate the contact to the respondent.
That the respondent spend time with the children while they reside in the Northern Sydney region:
(a)Every second weekend from 5.00pm Thursday until 2.00pm Sunday, until the children commence school and thereafter from 5.00pm Friday until 2.00pm Sunday;
(b)During January 2014 for two separate occasions of one (1) week blocks, with the respondent to nominate the two blocks of time and notify the applicant in writing no less than fourteen (14) days prior to 1 January 2014, and thereafter for half of all school holidays being the first half in odd numbered years and the second half in even numbered years;
(c)On Mother’s Day weekend in even numbered years;
(d)All such other times as may be agreed between the parties;
(e)By Skype or comparable electronic means, and for that purpose, the applicant shall establish and maintain a Skype account and shall facilitate the respondent communicating with the children at that account each Monday, Wednesday and Saturday at 6.00pm NSW time, with the applicant to initiate the contact to the respondent; and
(f)By telephone at all reasonable times, and for that purpose, the applicant shall provide the respondent with her landline number and a mobile number where the children can be contacted.
That pending the respondent obtaining her full drivers licence and owning or having access to a vehicle, or the children commencing primary school, whichever occurs first:
(a)The applicant and/or her agent deliver the children to and collect them from the respondent in Canberra on three out of every four occasions of weekend time pursuant to Order 5(a) and the respondent and/or her agent be responsible for travelling to spend time with the children on one out of four such occasions;
(b)The applicant and/or her agent deliver the children to the respondent in Canberra at the beginning of care periods in Order 5(b) and (c) and the respondent and/or her agent deliver the children to the applicant at the conclusion of each such care period.
Upon the respondent obtaining her full drivers’ licence and owning or having access to a vehicle, or the children commencing primary school whichever occurs first:
(a)The respondent and/or her agent travel to a place nominated by the applicant in the Northern Sydney region to collect and return the children in accordance with Order 5(a) on every second occasion of such time and the applicant and/or her agent travel to Canberra to deliver and collect the children in accordance with Order 5(a) on every other occasion of such time.
That the applicant and respondent establish and maintain Skype accounts within their respective households and keep the other advised of the particulars of the accounts.
That unless otherwise agreed, the applicant and the respondent will ensure that the children attend [A] Child Care Centre no less than two (2) days per week.
That each party is restrained from denigrating the other party, or members of the other party’s family, to or in the presence or hearing of the children and shall use their best endeavours to ensure that no other person does so.
That the parent with whom the children are living shall facilitate the other parent having telephone communication with the children at all reasonable times.
That each parent shall notify the other parent as soon as practicable, and keep that parent informed, of any occasion when the children attend upon a medical professional.
That this order operates as authority for any professional care provider of the child/ren, whether a school, doctor, hospital, psychologist or otherwise to release, upon the request of either party, any information (or documents) to either of them concerning the care, welfare and development of the child/ren. Should either party seek any document in relation to the child/ren (including but not limited to school photographs and school photograph order forms), both parties shall be at liberty to do so.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parties shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parties shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the party wishing to make the change to the Orders shall nominate three practitioners and advise the other party in writing of their fees, experience and availability;
(d)The other party shall choose one of the listed practitioners within seven days of receipt of the list; and
(e)If the other party fails to choose, then the party wishing to make the change to the Orders will choose the Family Dispute Resolution Practitioner.
NOTATION:
(A)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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Elia & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
CAC 831 of 2011
| MS ELIA |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
(As Corrected)
Introduction
This is a matter where the parents have asked the court to decide future parenting arrangements for twin boys, [X] and [Y]. They were both born [in] 2008. The boys are now three years old and they will be four in March.
The Applicant’s Proposal
The orders sought by the applicant are set out in draft orders that were tendered by consent at the beginning of the trial. If the Court were to make those orders, the parties would have equal shared parental responsibility. The children would live with Ms Elia and the applicant would be permitted to relocate the children’s residence to the northern Sydney region. There were proposals for Ms Wilson, the respondent, to see the children every alternate weekend and some increasing periods of block time commencing in January 2013 for three blocks of four nights and culminating in half of all school holidays from 1 January 2015.
The Respondent’s Proposal
The respondent’s proposals were set out in a draft order that was tendered by consent at the beginning of the trial. If I were to make those orders, there would be equal shared parental responsibility (sought by both parents). The respondent seeks an order restraining the applicant from removing the children from the Australian Capital Territory and that the children live with each parent on a week-about arrangement.
Ms Wilson also seeks a non-denigration order, some telephone contact and Skype contact, and a notice for the parties taking the children to any medical profession to notify the other party. The respondent also seeks to obtain the opinion of an expert as to when the children should start school.
In the alternative, if the children are permitted to relocate, the respondent seeks equal time with the children until they commence school. Then, when the children start school, time in Canberra for the first weekend of each month and equal school holiday time.
The Court’s Proposal
Consistent with the principle set out in U & U (2002) 211 CLR 238, I indicated to the parties an alternative proposal that occurred to me during the trial. This was to permit the children to relocate but not until a later stage, perhaps October of 2013, and to enable the children to commence school at the beginning of 2014 in the northern Sydney region.
The Materials
The applicant’s material was set out in an outline of case that was filed by leave on 13 February 2012. There was a further affidavit of the applicant filed on 8 February 2012 that was not included in the outline of case but that I considered.
The respondent’s material was the material in the outline of case that was filed by leave on 13 February 2012. I also considered subpoenaed material, in particular, exhibits 1 to 7, and I considered a family report of Ms D. That report was dated 29 November 2011.
The Law with Respect to this Matter
I indicated to the parties that I did not wish to read onto the record a lengthy dissertation on the law, so I provided to counsel (during the trial) the decision of Heath & Hemming (No 2) [2011] FamCA 749:
“[63] Part VII of the Family Law Act 1975 (Cth) ("the Act") (ss 60A to 70Q) provides the statutory framework in which the court exercises its power to make parenting orders.
[64] Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
[65] Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
[66] Section 60CC of the Act identifies the "primary considerations" (s 60CC(2)) and the "additional considerations" (s 60CC(3)) the court must consider in determining what is in the child's best interests. That requirement is supplemented by the further requirement for the court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
[67] Section 65D of the Act provides the source of the court's power to make a "parenting order". Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
“65D court's power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.”
[68] Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subs (2) and further, 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. (s 61DA(4) of the Act).
[69] As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subs (1) of that provision provides as follows:
“(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
[70] Subsection (2) requires, where a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child and the court does not make an O (or include a provision in the Order) for the child to spend equal time with each of the parents, the court to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
[71] “Substantial and significant time” within the meaning of subs (2) is defined by subs (3) as follows:
“(3) For the purposes of subs (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(a) days that fall on weekends and holidays; and
(b) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(a) the child's daily routine; and
(b) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
[72] The determination of “reasonably practicable” depends upon consideration of subs (5) and the matters there identified.
[73] In MRR v GR (2010) 240 CLR 461, the High Court observed (at [9] of the judgment):
“[9] Each of subss (1)(b) and (2)(d) of s 65DAA requires the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subs (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.”
[74] At [13], the High Court held:
“[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as subs (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
[75] Further, of particular significance to a case such as this, where there is the prospect of international relocation of a child, I note that at [15] of the judgment, the High Court held:
“[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
[76] In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full court of this court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (above). At para 140 of their reasons, the Full court said:
“… however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.”
[77] At paras 334 and 335, the Full court dealt with the order in which the statutory provisions in Part VII are best considered and said:
“Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. "Parenting order" is defined in s 64B. Section 60CC then sets out how to determine what is in a child's best interests. Section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the "best interests" considerations, and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).”
[78] After considering the requirements in section 65DAA, at para 374 of their reasons, the Full court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
“As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.”
[79] At para 375 of their reasons, the Full court said:
“Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.”
[80] The Full court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subs (5) of s 65DAA as a mandatory requirement.
[81] In Cowley & Mendoza(2010) 43 Fam LR 436; [2010] Fam CA 597, Murphy J, in a parenting case involving the mother's proposed relocation to live in Brazil with the children undertook an analysis of authorities emanating from the Full court of this court as to the preferred legislative pathway that ought be followed by a trial judge and reviewed those authorities in light of the decision of the High Court in MRR v GR (2010) 240 CLR 461. At para 41 of the judgment, Murphy J set out an approach to the legislative pathway. I do not, in setting out below a somewhat different approach, purport to conclude either expressly or by inference that the approach identified in that case by Murphy J is not legitimate. For the reasons set out below I propose to undertake consideration of the s 60CC considerations before dealing with s 61DA.
[82] In Edelman & Ziu (No 2) [2010] FamCAFC 236 the Full court reviewed the decision of a Federal Magistrate in a case involving a proposed relocation by a mother with the child two hours away to B from the father's place of residence at L. The father had sought that the child remain living at L and if the mother also lived there that there be equal shared care and if the mother moved to B, for the child to live with him. Some grounds of appeal agitated that the Federal Magistrate had failed to follow the legislative pathways under s 65DAA.
[83] The approach taken by the Federal Magistrate (in reasons delivered prior to the High Court's decision in MRR v GR) was to:
(a) set out each parties' respective proposals;
(b) set out his conclusions in relation to the primary considerations (s 60CC(2)) including findings that it was important that the child had a meaningful relationship with both parents and that there was no need to protect the child from being exposed to the risk of family violence, abuse or neglect;
(c) then considered and weighed each of the relevant additional considerations (s 60CC(3));
(d) then considered s 61DA (the presumption of equal shared parental responsibility). The Federal Magistrate found the presumption applied (there was no abuse or family violence) and that the presumption was not rebutted on best interests considerations. The Federal Magistrate indicated that he proposed to make an order for equal shared parental responsibility;
(e) then considered s 65DAA and whether to make orders that the child spend equal time or substantial and significant time, with each parent. The Federal Magistrate was not satisfied that the mother would be prepared to live in L and consequently concluded that it was not "practicably possible for a week about arrangement to continue". The Federal Magistrate found that it was in the child's best interests to live predominately with the mother. The Federal Magistrate therefore rejected an equal shared parenting time order.
[84] The Full court found that the Federal Magistrate had adequately explained why he had reached the conclusion that it was in the child's best interests to live predominately with the mother. The Full court found that the Federal Magistrate had carefully weighed and balanced each of the s 60CC(2) and (3) considerations. The Full court was satisfied that the Federal Magistrate (in the words of the High Court) had looked at the reality of the situation and concluded that it was in the child's best interests to be with the mother and not reasonably practicable for the mother to live in L.
[85] The Full court concluded (at 40 and 41):
“40. The Federal Magistrate's discussion on whether substantial and significant time was in the child's best interests and was reasonably practicable can be found in para 98 of his Honour's reasons. It is clear that as the travelling distance between the two households was of approximately two hours duration, it was not reasonably practicable to make an order for mid-week time and the Federal Magistrate, given the child's relatively young age, he should spend two weekends out of three with the father.
41. We take this opportunity to note that the Federal Magistrate's reasons were delivered prior to the High Court decision in MRR v GR. Having had the benefit of the High Court's explanation of the requirements of s 65DAA it may be noted that the structure of his Honour's reasons in respect of this section could, in hindsight, have been set out with greater clarity if drafted with the benefit of the High Court's reasons for judgments.”
[86] In the event, the appeal was dismissed.
APPROACH TO PARENTING CASES
[87] Upon my review of the authorities it seems to me that the following is a logical and practical approach by the court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: —
(a) Identify the respective proposals of each of the parties and any proposals of the court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b) Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the "best interests" considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subs (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (above))
(c) Consideration of and findings about the s 60CC considerations will result in findings one way or the other about "abuse" and "family violence" within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d) In determining best interests the obligation upon the court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (above) at [355] cited with approval in Sigley & Evor(2011) 44 Fam LR 439 at [142]).
(e) Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to "abuse" or "family violence" (s 61DA(2)) and the findings on "best interests" considerations (s 61DA(4)).
(f) If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g) If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the court must consider:
(a) Whether an order for equal time is in the child's best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b) Whether an order for substantial and significant time would be in the child's best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h) The questions about "best interests" posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i) To answer the question of "reasonably practicable" regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in para 15 of its judgment in MRR v GR (above) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
[88] I note that by the express terms of s 65DAA that section is only "triggered" if a parenting order provides, or is to provide, that a child's parents are to have equal shared parental responsibility for the child. In circumstances where s 61 of the Act provides that each of the parents has parental responsibility for a child, which has effect subject to any order of the court, the question arises that if no order for equal shared parental responsibility is sought or made whether s 65DAA is rendered unnecessary to consider. That question was considered by the Full court in Marvel & Marvel(2010) 43 Fam LR 348 at [88] to [104] and at paragraph [104] the Full court said:
“As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue. It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of ss 61C, 61D, 61DA, 65D(1) and 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA … )”
[89] So far as I am aware, no subsequent Full court has considered the matter further but having regard to Marvel & Marvel (above) it seems to me that a trial judge should take the approach of making an order for equal shared parental responsibility when the presumption in s 61DAA applies.
[90] In outlining the approach identified in para 87 above I am mindful that in Goode & Goode (2006) FLC 93-286 the Full court observed at paragraph [56]:
“In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child's parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in subs (2), (3) and (4).”(my emphasis)
[91] Read literally and in isolation it might be thought that on one interpretation the Full court was directing or guiding a trial judge to approach the findings to be made in a parenting case with the s 61DA presumption applying at the outset before any other statutory imperative has been fulfilled.
[92] In my view, read in context, Goode (above) does not dictate that approach for a number of reasons.
[93] First, s 60CA is expressed:
“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.”
(emphasis added)
Section 60CC sets the considerations the court must consider in making the determination of a child's best interests.
[94] In contrast, ss 61DA(1) and (3) commence with "when making a parenting order … " and "when the court is making an interim order … " respectively. That difference would seem to reflect some distinction between, first, determining best interests and, second, making orders. It is at the making of orders stage that s 61DA applies.
[95] While the Full court in Goode did not advert specifically to that distinction in the legislation the focus of the judgment was upon "parental responsibility" in an interim proceeding. Paragraph [56] appears under the heading "What is the significance of the specific references to parental responsibility and interim proceedings in the Act?" Earlier, commencing at paragraph [43] the Full court had observed:
“43. Thus, in summary, when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parenting responsibility. The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (s 61DA(2)) … the presumption may be rebutted if the court is satisfied that it would conflict with the child's best interests (s 61DA(4)).
44. The importance of s 61DA is that if the court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for the consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the court must consider making an order that the child spend equal time with each of the parents …”
(emphasis added)
[96] Second, I am fortified in my interpretation of Goode as meaning that the s 60CC considerations must be considered prior to determination of whether or not the s 61DA presumption applies by paragraph [82] of the judgment where the Full court sets out, in list form, the process to decision. Whilst that is specific to "an interim case" in this context there is no difference to that approach and the approach to final orders and the listing in paragraph [82] indicates that consideration of the s 60CC considerations occurs prior to determining whether or not the s 61DA presumption applies.
[97] Further, s 61DA(2) commences with the words "the presumption does not apply if … ". It would seem illogical, in the face of that express provision, and contrary to that provision, to apply the presumption as a starting point before undertaking consideration of the s 60CC considerations. Whilst s 61DA(4) is expressed in terms of the presumption being rebutted, again it would seem illogical to apply the presumption at the outset before considering the "best interests" considerations and then rebut the presumption if necessary. The enquiry dictated by s 61DA is whether or not the presumption applies and that can only be determined when findings about "abuse"; "family violence" and "best interests" have been made in accordance with s 60CC.
[98] In both Collu v Rinaldo (above) and Sigley v Evor (above) differently constituted Full Courts have delivered judgments reflecting the approach that the s 60CC determination occurs prior to considering s 61DA and likewise in Edelman v Ziu (above) the Full court did not express any criticism of the trial Federal Magistrate in taking that approach.
APPROACH TO PARENTING CASES INVOLVING PROPOSED RELOCATION
[99] Reference to the "best interests" considerations in s 60CC of the Act makes it plain that in every parenting case it is necessary to consider the relevant factual history of the parties; the relevant factual history relating to the parenting of the child the subject of the proceedings; the current arrangements as well as the proposals of each party for future parenting arrangements, amongst many other considerations.
[100] In other words, the process is not undertaken in the abstract or in a theoretical context, but must have regard to the particular child and the particular past history of that child and his or her parents with future parenting proposals considered in the context of that background.
[101] Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of "relocation cases" because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both "best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of "best interests" may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's "best interests" being served by Orders which do not give one parent "optimal" arrangements or outcomes.
[102] By the same logic, the court is not bound by the parties' proposals in the sense that only one or other proposal can be reflected in parenting orders. The statutory imperatives demand that the court must consider proposals which meet the "best interests" criteria independently of the proposals of the parties, although, of course, the parties' own respective proposals must be carefully considered and taken into account and procedural fairness must be accorded to the parties in respect of alternate proposals the court might consider (AMS v AIF (above) and U v U (above)). It is essentially by reference to the parties' competing proposals from which the assessment of "best interests" considerations proceeds as well as any alternative proposals the court might contemplate.
[103] The process suggested above in para 87 will identify the advantages and disadvantages, in terms of best interests, of each of parties' respective competing proposals. Where disadvantages are identified in the process the court may consider, subject to the need to accord procedural fairness to the parties, whether there are modifications that might be made to the parties' proposals which eliminate or minimise such disadvantages.
[104] It seems to me that in any parenting case, including one involving a proposed relocation, the approach outlined in para 87 above will meet the statutory imperatives and it is the approach I propose to take in this case. That noted, my review of the authorities indicates that in parenting cases involving a proposed relocation one or more of the following inter-related factors (without being exhaustive) may assume particular prominence in the best interests determination.
(a) s 60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child's parents. Similarly, s 60CC(3)(b) requires the court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s 60B also contain various references to the involvement of both parents in the life of their child.
In Sigley v Evor (above) the Full court recently considered what is required by the term "meaningful relationship" in s 60CC(2)(a). The Full court:
(i) approved the interpretation that a "meaningful relationship" is one which is important, significant and valuable to the child (citing Mazorski v Albright(2007) 37 Fam LR 518 per Brown J and McCall v Clark (2009) FLC 93-405 per the Full court);
(ii) concluded that the preferred interpretation of "benefit to the child of having a meaningful relationship" in s 60CC(2)(a) is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full court as "the prospective approach"). However, the Full court noted that s 60CC(3)(b) requires a court to explore existing relationships between a child and the child's parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child's relationships at the date of hearing (referred to by the Full court as "the present relationship approach") may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii) confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S (2007) FLC 93-313 per Dessau J at [38]–[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]–[36] and Champness v Hanson (2009) FLC 93-407 per the Full court at [103]);
(iv) concluded that "meaningful relationship" is a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child's best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child's age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a "meaningful relationship" with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
(b) The s 60CC(3)(b) consideration of the nature of the child's relationships is not confined to child/parent relationships, and in circumstances where either or both parents have re-partnered and/or have other children and/or there are relatives of the child, the proposed relocation may need to be considered in light of a number of relationships between the child and other relatives, or indeed "other persons" (and it is to be noted that s 60C(3)(d) requires specific consideration to be given to the likely effect on the child of any separation from, inter alia, any other child or person with whom the child has been living).
(c) Each of the additional considerations expressed in s 60CC(3)(c), (f) and (i) focus upon parenting capacities in one form or another. Likewise s 60CC(4) focuses upon the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent, in particular in the period post-separation of the parties (s 60CC(4A)).
In Sigley v Evor (above) the Full court referred to the significance of the features that the father in that case, who was opposed to the proposed intrastate relocation of mother and child, had very little involvement in the care of the child and had spent very little time with the child, despite the efforts of the mother. Against that background, the Full court highlighted that the trial Federal Magistrate had failed to properly consider s 60CC(4) and to consider whether the father would remain committed to an order for him to spend regular time with the child.
If the parent who proposes to relocate has a poor history of promoting the child's relationship with the other parent that may, weighed in the balance with other factors, (including the "meaningful relationship" assessment referred to above) have determinative significance. Conversely, if the child has a meaningful relationship with the non-relocating parent despite the historical experience of little care by and time with that parent, Orders might readily be framed to promote the meaningful relationship even if relocation is permitted.
(d) The additional consideration expressed in s 60CC(3)(f), referring to the capacity of parents to provide for the needs of the child can assume prominence where a parent adduces evidence of potentially adverse affects upon that parent's capacity to provide adequate parenting if the relocation is not permitted where that parent is to be the primary carer either because the parties propose that, or the preponderance of s 60CC considerations point that way. However, such evidence must be examined from the perspective of best interests of the child and whether the evidence is sufficient to support a finding of adverse affect upon parenting capacity, not simply a finding of "unhappiness" or "disappointment". In Hepburn v Noble (2010) FLC 93-438 and Sigley v Evor (above) differently constituted Full Courts of this court have recently considered and provided guidance to trial judges as to the sufficiency of the evidence that will be required to support findings to the effect that the capacity of a primary carer to parent a child may be compromised if the wish of that parent to relocate is not granted.
Aside from that, MRR v GR (above) is itself authority for the proposition that a practical analysis must be made and a comparison of the position of the proposed relocating parent if relocation is or is not permitted, having regard to the best interests of the child. Section 65DAA(5)(e) refers to "such other matters as the court considers relevant" and in MRR v GR the High Court referred to such factors as the availability of housing and employment to the mother if she remained in Mount Isa as well as the living conditions and facilities available to the subject child.
(e) The financial circumstances of the parties and their financial prospects are brought into focus by a number of s 60CC considerations in a parenting case involving a proposed relocation, particularly where the proposed relocation may put significant distance between parents and where the financial circumstances of the parents are constrained. The ability to secure a continuation of a meaningful relationship with both parents (s 60CC(2)(a)); the ability of each parent to facilitate a close and continuing relationship with the other parent (s 60CC(3)(c)); the practical difficulty and expense of time and communication (s 60CC(3)(e)); and the capacity of each parent to provide for the needs of the child (s 60CC(3)(f)); are amongst the statutory considerations in determining best interests where financial realities assume significance. Likewise, as the High Court emphasised in MRR v GR (above), application of s 65DAA is concerned with practical realities, and in that case, the High Court referred to the availability to the mother of superior accommodation and employment opportunities available in Sydney compared with those in Mt Isa.
In Godfrey v Sanders (above), Kay J (sitting as the Full court) paid attention to proposals that might be put in place, given the parties' financial circumstances, to achieve the objective of maintaining meaningful relationships consistent with allowing relocation where that appeared to be in the children's best interests. Commencing at paragraph [35], Kay J said:
“The Federal Magistrate was in my view appropriately critical of the proposals that were being put by the mother to commit the modest capital which she and Mr Godfrey had entirely towards the provision of airfares for the children in the ensuing years when the money may have been better directed to providing for their welfare. There was however an alternative route that was clearly available, namely the provision of part of those monies as a pre-condition to the relocation being permitted to ensure that at least for the foreseeable future, say the next four or five years, adequate funds would be set aside to enable the children to visit their father on say four occasions each year and for the father to visit them on two occasions each year if he so desired. There was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances. Of course, such visits could well be supplemented by telephone and internet communication.
…
Whilst the Federal Magistrate was correct in her conclusion that if the mother was unable to pay a substantial part of the travel costs, the result might be that the children would not spend sufficient time with their father to maintain a meaningful relationship with him, there were clearly ways and means by which provision of some of the funds as already discussed could have been secured to avoid that eventuality happening, at least in the foreseeable future.
The Federal Magistrate ought to have weighed very, very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life that she and Mr Godfrey and the children were presently enjoying. The Godfrey household could not look to either father of the children living in their household to provide any meaningful support for the children. Mr and Mrs Godfrey were each looking for better financial prospects than were available to them in the Latrobe Valley. Mrs Godfrey sought to move to a warmer climate. The Godfrey family sought the comfort of their church and it was common ground that such comfort was readily available in Brisbane. …”
(f) Moreover, economic advantage to the child in terms of "best interest" may need to be considered under, for example, s 60CC(3)(m) (any other fact or circumstance that the court thinks is relevant), where a parent is proposing to relocate to pursue a relationship or marriage likely to provide economic benefits to the child. To similar effect were the observations of the High Court in MRR v GR (above), where the High Court had regard to the mother's prospects of employment and the facilities that could be provided for the subject child if the mother were able to relocate from Mt Isa to Sydney.
[105] Thus, whilst it is not the law that a relocating parent has any onus of establishing a bona fide reason for the proposed relocation, plainly the economic prospects of better employment opportunities; better housing or other facilities; enhanced economic circumstances by reason of a provident re-partnership or re-marriage are relevant matters and may, in a given case, assume decisive significance in the determination of best interests. Conversely, limited employment prospects or other financial circumstances of the parties in the place of origin may be relevant to the assessment of the prospect of the party opposing the relocation being able to move if the children move.”
Both counsel adopted that decision as a relevant summary of the principles that I am to apply.
The Background Facts
I have accepted and taken into account the following facts. The respondent was born [in] 1968, and she is presently 43 years of age. Ms Elia, the applicant, was born [in] 1971, and she is presently 40 years old.
The parties met in Newcastle around June of 2003. Ms Elia moved to Canberra and then, subsequently, the parties commenced cohabitation in around November of 2004. The applicant, at that stage, was a [occupation omitted], and the respondent was a [omitted]. In 2005, the applicant, Ms Elia, entered into a training program to become a [omitted]. In 2006, the parties purchased a property at [omitted]. Around June or July 2007, Ms Elia commenced IVF and the parents participated in various appointments during the pregnancy.
In December of 2007, Ms Elia had some difficulties with the pregnancy and suffered from some contractions at 25 weeks. As a consequence of that, it appears Ms Elia took sick leave for the duration of the pregnancy and her parents gave some assistance to her during that period. Whether they lived at the house or not, I am not sure. [Date omitted], the little boys were born. [X] and [Y] were born at 36 weeks, and they remained at the hospital for three weeks. The respondent,
Ms Wilson, was working full-time at [omitted] when the children were born. On 18 July 2008, Ms Wilson resigned. Her evidence is – and it was not contested – that she stopped work on around 18 June 2008. Ms Wilson returned to work at [A] on 13 October 2008.
The applicant, Ms Elia, had 12 weeks of maternity leave, which she took over 24 weeks. Ms Elia then took some annual leave. It was not until January of 2009 that she returned to work. In January of 2009, Ms Elia returned to part-time work, and the parents engaged the services of a nanny to care for the boys while they were working. The nanny was engaged to work full-time from January 2010.
In 2010, the boys and their mother attended Launceston for [omitted] that Ms Elia was required to participate in as part of her specialist training. Ms Elia’s parents also attended at Launceston during that time. Ms Wilson, on four occasions, visited the family in Launceston. She attended early in the relocation on 14 to 18 January. She was down there for about 10 days in March, from around 19 March to 29 March. Ms Wilson was also down there for a couple of days at the beginning of May, from 30 April to 5 May and then from 14 May to 17 May.
In around August of 2010, Ms Elia sat her specialist exam. She was unsuccessful in completing the exam at that stage, and this is not uncommon, according to her evidence. There is no criticism of her by anyone with respect to that point.
In February of 2011, the parties separated, but they remained living under the one roof. At that stage (2011), the boys had also commenced day-care at [A], where Ms Wilson was employed. The applicant’s parents also cared for the boys one day a week from February of 2011, and they had to travel to Canberra from Sydney each week to do that.
There were some difficulties between Ms Wilson and Mrs E Senior that resulted in the grandmother not always staying in the home with her daughter and the children. I am not going to make any findings about that. I accept that there were some difficulties in communication and in the relationship between Ms Wilson and Ms E Senior.
On around 23 August 2011, Brewster FM made orders for the children to live with the applicant, and once the applicant vacated the jointly-occupied property, the Court provided that Ms Wilson spend five nights a fortnight with the children. The applicant was restrained from removing the children from the Australia Capital Territory in the meantime.
At that stage, Ms Elia had applied for a job at Newcastle as a [omitted]. The order made by Brewster FM was to the following effect:
“[1] THAT the mother’s interim application to relocate to Newcastle with the children [X] and [Y], both born [in] 2008 is refused.
[2] THAT upon the parties seeking to occupy the same house the children live with the applicant and the respondent spend time with the children as follows:
(a) On four occasions from 9.00am on Saturday to the commencement of day care on Monday each alternate weekend;
(b) After four such occasions from the conclusion of child care on Friday until the commencement of child care on Monday each alternate weekend;
(c) Each Wednesday from 5.00pm until 9.00am.
[3] THAT if child care is required the parties are to use the [A] child care facility.
…”
The Parenting Arrangements
The parenting arrangements for the children during the relationship were that both parents were involved with the children’s care. The applicant carried the boys during the pregnancy and remained at home to care for them full-time from their birth until January of 2009, when she returned to part-time work. The respondent worked full-time. However, she was available to care for the children out of work hours and for the five months that she did not work in 2008, between June and October.
In 2009, Ms Elia worked part-time and Ms Wilson worked full-time, and the parents employed a nanny during that time. In 2010, Ms Elia returned to full-time work and did her six month rural rotation in Launceston. As I have already indicated, she took the boys with her and Ms Wilson visited on four occasions, as set out in the background facts. The parents were then both working full-time and they relied on the assistance of a full-time nanny. Ms Elia’s parents cared for the boys one day each week also. Ms Wilson was responsible for the care of the children on occasions when Ms Elia did a night shift.
The Post-separation Parenting Arrangements
After separation, the arrangements for the children changed slightly. The parties separated under the one roof in February of 2011, and the boys commenced two days per week at the [A] Childcare Centre. [A]is where Ms Wilson holds a position as a [omitted].
Brewster FM’s orders, as I have indicated, were made on 23 August 2011. Subsequent to that, Ms Elia’s parents have assisted her with the care of the children each week for some days. The parents travel down from [omitted] in New South Wales. This seems to me, on the evidence, to be about a three and a half hour trip for them. The grandfather, Mr E, has been doing a number of the changeovers for the boys to assist the parents in moving the twins between Ms Elia and
Ms Wilson. His evidence impressed me and he impressed me as a person who has been of a great deal of assistance in ensuring that the boys continued their relationship with Ms Wilson. It is a credit to him that he has been able to continue to have a positive relationship with Ms Wilson in this fairly tense and difficult time for the parties.
The Education History of the Children
The parents seem to be in dispute, to a certain extent, in relation to whether these boys should start school in 2013 or 2014. This, they may not need to ultimately have a dispute about, given the orders that I intend to make. However, I do not consider that I have the sort of evidence before me that I would need to make a decision on this issue today. The parents should resolve this issue themselves, if it becomes necessary, with the assistance of some professional expertise.
Domestic Violence / Child Abuse
Fortunately, this is a matter where there are no allegations of domestic violence. It is always a positive to hear such evidence in a case because domestic violence is a very serious issue with respect to the children’s development. Equally pleasing is the fact that there are no allegations of violence or abuse being directed towards the children. It is a credit to both parents that they have been able to manage their separation as well as they have.
Determination of the Relevant Factual Issues
The applicant, in evidence, was cross-examined. She also relied on affidavits listed in the material. Her parents and her sister were cross-examined. The evidence of the other witnesses in her case went in unchallenged.
The respondent, in her case, gave evidence, and she was also cross-examined. Her only witness, her mother, was also cross-examined.
The family report writer prepared a report in this matter. Ms D’s evidence assisted me, and she was cross-examined at some length.
Relevant Factual Issues that are in Dispute
Who has been the Primary Carer for these Children?
Ms Elia’s counsel seeks to have me find that:
a)Ms Wilson’s plans for the week-about arrangement were disorganised and unrealistic in terms of her financial position;
b)
Ms Wilson lacked insight into the relationship status with
Ms Elia;
c)There was an ulterior motive for restraining Ms Elia from leaving Canberra because Ms Wilson was still attached to Ms Elia; and
d)Ms Wilson was lying about a plan to leave Canberra in terms of a family plan that had been on the agenda for a long time.
The Primary Carer
I am satisfied that Ms Elia provides that role in circumstances where it is clear that she carried the children and then spent the first year available to care for them and has, overall, been the person largely responsible for their physical care because she has been working part-time or not working for much longer periods that Ms Wilson. That, in no way, diminishes the relationship these boys have with Ms Wilson. When I raised the matter with the expert and asked her to provide some observations with respect to the arrangements for these children and the primary care and attachment, she gave me some evidence that assisted me to understand the nature of the relationships.
The Issues Relating to Ms Wilson
With respect to the findings that Ms Elia’s counsel seeks me to make, I am not prepared to make a finding that Ms Wilson’s plans for a week-about arrangement were disorganised and unrealistic. Counsel for the applicant points to the financial position of Ms Wilson to support this. I am satisfied, if I were to make a week-about arrangement, that the respondent would make it happen as of immediately this judgment issues, and she would ensure that, financially, these children were supported, and that they were physically and emotionally supported.
I am not satisfied that Ms Wilson lacks insight into the relationship status with Ms Elia. She may do, but I am not going to make that finding. I do not consider that assists me in any way in coming to the decision about what is in these boys’ best interests. Nor am I prepared to make a finding that she has an ulterior motive for restraining Ms Elia because she still has an attachment to her.
It is very clear that Ms Wilson is very fond of these boys and, through her counsel, provided submissions that it would not be in their best interest for them to move away from her because of the attachment and because of their age. I am not prepared to make that finding.
Ms Wilson has indicated in her evidence, with respect to the issue of plans to leave Canberra, that she is in a very well-paid and interesting position. It is a position that is only available at [A]. Ms Wilson is described, by her own evidence, as a world expert. So whether she may or may not have had plans to leave Canberra in the past, it is entirely understandable why she does not wish to leave Canberra at the moment. The plans for Ms Elia to leave Canberra go back some time and, certainly, her sister’s evidence corroborates this.
The plans seem to be supported by the evidence provided in the applicant’s diary. I do not have to make any findings about this issue. I accept that Ms Elia has a good reason for going, even though she does not need to show a good reason, according to the cases on relocation.
The Legal Principles
I have referred to the decision of Kent J in Heath & Hemming (No 2) (supra). I am not going to detail that law other than with a very brief summary.
The principles governing the determination of this matter are set out in the Family Law Act 1975 (Cth) (“the Act”). There is a presumption of equal shared parental responsibility, and I have the power to make parenting orders in relation to these children. In deciding whether to make a particular parenting order, I have to regard the children’s best interests as my paramount consideration.
In relocation cases, I have to balance that with the right of the parents to have a freedom to move. In determining the children’s best interests, I have to consider the primary considerations and a number of additional considerations.
The Primary Considerations
Turning now to the primary considerations, I have to decide whether there is a benefit to the children having a meaningful relationship with both of their parents and whether there is a need to protect [X] and [Y] from physical or psychological harm, or from being subjected to, exposed to abuse, neglect or family violence.
My conclusion with respect to the primary considerations is that it is important for [X] and [Y] that they have a meaningful relationship with both of their parents. Fortunately, there is no need to protect the children from being exposed to the risk of family violence, harm or abuse. My reason for coming to that conclusion is that both parents, to their credit, acknowledge that it is important for the children to have a meaningful relationship with the other parent.
The parties have both had a committed involvement as parents in these children’s lives, and I treat these primary considerations, and my findings, as central to the structure of the orders that I ultimately propose to make in respect of the best interests of [X] and [Y].
Additional Considerations
The children’s views
Section 60CC(3)(a)
The children’s views are of no assistance to me, given their age, and they are not recorded.
The Children’s Relationships with Significant Persons
Section 60CC(3)(b)
I have to look at the nature of the relationships of the children with each of their parents and other persons. I have already found, when referring to the primary considerations, that both children have a close and attached relationship with the parents. I am assisted by the expert, Ms D. In her original evidence, under cross-examination by
Mr Sansom, Ms D said (at transcript of 14 February 2012 at page 11):
“[5] …I think their primary attachments are pretty strong to both of them.”
She goes on (at transcript of 14 February 2012 at page 19) to say, in answer to a question I asked:
“[5] … HER HONOUR: Can I just ask a question before you answer that. I have heard evidence from other experts that there is only one primary attachment. Now, I don’t know – when I heard you say that today, I was surprised because I have heard the contrary, that it’s the quality of that primary attachment, that one attachment, and if it’s not well looked after in that first 12 months, it causes terrible trouble for the children?”
Ms D answered:
“[10]… yes.”
I then continued:
“[10] … But there is the one and then there can – it’s from that that all the other strong and positive relationships develop?”
The expert replied:
“[15] … Your Honour, that’s absolutely correct and of course it is the birth mother, that primary attachment ideally and in this case it was ideal. But these children over that period have formed a strong attachment too, I think that’s what I am saying, I’m sorry to qualify it, so I think there are – there is a strong attachment to the second parent in this case. …”
I therefore accept that Ms Elia, as I have indicated, has the primary attachment with respect to these boys, but that there is a very strong attachment for Ms Wilson, as evidenced by the expert.
All of the grandparents impress me as people who have these little boys’ best interests at heart and who have a lot to offer these boys. The evidence suggests that the boys have spent more time with Ms Elia’s parents to date. However Ms W, a very energetic 71 year old who had been a [omitted] in her professional life, plans to spend more time with the children and be closer to her daughter. The children, it seems to me, have a good opportunity to continue to develop the relationship with her.
Given the time that Ms Elia ensures the children spend with her parents, I am satisfied this will ensure that they have a positive relationship with those people. I note that the applicant also refers to the children’s cousins on Ms Elia’s side of the family and that they have spent some time with the boys. These are all relationships that should be nurtured and developed and no doubt will be.
Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, I will deal with a number of the headings under s.60CC and ss.60CC(4) and (4A) because I consider they are all related.
I have to consider the willingness and the ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Ms Wilson has a concern that Ms Elia’s parents, in particular the grandmother, may not support the relationship between herself and the children. There have certainly been tensions between Ms Wilson and Ms Elia, and that has been effectively since the birth of these twins. I have no doubt that this has created difficulties for all concerned. However when I look at the nature of the relationship that the boys have with Ms Wilson, I am not persuaded that there has been any difficulty, at this stage, in the ability of the children’s parents to encourage and facilitate a continuing relationship between the children and the other parent.
I have to look at the capacity of each of the children’s parents to provide for the children’s emotional and intellectual needs. These are both two very, very capable, intelligent women. They will no doubt assist these boys in their schooling, and their intellectual needs will be well met by both parents. Their emotional needs, to date, seem to have been well met by their parents. There is no suggestion that these boys have any emotional difficulties arising out of ineffective or inefficient parenting. I am satisfied that these parents can support these children, physically, with the incomes that they have.
The submissions on behalf of Ms Elia by her counsel, that Ms Wilson was somehow careless or thoughtless in her proposals with respect to nurturing and providing physically for these boys, I do not accept. I, having seen her in evidence for a number of hours and I am satisfied that she is a woman that would ensure that these children are well fed and housed and well cared for while they are in her care.
I have to look at ss.60CC(4) and (4A) to determine whether the children’s parents have fulfilled or failed to fulfil their responsibilities as parents and, in particular, the extent to which the children’s parents have participated in making decisions about major long-term issues and spending time with the children and communicating with the children and facilitated the other parent in doing that. I have already found, when referring to the primary considerations, that the parents were both actively involved in the day-to-day care of these children before separation, with the applicant taking the role of the children’s primary carer.
Since the orders of Brewster FM, Ms Elia has provided primary care for the children and Ms Wilson has become very involved in the day-to-day care. Those orders were made in August 2011. I am satisfied, therefore, that both parents have the capacity to provide for the day-to-day physical needs of the children and that they have fulfilled their parenting responsibilities to facilitate and encourage a close and continuing relationship between the children and the other parent.
The evidence of Ms D, relating to the parents’ capacity to communicate, is of concern. I note the transcript of 14 February 2012 at page 17. It was put to the expert a question about Ms Elia having a physical response to just ordinary intercourse of a spoken or face-to-face nature with Ms Wilson. The expert said:
“[15] … Yes, she’s feeling edgy and negative you are saying.”
Ms Druitt, counsel for the applicant, went on to say:
“[15] … Yes, and that’s really an enormous breakdown in their ability to communicate, isn’t it?”
The expert responded:
“[15] … Well, it certainly is a problem.”
Ms Druitt continued:
“[20] Right, and it’s a problem that you would be very hesitant – I withdraw that. That with the inference you have drawn, it would make you hesitate to move to shared care on an equal footing, wouldn’t it?”
The expert replied:
“[20] … It could create problems. I mean, because they have handled things so well, that’s why I have even considered shared care but there is always that problem. We all know now that shared care can be dreadful for children and if it got worse---
[25] … Why would shared care be dreadful for children, particularly at this age?- - -”
The expert went on to say:
“[25] …Well, because if the parents don’t get on and the children start intuiting this negativity …”
I am conscious of that. However it is fairly recent, the evidence of that, and I am hoping that it has simply been in relation to the litigation and it will pass once the litigation has finalised.
The Effect of Change
I have to consider the likely effect of any changes in these children’s circumstances, including the likely effect on the child of separation from either of the parents or any other child. In relation to this particular trial, this is a very significant matter. If relocation occurs, the children will, of necessity, spend less time with Ms Wilson. Ms D, in her evidence on 14 February 2012, at page 5 of the transcript, said this when she was asked a question by Mr Sansom:
“[10] … if you could just turn to paragraph 46 of your report – once sentence paragraph. I’m going to ask you whether that view you express there – putting aside the following paragraphs as to recommendations and summaries – is that what you say would be the optimal for the children to experience in terms of their time with each parent – extensive time with each significant person?”
The expert answered:
“[15] … I – well ideally that would be the case, yes.”
Further on, at page 6, Ms D was asked some further questions by
Mr Samson:
“[15] … the twins, because of their cognitive development, wouldn’t yet have a real sense of time?”
Ms D replied:
“[15] … No. They think of two sleeps, or six sleeps, and even then they have to count them.”
Mr Samson was discussing with the expert, at that stage, the prospect of the children moving to Canberra. Mr Samson then went on to say:
“[20] And even when they count them they don’t really, at this age, comprehend that?”
The expert agreed and said:
“[20] … No, that’s correct.”
Ms D went on, further on in the page, to point out that:
“[40] … it can be difficult for young children …”
With respect to the same issue, on page 7 of the transcript of 14 February 2012, counsel raised the difficulty if the children are being transported by people that do not have a positive view about Ms Wilson. The expert said:
“[25] … that the people involved, how they handle it will make a huge difference in what happens with the children.”
Counsel queried:
“[25] … And if there were resistance by those agreeing to or obliged to carry out that transportation, is it possible that that could impact upon the children’s desire to go?”
Ms D replied:
“[30] … Yes, I guess it could, if they were letting the children know.”
So I am conscious that the effect of any change in these children’s circumstances will be significant if I allow them to go. Firstly, because of their age and the difficulty with understanding time and their cognitive ability at this stage. Secondly, because of the difficulties that exist, potentially, about having to be transported for long periods of time on a regular basis. The expert, when preparing for cross-examination, realised that there have been some studies in America around Skype. The evidence is contained at page 9 of the transcript of 14 February 2012. Ms D said that:
“[15] … apparently they’ve been shown to be quite helpful to children. It’s new thinking, and so some papers came out last year which I hadn’t seen previous…”
She said:
“[20] … it has been very positive in most studies.”
Ms D went on to qualify that by saying:
“[30] … you know, cuddling someone and talking to them and – is much nicer than looking at a picture …”
However I note that the Skype study suggests that these children will be able to potentially continue to develop a relationship with
Ms Wilson even if they are living in Sydney, some distance away from her.
Orders that are least likely to Result in Further Litigation
I have to look at the orders that are least likely to result in further litigation. It is not apparent that the proposal of the applicant, Ms Elia, or the respondent, Ms Wilson, is least likely to lead to further proceedings.
The uncertainty of these boys’ development over the next 18 months potentially could support an adjournment and a further report. However I do not consider it is in the boys’ best interests to have this litigation lingering on for another period of time while their cognitive development is going on. Certainly, neither parent sought that. I am therefore satisfied that it is not appropriate to further delay a decision in this matter. I accept the evidence of Ms D with respect to this issue, where she said at page 8 of the transcript of 14 February 2012:
“[5] … When they reach about five, they can have more of a sense of time, as we talked about, and so, yes, I think round about five it becomes slightly easier for children to adapt. Cognitively, they would be – they would have been through something too, you know. They would have learnt more.”
She then went on, at the end of page 8, to say:
“[40] … I mean, these two have been very engaged with these children and both admit they each love them a lot and that, I hope, will continue. I mean, obviously, everything is going to change, but it may – maybe distance will lend some – sorry, I’m waxing on here, but it could lend some enchantment to the view. … time, if it could be left a little longer to just give the children more time to grow and, you know, cognitively understand, but to actually put - - -”
Ms D went on to say at page 9:
“[5] … I suppose I was thinking at about five.”
Parental Responsibility
Under s.61DA, when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. I am fortunate in this case that both parents have agreed to that order, and I intend to make that order.
I then, as a consequence of that, am required, under s.65DAA(1) and (2), to consider whether, on making orders, that the children spend equal time and, if not equal time, then substantial and significant time with the other parent.
In terms of equal time, in this matter, there was issue raised by the parents to suggest that the children spending equal time was not practical if they remain living in Canberra. Of course, it would be clearly impractical if I allow the children to relocate to Sydney. However, I am not satisfied, given the findings I have already made, that it would be in the children’s best interests for an order for equal time to be made for the following reasons:
a)These boys have a primary attachment to the applicant;
b)They have spent more time with the applicant;
c)They are still only three years old, although I know they will be four in March; and
d)I note that Ms D observed, on the second day of her evidence (at page 11 of the transcript of 15 February 2012) that:
“[20] … in terms of the relationship that they have with
Ms Wilson at the moment, the five days that they’ve got, in your – can you comment on the sort of – the appropriate of that at this stage?”
Ms D goes on to say:
“[20] … I guess, your Honour, because they are seeing her every week – they go on Wednesdays and have the night and then they have that – the second – every second weekend, little children do need to have – see people frequently, rather than big blocks and that is what’s happening. I mean, over the period, the weekend or – it could possibly increase by one night, but would, you know – it could sort of just happen gradually. Because little children do need frequency, rather than a big block, as we all know.”
e)The children are also, in my assessment, doing very well in terms of the present arrangement. Because of the ultimate orders I intend to make, I wish to take a cautious approach with changing anything in these children’s lives at this stage; and
f)
Finally, I am not satisfied that these parents have the level of communication necessary to allow an equal time arrangement to succeed. I note that it is Ms Elia who has put this proposition of the difficulty in communication up, and it is not noted by
Ms Wilson. The very fact that the parties have had to come to Court for a final determination suggests that their capacity to communicate is not ideal.
Substantial and Significant Time
I then have to consider substantial and significant time. In the present case, if the applicant remains in Canberra, the children will be having substantial and significant time because the orders that are currently in place provide for five nights a fortnight, being some days on the weekend and some days during the week. I am satisfied that the current proposal is in the children’s best interests for the following reasons:
a)It has been working;
b)The children are used to it;
c)The level of communication required to maintain it has not undermined, in any way, the relationship between Ms Wilson and the boys; and
d)It gives me an opportunity to increase the blocks of time with the children and Ms Wilson to enable them to have longer periods with her over a period of time.
Ms D recommends a cautious approach to this. I intend to adopt the current arrangements while the children remain in Canberra and increase the blocks of time and the length of time gradually.
The Relocation
In considering the competing proposals in relation to the relocation, I have to weigh up what is in the children’s best interests with the parents’ right to choose where they live. I accept that the applicant does not need a reason to relocate. However, in the present case, her reasons are reasonable. She has professional reasons. The unchallenged evidence of two of her colleagues is that it is common for [occupation omitted], in their training, to obtain wider experience. Leaving Canberra and taking on a position in one of the Sydney [workplace omitted] would provide her with that wider experience that will improve her professional standing. On Ms Elia’s evidence, the qualification and experience will enable her ultimately, once she is qualified, to work part-time and provide more time with these boys.
The other reason that Ms Elia has for relocating, in the second lot of reasons, are personal and they are that she can spend time with her extended family. I have no doubt that that is an appropriate reason. I note that Ms Wilson has concerns with respect to Ms Elia’s mother being a negative influence that would cause some difficulty in the relationship between herself and the boys. It is not obvious, to date. Ms Wilson has a very positive relationship with the twins.
Ms Elia’s family called Ms Elia’s sister’s former husband “shit for brains”, which I found unacceptable and unforgivable. If the children heard such a comment, it would be very unfortunate for them. I intend to put a non-denigration clause in the orders that I am making to ensure that these boys never hear such appalling language about either parent from the other parent. I trust, given their intelligence and the way that they have cared for these boys to date, that they would not contemplate using such language.
I have to consider the relationship between the children and Ms Wilson and accept that it must be protected and nurtured. I accept that a relocation will not be ideal because of the time limits that the children will have in spending time with Ms Wilson.
I also accept, from Ms Wilson’s evidence, that she is unlikely to move to Sydney with the boys. I make no criticism of that because she is in an excellent position. It is a unique position in Australia and she is a world recognised expert. I also accept that the capacity for the children to relate to Ms Wilson with less frequency may improve as they get older because of their understanding of time and their cognitive ability to understand when they will be seeing “Mutti” again. The evidence of the expert assisted me in respect of that issue. I also have taken into account the capacity of the children to relate to Ms Wilson, which I am hoping will be improved by spending some time on Skype.
The Skype evidence from Ms D was positive. If the children start using Skype now, I consider that it will be of assistance to them to ensure that their relationship with Ms Wilson is nurtured. I am going to require that the use of Skype commences now, so that the children become used to using Skype. I note Ms D’s observations at paragraph 50 of the family report, where she said that:
“[50] Ideally, when the children are older, and can more fully comprehend less time with a parent, the situation would be more equitable. At their young stage Skype, and telephone, or letters are unlikely to work positively, as the children are too young.”
So the twins will just be introduced to Skype over the next period of time.
I am, therefore satisfied, on the balance of considering the competing claims of the children’s best interests and Ms Elia’s right to be able to move, that it is appropriate to allow the applicant to relocate the children’s residence. I am not satisfied that should occur until October of 2013, with the children to commence school in 2014 in Sydney. That is a proposal Ms Elia supports. I note that Ms Wilson wishes for the children to commence school in 2013, but that would provide some difficulty in this matter. I hope that the parents can resolve that issue. I do not intend to resolve it today.
I have based this decision on the fact that the twins will not be starting school until 2014. I intend, in the meantime, to put orders in place for the time that Ms Wilson has been enjoying with the children since the order of Brewster FM and then increase the time that she spends with the children in 2012 to provide her with four blocks of four nights at times that she nominates. Ms Wilson will need to give Ms Elia notice in writing. In 2013, I am proposing four blocks of five nights, and again, Ms Wilson is to nominate those dates and give Ms Elia notice in writing. Then from January of 2014, I am going to put two one-week blocks in place, which will enable the children to spend two separate weeks with Ms Wilson once they have gone to Sydney and before they start school. After that, I intend to put half of all of the school holidays in place and I am looking at orders for Christmas Day and Mother’s Day.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Cassidy FM
Date: 20 June 2012
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